Mrs A Pereira v Wellingtons Antiques Ltd and J M Wellington: 3303997/2023

EMPLOYMENT TRIBUNALS

Case No 3303997/2023

Between

Mrs A PereiraClaimant

Wellingtons Antiques Ltd and J M WellingtonRespondent

Before

Employment Judge Annand

Date 25 February 2025

JUDGMENT

[1]By consent, the Claimant’s claims for unauthorised deductions from wages, holiday pay and sick pay succeed.

[2]The First Respondent is ordered to pay the Claimant a net total figure of £4,632.16, which comprises:(1) £230.96 for wages owed to the end of November 2022.

(2) £16 for wages owed in December 2022.

(3) £2,520 for wages owed between January 2023 and March 2023.

(4) £689.20 for statutory sick pay.

(5) £1,176 for holiday pay.

[3]The Respondent is liable for any tax and National Insurance payments owed to HMRC in respect of this payment. CORRECTED JUDGMENT

[1]The Claimant’s complaint of breach of contract in respect of a commission payment in the amount of £2,000 is well founded and succeeds.

[2]The Claimant’s complaint of breach of contract in respect of the Respondent’s failure to make employer pension contributions between 20 October 2021 and 7 March 2023 is well founded and succeeds.

[3]The Claimant’s complaint of wrongful dismissal is well founded and succeeds.

[4]The Claimant’s complaint of direct race discrimination is not well founded and is dismissed.

[5]The Claimant’s complaint of direct sex discrimination is not well founded and is dismissed.

[6]One of the Claimant’s complaints of harassment related to sex, namely that in November 2021, the Second Respondent asked the Claimant why she Case No: 3303997/2023 wanted to work, why she needed to earn money, and asked about her husband, is well founded and succeeds. The remaining complaints of harassment related to sex are not well founded and are dismissed.

[7]The Claimant’s complaint of harassment related to race is not well founded and is dismissed.

[8]Two of the Claimant’s complaints of victimisation, namely that(1) in January 2023 she was placed on garden leave, and

(2) in March 2023 she was not reinstated from garden leave, are well founded and succeed. The remaining complaints of victimisation are not well founded and are dismissed.

[9]The Claimant’s claim of automatic unfair dismissal on grounds of having asserted a statutory right is not well founded and is dismissed.

[10]The Claimant’s claim she was subjected to less favourable treatment on grounds of being a part time worker is not well founded and is dismissed. Approved by: CORRECTED REASONS An oral judgment and reasons, regarding liability, having been given to the parties at the hearing on 31 January 2025, and written reasons having been requested at the hearing in accordance with Rule 60 of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided: Introduction

[1]The Claimant was employed by the First Respondent, an Antiques business, as a part-time sales assistant. Her employment started in October 2021 and ended on 7 March 2023. The Claimant contacted Acas for early conciliation purposes regarding the Second Respondent, who is the owner of the First Respondent, on 24 February 2023 and the Early Conciliation certificate was issued on 15 March 2023. She contacted Acas for early conciliation purposes regarding the First Respondent on 30 March 2023 and the Early Conciliation certificate was issued on the same day.

[2]On 14 April 2023, the Claimant submitted a Claim Form to the Employment Tribunal against the First and Second Respondent. She brought claims of unauthorised deductions from wages, a failure to provide an itemised pay statement, failure to pay her holiday pay, breach of contract, part-time worker detriments, direct race discrimination, direct and indirect sex discrimination, harassment, victimisation and automatically unfair constructive dismissal on grounds of having made a protected disclosure.

[3]In July 2023, the Respondents submitted a Response.

[4]On 3 January 2024, a final hearing was listed at Reading Employment Tribunal from 2-5 September 2024.

[5]On 29 January 2024, a preliminary hearing was held by Employment Judge Michell. At that hearing, the First Respondent agreed to pay the Claimant £4,671.04, which she was claiming as outstanding wages that she had not been paid. It was clarified that the Claimant was not pursuing a claim of automatically unfair constructive dismissal on grounds of having made a protected disclosure but was claiming automatically unfair constructive dismissal on grounds of having asserted a statutory right. Employment Judge Michell ordered the Claimant to provide Further and Better Particulars of Claim.

[6]Following the preliminary hearing, a judgment was issued dismissing on withdrawal the Claimant’s complaints of indirect sex discrimination and automatically unfair constructive dismissal on grounds of having made a protected disclosure.

[7]There was a further preliminary hearing in April 2024 at which various case management orders were made.

[8]On 2 September 2024, the parties attended the final hearing at Reading Employment Tribunal. They provided the Tribunal with two bundles. A main bundle running to 283 pages and the Claimant’s Supplementary Bundle running to 247 pages. The Tribunal was also provided with four witness statements, one from the Claimant, and her witness, Mr Burr, and one from the Second Respondent and his witness, Ms Anya Feather. All of the witnesses gave oral evidence.

[9]At the start of the hearing, both sides made applications. The Claimant applied to strike out the Respondent’s Response. The Respondent applied to strike out the Claimant’s claim and applied for the hearing to be postponed. All of those applications were rejected, and oral reasons were given for those decisions at the time. The Claimant has since requested written reasons for the Tribunal’s refusal to strike out the Respondents’ response. The reasons for that decision will be sent separately so as not to delay the provision of the written reasons for the decision on liability which the Respondents have requested urgently.

[10]On the first day of the hearing, while the Respondent was considering its response to the Claimant’s initial application, I produced a list of what I understood the Claimant’s complaints to be, based on the Further and Better Particulars that had been provided. A List of Issues had not been agreed at either of the preliminary hearings and the parties had not agreed a List of Issues in advance of the hearing. I provided a copy of the list to counsel and asked for their comments. They both agreed that the list was reflective of the Claimant’s claims.

[11]During the course of the hearing, the parties were able to agree the remaining parts of the Claimant’s unauthorised deductions from wages claims and agree her claim for holiday pay. The First Respondent agreed to pay the Claimant £222.96 for wages she said she was owed for the period up to December 2022 and agreed to pay her £2,520 for the income she was owed from 1 January 2023 to 7 March 2023, which was for the period she was on garden leave. The First Respondent also agreed to pay the Claimant £689.20 for 8 days of statutory sick pay and £1,776 for holiday pay. Following the hearing, a judgment, made by consent, was sent to the parties on 27 November 2024. It required the First Respondent to pay the Claimant a total amount of £4,632.16.

[12]As a result, the remaining claims, which the Tribunal had to decide at the final hearing, were: a) A claim for breach of contract in respect of £2000 for a commission payment which the Claimant said she was owed. b) A claim for breach of contract for the failure to pay employer pension contributions. c) A claim for breach of contract in respect of the failure to pay the Claimant one week of notice pay. d) Claims of direct race and sex discrimination. e) Claims of harassment related to sex and race. f) A claim of victimisation. g) A claim of constructive automatically unfair dismissal for assertion of a statutory right. h) A claim the Claimant was subjected to detriments because she was a part-time worker.

[13]During the four-day listing, the Tribunal was able to hear the evidence and the parties’ submissions, but the Tribunal did not have time to deliberate. It was intended that the Tribunal would meet to deliberate on 1 October, and the parties would attend the Tribunal for an oral judgment at 2pm on 2 October 2024. A provisional remedy was to be listed on 3 October 2024, and it was to be vacated if not required. Unfortunately, I was unwell in the first week of October, and all three days were postponed. The Tribunal then identified a day in November on which all three members of the panel were able to deliberate but again for reasons related to one of the Tribunal member’s health, we were unable to meet on that day. The next day when all the Tribunal were able to meet was 7 January 2025. We deliberated on this day, and again on 22 January 2025 as more time was needed. A hearing was listed for 31 January 2025, to give an oral judgment and to then consider remedy if appropriate. At the hearing, on 31 January 2025, I apologised to the parties for the fact that they had to wait far longer than is ideal to hear the outcome of this case. Regrettably this was unavoidable. At the hearing, I gave an oral judgment on liability, and the Respondent requested written reasons. Findings of fact

[14]The Claimant was employed by the Respondent as a part time retail assistant. The Claimant is of South Asian ethnic origin. The First Respondent is a business which sells antiques from a shop located in Windsor. The business was set up in 2018. The Second Respondent is the owner of the First Respondent business.

[15]The Second Respondent also has a jewellery business. The jewellery business was previously owned and run by his father, Mike Wellington, but was taken over by the Second Respondent. The jewellery business has two premises, one in Marlow and one in Wokingham.

[16]The Respondents argued the two businesses are separate entities, although it was apparent that there was some considerable overlap in the manner in which they were run. For example, the Second Respondent accepted in his oral evidence that on occasion, he would pay the staff who worked in the antiques business from the bank account of the jewellery business. In addition, the Second Respondent confirmed that some of the members of staff, such as Kim Gosney, worked in the jewellery stores in Marlow and Wokingham and also worked in the antiques store in Windsor. The Second Respondent’s sister-in-law, Ms Feather, gave evidence that she was employed by the antiques business, but that in 2021 she moved to work on the jewellery side, although until 2024, she continued to be paid by the antiques business. The Tribunal were also provided with a large number of rotas which showed a single rota for the three sites in Marlow, Wokingham, and Windsor. The rotas set out which member of staff was working in which location.

[17]There was a disagreement between the parties about how the Claimant came to be offered employment with the First Respondent. The Claimant said she had an interview with the Second Respondent and Ms Feather in the First Respondent’s premises in August 2021. She said the Second Respondent told her to contact his father, Mike Wellington, who after retiring from the jewellery business, worked in the Antiques shop. The Claimant said she contacted Mike Wellington, completed a number of trial shifts, and then was offered a role working three days per week from October 2021. The Second Respondent said in his witness statement that he telephoned the Antiques shop in January 2022 and was surprised when the Claimant answered the phone. He said he thought the Claimant did not start working for the First Respondent until January 2022.

[18]The Tribunal found the Claimant started working for the First Respondent from around 20 October 2021. The Claimant started appearing on the rotas from this date. Initially her name was added to the rotas by hand but by the end of November 2021 she was being added to the typed versions of the rotas.

[19]The Claimant said it was agreed with Mike Wellington that she would be paid £10 per hour and would be paid for 7 hours per day, so a total of £70 per day. The Claimant said the Second Respondent later tried to say she would only be paid £9 per hour. That was not a factual dispute that we needed to resolve because the Claimant has now been paid for all the hours that she worked, and she has been paid at a rate of £10 per hour.

[20]The Claimant said that when she was employed, she was reassured by the Second Respondent that it would “all be done properly”. She would be paid by way of PAYE, would be paid holiday pay, and she would be enrolled in a pension. This was disputed by the Respondents.

[21]The Second Respondent’s evidence to the Tribunal was that the Claimant was not given a contract of employment because she was a probationer, and her probation period had been extended. He accepted that one of the First Respondent’s employees, Keshab Asharpatti, who was employed as a Master Jeweller, was offered a contract of employment. The Second Respondent’s evidence was that he gave Mr Asharpatti a contract of employment in 2019 and this was then not renewed, although Mr Asharpatti continued working for him after this period. The Second Respondent also set out in his witness statement that Mr Asharpatti did receive sick pay and holiday pay.

[22]Throughout her employment, the Claimant was not paid by PAYE, and she was not given payslips. The Second Respondent did not have an explanation for this. He said in his witness statement that he would need to check with the accountant. The Second Respondent said in his oral evidence, when asked about what he discussed with the Claimant at the time that her employment started, that he said to her that the issue of her pay would be passed to the accountant and would be dealt with by him.

[23]The Second Respondent denies that when the Claimant was first employed, he said she would be enrolled in a pension. He said in his witness statement that if she had stopped being a probationer then the issue of a pension would have been considered at that point.

[24]The Tribunal accepted that when the Claimant was employed, she was told by the Second Respondent that her employment would “all be done properly”, that she would be paid via PAYE, paid holiday pay, and enrolled in a pension. The Second Respondent confirmed in his evidence that Ms Feather and Mr Asharpatti were paid by PAYE, so the Tribunal considered it was likely that the Second Respondent told the Claimant that she too would be paid by PAYE.

[25]The Claimant set out in her witness statement that on 18 November 2021, the Second Respondent came into the Antique shop with Ms Feather. The Claimant said that she provided the Second Respondent with her bank details on this occasion. She said that during the conversation the Second Respondent then asked the Claimant some personal and intrusive questions. She said the Second Respondent said they were like family, asked her about her faith, said they were Catholics, and said she could trust him. She said he asked her why she wanted to work and what drove her so much in sales. The Claimant explained her family situation, her relationships and her financial situation. The Claimant said in her oral evidence that the Second Respondent asked her why she needed the money and asked about her husband. She said she needed sustainable employment, and commented this was challenging given her age and South Asian origin. The Claimant said that the Second Respondent responded by saying, “blacks and gays have it worse”. The Claimant felt this invalidated her experience.

[26]In his oral evidence, the Second Respondent denied having said “blacks and gays have it worse”. He said he had not asked her about her family or her finances but had asked her what made her enjoy sales. He said he could not recall if he asked her why she wanted to work.

[27]The Tribunal found that the Second Respondent did ask the Claimant why she wanted to work, why she needed to earn money, and asked about her husband. The Tribunal accepted the Claimant’s version of events because in the Supplementary bundle of documents provided by the Claimant was a typed version of a diary. The Claimant’s evidence was she kept a diary at the time, and from that diary, she typed up the notes which appeared in the bundle, although she accepted that she had added some comments later. Some parts of the diary were in red, and some were in blue. The Tribunal noted that the Claimant had recorded in her diary that she was asked these questions by the Second Respondent on 18 November 2021.

[28]On 3 December 2022, the Second Respondent and Ms Feather attended the Antiques shop again. The Claimant said on that occasion she was given what she described as ‘skeleton terms of employment’. The document related to matters such as the sales protocol, security, staffing and conduct, as well as other practical matters, but made no reference to pay. The Claimant said she asked about her pay and was told the matter was being dealt with by the First Respondent’s accountant, Jeff Hazelgrove. The Tribunal accepted this happened because this is consistent with the Second Respondent’s explanation in his witness statement, and his evidence to the Tribunal, which was that in his mind the issues relating to pay were being dealt with by the accountant.

[29]The Claimant recorded in her diary that it was on 3 December 2021 when the Second Respondent said to her that “blacks and gays have it worse”. The Claimant wrote in her diary that she opened up to the Second Respondent and Ms Feather and explained she was desperate for work, but said it was difficult for her as a mature Asian to find work. She recorded in her diary that it was at this point that the Second Respondent said that “blacks and gays have it worse”. The Tribunal found that this comment was said by the Second Respondent on 3 December 2021, rather than on 18 November 2021 which was the date set out by the Claimant in her witness statement. The Tribunal accepted this happened on 3 December 2021 because the Claimant recorded it in her diary at the time.

[30]The Tribunal noted that by this time, the Claimant had been employed for over a month and had not been paid.

[31]In mid-December 2021, the Claimant was given a letter by Mike Wellington. She was asked to take a photo of it and send it to the accountant. It was a letter from HMRC addressed to Wellington Antiques Limited. It related to a failure to pay PAYE tax and national insurance contributions. This letter supported the Claimant’s case that at least some of the First Respondent’s other employees were paid by way of PAYE.

[32]The Claimant worked up to December 2021 without having received a payment of wages. The Claimant recorded in her diary that she asked the Second Respondent about her pay on 24 December 2021, and he said it had been sorted, but no payment was received.

[33]On 21 January 2022, the Claimant drove to the Wokingham branch of Wellington Jewellery to ask about her pay. The Claimant said she had a meeting with the Second Respondent who told her that there were some delays with HMRC. The Claimant said at this meeting the Second Respondent agreed she would work a minimum of three days per week and asked her to work more hours. The Claimant wrote in her witness statement that at this meeting, the Second Respondent also asked her to put together a business plan. The Second Respondent denied in his oral evidence that he had ever asked the Claimant to write a business plan, but the Tribunal found he had, because on 23 February 2022, the Second Respondent sent a text message to the Claimant in which he said he was very keen to meet with her next week “with her written plan we discussed” (p61).

[34]In mid-February 2022, the Claimant was off work for six days as she was unwell. The Claimant said she was not paid sick pay for those days. On 14 February 2022, the Claimant sent a text message to Ms Feather saying she had returned to work on Thursday despite not being 100%. She said she had become ill again, and thought it was best if she took time to recover and return on the following Tuesday.

[35]In February 2022, the Claimant worked increased hours in the Antiques shop, including working 5 days in the week of 28 February 2022. The Claimant said in her evidence she worked additional hours in February because the Second Respondent, Mike Wellington, and Ms Feather were away on holiday together.

[36]By the end of February 2022, the Claimant had still not been paid any wages.

[37]On 23 February 2022, the Claimant sent a text message to Ms Feather in which she explained she had sent a message to the Second Respondent setting out the days she had worked since October 2021. She wrote that she had been told she would be paid on 9 February 2022 but that she had not been and asked again to be paid.

[38]On 1 March 2022, the Second Respondent and Ms Feather attended the Antiques store and gave the Claimant £1,300 in cash as a payment towards her wages. The Claimant said in her evidence she asked about an itemised pay slip, PAYE, NI, and the pension contributions, and the Second Respondent replied that it was being dealt with by HMRC and said the Claimant had “no right to a contract until he deemed ready.” The Second Respondent denied having said this in his oral evidence, but the Tribunal found this was said. It was consistent with his evidence that she was not entitled to a contract until she was no longer a probationer.

[39]The Claimant says that when the Second Respondent paid her on 1 March 2022, he also said that he had conducted a background check and saw she was registered with Companies House. The Second Respondent denied he had said that he had done a background check on her but accepted he had looked online and seen she was registered at Companies House. He explained he had done this because it was “a high-risk business”, by which the Tribunal understood he meant that he needed to trust his staff because they handled some high value goods.

[40]On 1 March 2022, the Claimant sent a text message to the Second Respondent in which she thanked him for the part payment of her salary and said she would “prepare a little proposal as requested for you” (p61). The Tribunal noted that although the Claimant had been paid some of her wages on this date, there was still a shortfall in what she was owed.

[41]Over the following months, the Claimant received some payments for her wages. However, she was paid different amounts on different dates. She was not given pay slips, and she continued to have a shortfall. The Claimant was not enrolled in a pension scheme, and she was not paid by PAYE.

[42]On 11 May 2022, Ms Feather sent the Claimant a text message in which she asked the Claimant if she had taken tax and national insurance into consideration. The Claimant responded stating that she did not think that she had reached the threshold for tax and noted that there was £2,000 outstanding for her pay up to the end of April and asked to be paid.

[43]The Claimant wrote in her witness statement that she found out in May 2022 that Mr Asharpatti was being paid monthly, was registered with HMRC, and had a contract of employment. She says he showed her his contract. The Second Respondent said in his oral evidence that although he was not fully sure he thought Mr Asharpatti and Ms Feather were paid monthly and paid by PAYE.

[44]The Claimant’s evidence was that Ms Feather, and another two White British employees, Kim Gosney and Sharon Curtis, were paid monthly and on PAYE, whereas herself and Laney were not. The Claimant said that Laney, who worked part-time for the Jewellery business, described herself as being of Gypsy origin. The Claimant’s evidence was that she knew from speaking to Laney that she was also paid sporadically, randomly, or not at all.

[45]The Claimant’s evidence was also that those who worked full time were paid £80 per day, whereas she, who was part-time, was paid £70 per day. The Claimant’s evidence, which was not disputed by the Respondents was that she was very good at sales, and brought in more revenue than her colleagues, and yet was still paid less.

[46]In his witness statement, the Second Respondent confirmed that Ms Gosney and Mr Curtis were paid a pension but noted they were full time whereas the Claimant was part-time and still a probationer. He also set out that Ms Gosney and Ms Curtis were employed by Wellington Jewellers rather than Wellington Antiques. He also noted in his witness statement that he believed they would both have received payslip and been paid by PAYE but that would need to be checked with the accountant.

[47]In respect of Laney, the Second Respondent stated in his witness statement that he could not recall a time when she was paid late or had been underpaid. He said he thought she was paid by bank transfer but there may have been some isolated cash payments if there had been an unforeseen issue which had resulted in the late payment of salaries.

[48]On 21 June 2022, there was a discussion about a sales target between the Claimant and the Second Respondent. The Claimant said she was set the target of selling £12,000 worth of goods in two months, and it was agreed that if she achieved this, she would be paid £2,000 as commission. The Claimant said she was told this was a way to prove herself, and it was suggested by the Second Respondent that this would supplement her pay.

[49]On 11 July 2022, the Claimant sent a text message to Ms Gosney. She noted she had not been paid for June. Ms Gosney replied saying that the Claimant should call or text the Second Respondent and say she is broke. She noted she had done this and had been paid on 5th. The Claimant responded explaining she had called and texted and noted that the Second Respondent would get cross if she called too often. She noted that the Second Respondent had told Mike Wellington that the Claimant had been paid but when she checked she had not been.

[50]On 12 July 2022, the Claimant said she had a discussion with the Second Respondent about having achieved the sale figure he had set. The Claimant’s evidence was that she had by this time exceeded the target of £12,000 and achieved sales of closer to £14,000 but the Second Respondent refused to pay her the agreed commission payment.

[51]The Second Respondent set out in his witness statement that the Claimant asked for an unreasonably high amount of commission but that they agreed that if she met or exceeded an agreed sales target the issue would be revisited. He set out that the Claimant became upset and volunteered details about her home life. He said that Ms Feather comforted her and then left, at which point, the Claimant started shouting at him. He asked her to calm down and Ms Feather returned and suggested they should speak in the meeting room and not in public. In his oral evidence, the Second Respondent’s position was slightly different. He denied he had agreed to pay the Claimant a commission payment, but also denied that he had set her a sales target.

[52]The Claimant’s version of what occurred on 12 July 2022 was that when the Second Respondent refused to pay her the agreed commission, she remonstrated with him that it was to counter her low wages and the shortfall in her salary. She said that the Second Respondent accused her of overwriting Mike Wellington’s sales. The Claimant said this was wrong and that sometimes she would make a sale, but Mike Wellington would write it up. The Claimant said that Mike Wellington was present and told the Second Respondent to pay her the commission that had been agreed. The Claimant said the matter became very heated and the Second Respondent shouted at her that if she did not like the terms of pay, she could leave. The Claimant said she cried, and Ms Feather advised they speak in private. The Claimant said the Second Respondent ordered her to go with him to speak about the matter further, and she responded, “no I cannot go with you as you intimidate me.” The Claimant said the Second Respondent then shouted at her again saying if she did not want the job on his terms she could leave. The Claimant said she became very upset and left the shop.

[53]The Claimant’s evidence was that after she left the shop she went straight to the house of a friend, Mr Burr. Mr Burr attended the Tribunal hearing to give evidence in person. He said that the Claimant arrived at his house very distressed. He also confirmed that the Claimant said to him that the Second Respondent had agreed to pay her a bonus upon her sales, which she had achieved and surpassed, but this had not been paid and nor had her salary. When she had confronted him, the Second Respondent had shouted at her and told her to get out.

[54]The Tribunal accepted the Claimant’s version of what occurred on 12 July 2022. This was consistent with what was recorded in her diary and with the evidence given by Mr Burr, who confirmed that on the day in question, the Claimant had told him that the Second Respondent had shouted at her and told her to get out. The Tribunal accepted that the Second Respondent was angry with the Claimant for remonstrating with him over the refusal to pay her the commission payment that had been agreed, shouted at her that if she did not like the terms of pay, she could leave, and that in response the Claimant was very upset and crying.

[55]On 29 July 2022, the Claimant sent the Second Respondent a lengthy text message. In the text message she wrote, “I never would have achieved your sales target of £12,000 in two weeks without divine intervention…” She also noted, “I continue to do my very best for you and your company though you talk to me as of I was the dirt on your shoe”. In the next message, she noted, “I was seeking like minded people who might share my passions and we could together make a sustainable living… but maybe I am not masculine enough, not pliable enough, not white enough, not submissive enough…”

[56]On 11 August 2022, the Claimant sent a text message to Ms Gosney. In it she noted that despite what Ms Feather had said to Ms Gosney, the Claimant had last been paid on 12 July 2022 for June. She noted she had achieved the sales target that the Second Respondent had set her of more than £13,000. She noted she had not been paid for July. She had been told by the Second Respondent that she had been paid on 1 August 2022 but when she checked her account she had not been.

[57]On 5 September 2022, the Claimant sent a text message to Ms Gosney. She noted she felt under considerable stress as a result of the failure to pay her. In the message she noted she had achieved the sales target of £12,000 that the Second Respondent had set for her within two weeks, but no commission payment had been received.

[58]In respect of the issue of whether a sales commission was agreed, the Tribunal concluded that the Second Respondent did set the Claimant a sales target of £12,000 and did agree that he would pay her £2,000 if she reached that target. The Tribunal found that was agreed because the Claimant made numerous references in text messages that she sent near the time to the fact that the Second Respondent had set her a sales target of £12,000. The Tribunal also concluded that this was agreed because immediately after the disagreement on 12 July 2022, the Claimant went to Mr Burr’s house and relayed to him what had happened. He confirmed in his evidence that she had told him that the Second Respondent had agreed to pay her a bonus if she reached a sales target, but he had then refused to make payment.

[59]On 18 October 2022, the Claimant sent another text message to Ms Gosney in which she set out she had not been paid for August or September 2022. She said when she called Ms Feather, Ms Feather said she would speak to the Second Respondent and then said the Claimant had been paid. The Claimant asked Ms Gosney what she should do. Ms Gosney replied by text that the Claimant should refuse to attend work until she was paid and said the Claimant should start looking for another job.

[60]On 28 October 2022, the Claimant went to see her GP. Dr Chudasama wrote a letter on the Claimant’s behalf noting the Claimant had attended an appointment and that the Claimant reported stress at work and anxiety leading to palpitations. The letter noted the Claimant had told the GP that she had not been paid in 3 months.

[61]On 29 October 2022, the Claimant was told by Mike Wellington that he had done all he could to assist her getting paid and he advised her to speak to the Citizens Advice or to a solicitor.

[62]On 2 November 2022, the Claimant sent a text message to Mike Wellington in which she referred to the fact that he had advised her to get advice from the Citizens Advice or a solicitor.

[63]On the same day, the Claimant sent a text message to the Second Respondent. In her message she noted that she had called her doctor regarding the stress and anxiety she was experiencing because she was not being paid, was being paid less than the minimum wage, not having the proper PAYE, NI and pension sorted out. She noted she had been ignored, bullied and intimidated when she asked for these basic human and work rights. The Claimant set out in her witness statement that the text message clearly stated she was raising a grievance regarding her treatment in comparison to her colleagues.

[64]In her witness statement the Claimant noted that she was signed off work sick by her GP, but instead of offering the Claimant support, the rota was changed so that her hours were reduced to two days per week. The Claimant says this was done without any consultation. There was a document in the bundle setting out how many days the Claimant had worked each month. In October 2022, the Claimant had worked 18 days, in November 2022, she worked 14 days, and in December 2022, she worked 16 days.

[65]The rotas in the bundle indicate the Claimant worked 4 days in the first week of November 2022, two days in the second week of November 2022, two days in the third week of November 2022 and two days in the fourth week of November 2022. The rotas in the bundle also indicate the Claimant worked three days in the first week of December 2022, four days in the second week of December 2022, six days in the third week of December 2022, and two days in the fourth week of December 2022.

[66]On 6 December 2022, the Claimant’s solicitor sent a letter to the Second Respondent. The letter said the Claimant was owed wages, commission of £2000, and made allegations of race and sex discrimination. The letter also referred to various other amounts which were said to be outstanding.

[67]On 21 December 2022, the Claimant sent a text message to Ms Curtis. In the message the Claimant referred to being told by Laney about all the trouble she had getting paid for longer than the Claimant. She noted that the Second Respondent had ignored her and that when she asked Anya, Kim and Mike to intercede they had been told it was in her account. The Claimant had arranged for the bank to confirm it was not in her account. She noted Mike had advised her to see the Citizens Advice or a solicitor. She noted she had initiated proceedings, and then the Second Respondent sent her a message asking if she would like to talk. She noted she was still owed £4,000 in wages. Ms Curtis responded that she could not believe the Second Respondent was treating her like this.

[68]On 9 January 2023, a solicitors’ firm acting for the Respondents replied to the Claimant’s letter. The letter set out that the Second Respondent was grossly offended by the allegation of race discrimination. The letter also contained a response to the various points raised in the letter sent by the Claimant.

[69]On or around the same day, an email was sent by the Respondent’s solicitors to the Claimant’s solicitor which noted, “Further to my email below, I understand your client is otherwise scheduled to work at our client’s Windsor shop in the next week. In view of the on-going matters, do we presume a garden leave arrangement is in order?”

[70]On 13 January 2023, the Claimant’s solicitors responded by email noting, “My client is agreeable to going on paid gardening leave. Please can this be communicated to my client in a letter or email.”

[71]The Claimant set out in her witness statement that her solicitor proposed three months of garden leave at a rate of £1,120 per month but she was not paid her wages, her holiday pay or the amount she said she was owed in sick pay. The Claimant set out in her witness statement that she felt she was being constructively dismissed as the garden leave did not begin or end, and she was not reinstated to her role, nor were any steps taken to resolve the issues she had raised.

[72]On 23 February 2023, the Claimant sent the Respondent a grievance. The Respondents failed to deal with the grievance altogether. She says it was entirely reasonable for her to expect a response and for them to take action, but the grievance was ignored. In his witness statement, the Second Respondent noted that he could not recall if a grievance meeting was scheduled, but he found it extraordinary that the Claimant considered there was any scope of the continuation of her employment as it was clear the relationship had irretrievably broken down.

[73]When asked during his oral evidence, when the Second Respondent considered the Claimant’s employment had ended, he responded that he felt the Claimant could no longer work for him when he became aware he was being accused of things he had not done, and what had upset him the most was the allegation of discrimination, including the allegation he had been sexist, which he categorically denied.

[74]The Claimant told the Tribunal that when she was in contact with Acas she reached the conclusion her employment had ended. She considered she had been constructively dismissed because she had not been paid while on garden leave, she had not been paid the outstanding wages, and she had not received a response to her grievance. Although she was not able to recall the exact date on which she considered she was dismissed, at the time her solicitor sought her wages up to 7 March 2023. The Respondent has now paid the Claimant’s wages up to 7 March 2023. The Tribunal therefore concluded that by that date, 7 March 2023, both parties viewed the relationship as having come to an end. The Tribunal accepts that the Claimant resigned by conduct, and she did so in response to the Respondents’ various fundamental breaches of contract, namely the failure to pay her whilst on garden leave, the failure to pay her the outstanding wages she was owed, and the failure to acknowledge or respond to her grievance. The Issues to be decided

[75]As agreed with the parties, the Tribunal needed to decide the following issues: Breach of contract

[76]The Claimant claims it was agreed on 21 June 2022 that she would be paid a commission payment of £2,000 if she achieved sales of £12,000 and this was not paid.

[77]Did the Respondent act in breach of contract? Is the Claimant owed £2,000 for a commission payment?

[78]The Claimant claims she was told that she would be enrolled in a pension.

[79]Did the Respondent act in breach of contract? Is the Claimant owed employer pension contributions?

[80]The Claimant claims she was wrongfully dismissed. Is the Claimant owed one week of notice pay? Direct race discrimination

[81]The Claimant is of South Asian ethnic origin. She claims she was treated less favourably than comparators, Kim Gosney and Sharon Curtis, who are both White British.

[82]The Claimant complains about the following acts of less favourable treatment: Allegation 1 - From the start of the Claimant’s employment to the end, the First Respondent provided the comparators with their section 1 ERA statement of employment terms. In comparison, the Claimant was not provided with any statement of employment terms. Allegation 2 - From the start of the Claimant’s employment to the end, the First Respondent paid PAYE and NICs on the wages of the comparators to HMRC. In comparison, the First Respondent did not pay PAYE and NIC on the Claimant's wages. Allegation 3 - From the start of the Claimant’s employment to the end, the First Respondent enrolled the comparators in a pension scheme. In comparison, the First Respondent failed to enrol the Claimant. Allegation 4 - From November 2021 to December 2022, the First Respondent paid the comparators on PAYE and provided them with pay slips on a monthly basis. In comparison, the Claimant was never provided with itemised pay statements and was never included in PAYE. Allegation 5 – From November 2021 to December 2022, the First Respondent paid the comparators correctly each month in accordance with their working hours. In comparison, the First Respondent frequently failed to pay the correct wages to the Claimant. Examples: No wages in November and December 2021, no wages in January and February 2022, underpayments in March, April, May, June, July, October, December 2022 and no wages in September and November 2022. Allegation 6 – From November 2021 to March 2023, the First Respondent paid the comparators monthly. In comparison, the First Respondent failed to pay the Claimant her wages for her work in November 2021, December 2021 and January 2022, February 2022, September 2022, and November 2022. On 29 January 2024, some of the outstanding wages were paid. Wages for January, February and March 2023 were not paid. Allegation 7 – In October 2022, the First Respondent invited the comparators to a Zoom meeting at the end of October 2022, to discuss sales figures. The Claimant was excluded from that monthly meeting and from earlier monthly meetings, despite being a stronger performer than the comparators on achieving sales.

[83]The Claimant invites the Tribunal to draw an inference of race discrimination from the following: a) The First and/or Second Respondent paid Laney, a colleague who worked at the Wellington Jewelers shop in Marlow, whose race was not white British [Gypsy heritage] late, underpaid her, paid her without PAYE, paid her in cash and without an itemised pay slip. b) The Second Respondent made the following comment to the Claimant in or around late January/early February 2022 "blacks and gays have it worse" when the Claimant said she found it difficult to find work.

[84]Did the above occur?

[85]Did they amount to less favourable treatment?

[86]Was it because of race/ethnic origin? Direct sex discrimination

[87]The Claimant's male comparator is Keshab Asharpatti, a full-time employee, a jeweler of Nepali heritage.

[88]The Claimant complains about the following acts of less favourable treatment: Allegation 8 - Between 5 November 2021 to 31 December 2022, the comparator received a written contract of employment from the First Respondent. The Claimant was not provided with one. Allegation 9 - Between 5 November 2021 and 31 December 2022, the First Respondent ensured that the comparator was paid on PAYE payroll. The Claimant did not receive itemised PAYE statements. Allegation 10 - The comparator was paid promptly by the First Respondent. The Claimant was paid late and there were arrears between 5 November 2021 and December 2022. Allegation 11 - The First Respondent provided that the comparator was enrolled on the pension scheme and received holiday pay and sick pay. The Claimant was not provided with a workplace pension scheme or provided with holiday or sick pay entitlement. Allegation 12 - On or around 12 July 2022, the Claimant was shouted at in an aggressive manner by the Second Respondent. The Second Respondent always spoke to the comparator in a polite and professional manner.

[89]Did the above occur?

[90]Did they amount to less favourable treatment?

[91]Was it because of sex? Harassment related to sex or race

[92]The Claimant complains about the following acts of unwanted conduct: Unwanted conduct 1 - On or around late January/early February 2022 the Second Respondent, when responding to the Claimant's verbal request to pay her wages arrears, asked the Claimant inappropriate questions about her personal life and finances, including the Second Respondent asked questions to the effect of' “What is your story? What is your background? Why do you really want this job?” which was personal information. The Second Respondent asked ''Why do you need to work?'' which was about personal finances. Unwanted conduct 2 - On or around 12 July 2022, the Second Respondent in response to the Claimant's oral request for the payment of £2000, shouted loudly at the Claimant "if you don't like my terms, get out!" followed by "leave!" and a gesture at the Claimant that she should leave the Windsor shop immediately, and further told the Claimant that she was "lucky to have a job" and that she "should be grateful".

[93]Did these events occur?

[94]Did the events amount to unwanted conduct?

[95]Were they related to race?

[96]Were they related to sex?

[97]If so, did it have the purpose or effect of violating the Claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her? Victimisation

[98]The Claimant claims she carried out the following protected act: Protected Act 1 – On 29 July 2022, the Claimant sent the Second Respondent a text message at 10.39pm which stated “maybe I am not masculine enough.. not white enough... just not enough than any of my counterparts..” which, the Second Respondent knowing the background, was an allegation raising that the Claimant was treated less favourably than her comparators on the basis of sex and/or race (an allegation of a contravention of Equality Act). A further message was sent by the Claimant to the Second Respondent on 29 July 2022 at 10.39 which stated “if you truly worked with me as you have with Anja, Kim, Sharon..” which raised with the Second Respondent that he was treating the Claimant differently to the white workers referred to (an allegation of a contravention of Equality Act).

[99]The Claimant says she was subjected to the following detriments because of Protected Act 1– Detriment 1 – The Respondent delayed paying the Claimant her July and August 2022 salary. Detriment 2 - The Respondent failed to pay the Claimant her August 2022 salary. Detriment 3 - The Respondent continued to fail to pay the Claimant her earned sales commission of £2000. Detriment 4 - The Respondent ignored the Claimant's messages requesting payment of her salary and earned sales commission.

[100]The Claimant claims she carried out the following protected act: The Protected Act 2 – On 2 November 2022, the Claimant sent the Second Respondent a text message at 6.57pm which included the words “[I] am mentally worn out by your continuous ill treatment of me since I started work, which has resulted in my serious mental any physical health problems. I have been told to rest my mind completely from the undue, unreasonable and unacceptable workplace stress and anxiety" which was an allegation that discriminatory treatment was causing injury to mental and physical health to the Claimant (an allegation of a contravention of Equality Act).

[101]The Claimant says she was subjected to the following detriments because of Protected Act 2 – Detriment 5 – The Respondent reduced the Claimant's hours from 3 days per week to 2 days per week. Detriment 6 - The Respondent failed to pay the Claimant her November 2022 wages. Detriment 7 - The Respondent withheld these wages until ordered to pay the wages by the Tribunal on 29 January 2024.

[102]The Claimant claims she carried out the following protected act: Protected Act 3 – On 9 December 2022, a Letter Before Action was sent to the First Respondent by the Claimant's Solicitor on the Claimant's instructions which made detailed allegations of race and sex discrimination, including harassment and victimisation [the incident on 12 July 2022] (bringing proceedings under the Equality Act and/or an allegation of contravention of the Act).

[103]The Claimant says she was subjected to the following detriments because of Protected Act 3: Detriment 8 – The Respondent reduced the Claimant's working days in December 2022. Detriment 9 – The Respondent requested that the Claimant go on garden leave on 9 January 2023. Detriment 10 - The Respondent persisted in failing to pay accrued wages arrears of nearly £5000 despite these arrears being formally notified in writing. Detriment 11 - The Respondent resiled from an agreement to pay garden leave. Detriment 12 - The Respondent failed to pay the Claimant her January and February 2023 salary. Detriment 13 - The Respondent failed to reinstate the Claimant to the workplace when negotiations for an agreed terms exit stalled.

[104]The Claimant claims she carried out the following Protected Act: Protected Act 4: On 23 February 2023, a Grievance Letter was sent on behalf of the Claimant to the First Respondent which made detailed allegations of race and sex discrimination, victimisation and harassment [including the incident on 12 July 2022] (bringing proceedings under the Equality Act and/or an allegation of contravention of the Act).

[105]The Claimant says she was subjected to the following detriments because of Protected Act 4: Detriment 14 – The Respondent failed to schedule a meeting to address the Claimant's Grievance. Detriment 15 – The Respondent left it deliberately unclear as to whether the Claimant was still employed. Detriment 16 - The Respondent failed to reinstate the Claimant to the workplace. Detriment 17 - The Respondent failed to pay the Claimant any wages for March 2023 or pay her accrued wages arrears including arrears of earned sales commission.

[106]Did the above alleged protected acts amount to protected acts?

[107]Did the above alleged detriments occur?

[108]If so, was the Claimant subjected to the detriment because of the protected act in question? Automatically unfair dismissal on grounds of having asserted a statutory right

[109]The Claimant claims she asserted the following statutory rights, by alleging that the First and/or Second Respondent had infringed the following right or rights of hers which is a relevant statutory right: a) Sections 13-27 ERA 1996 - The right to be paid for her work and/ or the right not to be subjected to unlawful deductions from wages. b) National Minimum Wage Regulations 1998 (as updated 2021 and 2022) - The right to be paid at a rate in accordance with the Minimum Wage Regulations during each pay reference period of 1 month. c) Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Reg. 5-7). d) Section 8 ERA – Right to itemised pay e) Section 13-27 ERA – Right to sales commission which is defined as wages. f) Pensions Act – Right to enrolment in a pension

[110]Was the reason or principal reason for dismissal that the Claimant had asserted an infringement of a relevant statutory right? Part time worker detriments

[111]The Claimant claims she was treated less favourably than comparable full - time workers, Kim Gosney and Sharon Curtis.

[112]The Claimant complains about the following detriments: PTW Detriment 1 - Paid £10 less a day than full time staff Kim Gosney and Sharon Curtis, so she is claiming £180. PTW Detriment 2 - From the start of the Claimant’s employment to the end, the First Respondent provided the comparators their section 1 ERA statement of employment terms. In comparison, the Claimant was not provided with any statement of employment terms. PTW Detriment 3 - From the start of the Claimant’s employment to the end, the First Respondent paid PAYE and NICs on the wages of the comparators to HMRC. In comparison, the First Respondent did not pay PAYE and NIC on the Claimant's wages. PTW Detriment 4 - From the start of the Claimant’s employment to the end, the First Respondent enrolled the comparators on an occupational pension scheme. In comparison, the First Respondent failed to enrol the Claimant. PTW Detriment 5 – From November 2021 to December 2022, the First Respondent paid the comparators on PAYE and provided them with pay slips on a monthly basis from November 2021 until December 2022. In comparison, the Claimant was never provided with itemized pay statements and was never included in PAYE. PTW Detriment 6 – From November 2021 to December 2022, the First Respondent paid the comparators correctly each month in accordance with their working hours. In comparison, the First Respondent frequently failed to pay the correct wages to the Claimant. Examples are no wages in November and December 2021, no wages in January and February 2022, underpayments in March, April, May, June, July, October, December 2022 and no wages in September and November 2022. PTW Detriment 7 – From November 2021 to March 2023, the First Respondent paid the comparators monthly. In comparison, the First Respondent failed to pay the Claimant her wages for her work in November 2021, December 2021 and January 2022, February 2022, September 2022 and November 2022. Note that on 29/1/2024 some of the outstanding wages were paid. Wages for January, February and March 2023 were not paid. PTW Detriment 8 – In October 2022, the First Respondent invited the comparators to a Zoom meeting at the end of October 2022, to discuss sales figures. The Claimant was excluded from that monthly meeting and from earlier monthly meetings, despite being a stronger performer than the comparators on achieving sales.

[113]Did the above occur?

[114]Were they acts of less favourable treatment?

[115]Was the treatment on the ground that the Claimant was a part-time worker?

[116]Was the treatment justified on objective grounds? The relevant law Breach of contract

[117]The definition of a ‘contract of employment’ in section 230(2) of the Employment Rights Act 1996 (ERA) is ‘a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing’. As a result, the terms of an employment contract do not have to be in writing. Although there is a statutory requirement under section 1 ERA 1996 for employers to give workers written particulars of a number of their main terms of employment.

[118]Contracts of employment can be made up of express terms and implied terms. A source of express terms can be oral promises as well as written promises (Comberg v VivoPower International Services Ltd

[2020] EWHC 2438

, QBD). The process for establishing the existence of binding oral terms is usually made easier if there is evidence to back up the assertion that such terms have been concluded. In Whitney v Monster Worldwide Ltd

[2010] EWCA Civ 1312

, CA, the employee was able to show that the employer was contractually obliged to honour a promise made to him orally by producing near contemporaneous documentary evidence to that effect.

[119]A breach of a contract of employment occurs when a party fails to fulfil an obligation imposed by the terms of the contract. A breach of contract gives a claimant the right to bring a claim for financial compensation for losses flowing from the breach.

[120]Section 3 of the Employment Tribunals Act 1996 (ETA) and the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 set out the jurisdiction of employment tribunals to hear claims of breach of contract. A contractual claim can only be heard by a Tribunal under these provisions where the claim arises or is outstanding on the termination of the employee’s employment and relates to any of the following:(i) a claim for damages for breach of the contract of employment or other contract connected with employment;

(ii) a claim for a sum due under such a contract; or

(iii) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract.

[121]Section 86 of the Employment Rights Act 1996 sets out the minimum periods of notice that an employer is required to give to an employee: “(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more—(a) is not less than one week’s notice if his period of continuous employment is less than two years,

(b) is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and

[122]If an employer fails to give sufficient notice, then the employee is entitled to claim damages for breach of contract.

[123]Under Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order SI 1994 1994/1623, the time limit for bringing a claim for breach of contract in the Employment Tribunal is three months starting with the effective date of termination. Direct discrimination (section 13 of the Equality Act)

[124]Section 13(1) of the Equality Act 2010 provides that ‘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’.

[125]In order to succeed with a claim of direct discrimination under section 13, a claimant must have been treated less favourably than a comparator who was in the same, or not materially different, circumstances as the claimant. In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL, Lord Scott explained that 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”.

[126]In Shamoon v Chief Constable of the Royal Ulster Constabulary, the House of Lords took the view that, by tying themselves in knots attempting to identify an appropriate actual or hypothetical comparator, tribunals run the risk of failing to focus on the primary question, namely, why was the complainant treated as he or she was? If there were discriminatory grounds for that treatment, then there will usually be no difficulty in deciding whether the treatment was less favourable than was or would have been afforded to others. Lord Nicholls viewed the issue as essentially boiling down to a single question: did the complainant, because of a protected characteristic, receive less favourable treatment than others?

[127]Where a comparison with an actual comparator is possible, there is no obligation on the tribunal to construct a hypothetical comparator. In Williams v HM Prison Service EAT 1236/00 the EAT rejected the suggestion that a tribunal should construct a hypothetical comparator in circumstances where a comparison with an appropriate actual comparator had revealed no discrimination. The EAT could not see how, in such a case, any different result could be achieved by looking at a sensibly constructed hypothetical comparator. However, in the absence of an actual comparator, a real person who is in materially the same circumstances as the claimant but who has not suffered the same treatment, the question of less favourable treatment needs to be determined by reference to a hypothetical comparator who resembles the claimant in all material respects.

[128]In Gould v St John’s Downshire Hill

[2021] ICR 1

, EAT noted, “The question is then whether such a person would have been treated more favourably than the claimant in those circumstances. If the answer to this question is that the comparator would not have been treated more favourably, this also points to the conclusion that the reason for the treatment complained of was not the fact that the claimant had the protected characteristic.” Reason for treatment

[129]In Gould v St John’s Downshire Hill, Mr Justice Linden commented: “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… the influence of the protected characteristic may be conscious or subconscious.”

[130]The Equality and Human Rights Commission’s Employment Statutory Code of Practice (“the EHRC Employment Code”) notes that the motive or intention behind the treatment complained of is irrelevant (para 3.14). It is not a defence for an employer faced with a claim under section 13 to show that it had a good reason or a benign motive for discriminating (James v Eastleigh Borough Council

[1990] ICR 554

, HL). Proving discrimination

[131]Section 136 of the Equality Act 2010 provides, in essence, that where a claimant proves facts from which a tribunal could conclude in the absence of an adequate explanation that the respondent has unlawfully discriminated against the claimant (a ‘prima facie case’), the tribunal must uphold the complaint unless the respondent proves that it did not discriminate. If a claimant establishes a prima facie case of differential treatment from which a tribunal could properly draw an inference that the treatment was because of one of the protected characteristics or because of a protected act, then it will be for the employer to prove that there was some other ground for the treatment.

[132]In Martin v Devonshires Solicitors

[2011] ICR 352

, EAT, the EAT recognised that if a tribunal can make positive findings as to an employer’s motivation, it need not revert to the burden of proof rules at all. This point was later endorsed by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

, SC. However, in Gay v Sophos plc EAT 0452/10, the EAT noted that it is good practice for a tribunal to address the issue of the burden of proof.

[133]In Talbot v Costain Oil, Gas and Process Ltd and ors [2017] ICR D11, EAT, His Honour Judge Shanks summarised the following principles for tribunals to consider when deciding what inferences of discrimination may be drawn:  it is very unusual to find direct evidence of discrimination  normally a tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question  it is essential that the tribunal makes findings about any ‘primary facts’ that are in issue so that it can take them into account as part of the relevant circumstances  the tribunal’s assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference  assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also of reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities  where there are a number of allegations of discrimination involving one person, conclusions about that person are obviously going to be relevant in relation to all the allegations  the tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors that point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment  if it is necessary to resort to the burden of proof in this context, section 136 of the Equality Act provides, in effect, that where it would be proper to draw an inference of discrimination in the absence of ‘any other explanation’, the burden lies on the alleged discriminator to prove there was no discrimination. Harassment (Section 26 of the Equality Act)

[134]Section 26 of the Equality Act 2010 states: (1) A person (A) harasses another (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.

[135]There are three essential elements of ‘harassment’, a) unwanted conduct, b) that has the proscribed purpose or effect, and c) which relates to a relevant protected characteristic.

[136]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

, EAT Mr Justice Underhill expressed the view that it would be a ‘healthy discipline’ for a tribunal in any claim alleging unlawful harassment to address each of these three elements. Although in Ukeh v Ministry of Defence EAT 0225/14 it was noted that a tribunal that does not deal with each element separately will not make an error of law for that reason alone.

[137]In Reed and anor v Stedman

[1999] IRLR 299

, EAT and Insitu Cleaning Co Ltd v Heads

[1995] IRLR 4

, EAT, the EAT held that the word ‘unwanted’ is essentially the same as ‘unwelcome’ or ‘uninvited’. This is also set out in the EHRC Employment Code at paragraph 7.8.

[138]In Richmond Pharmacology v Dhaliwal Mr Justice Underhill said: “Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended”.

[139]The EHRC Employment Code states ‘a serious one-off incident can also amount to harassment’ (paragraph 7.8). The question whether an act is sufficiently ‘serious’ to support a harassment claim is essentially a question of fact and degree (Insitu Cleaning Co Ltd v Heads).

[140]In deciding whether the conduct has the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, each of the following must be taken into account: a) the perception of the person in question, b) the other circumstances of the case, and c) whether it is reasonable for the conduct to have that effect (section 26(4) of the Equality Act 2010). Victimisation (Section 27 of the Equality Act)

[141]Section 27(1) of the Equality Act provides: “A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.” As a result, a claimant seeking to establish victimisation must show two things: first, that he or she has been subjected to a detriment, and, secondly, that he or she was subjected to that detriment because of a protected act.

[142]Under section 27(2), each of the following is a protected act “(a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.”

[143]Whether a general complaint of discrimination amounts to a protected act under section 27(2)(d) will depend on the facts of the case (Durrani v London Borough of Ealing EAT 0454/12).

[144]In Shamoon v Chief Constable of the Royal Ulster Constabulary it was established that a detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his or her disadvantage. The House of Lords felt that an unjustified sense of grievance could not amount to a detriment but did emphasise that whether a claimant has been disadvantaged is to be viewed subjectively. This test was subsequently confirmed by the House of Lords in Derbyshire and ors v St Helens Metropolitan Borough Council and ors

[2007] UKHL 16

, but there, Lord Neuberger went on to stress that the test is not satisfied merely by the claimant showing that he or she has suffered mental distress: it would have to be objectively reasonable in all the circumstances.

[145]The EHRC Employment Code, drawing on the case law, states: “Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performancerelated awards… A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment” (paragraphs 9.8 and 9.9.)

[146]In Nagarajan v London Regional Transport

[1999] ICR 877

the House of Lords held that if a protected act has a ‘significant influence’ on the employer’s decision-making, discrimination will be made out. Nagarajan was considered by the Court of Appeal in Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

[2005] ICR 931

, CA, where it was stated that a significant influence is “an influence which is more than trivial.” Automatically unfair dismissal on grounds of having asserted a statutory right

[147]Under section 104 of ERA, an employee’s dismissal is automatically unfair if the reason or principal reason for the dismissal was that the employee alleged that the employer had infringed a relevant statutory right (section 104(1)(b)).

[148]Under section 104(2) ERA, it is immaterial whether the employee actually had the statutory right in question or whether the right had been infringed, but the employee’s claim to the right and its infringement must have been made in good faith. Furthermore, it is sufficient that the employee made it reasonably clear to the employer what the right claimed to have been infringed was and it is not necessary actually to specify the right (section 104(3)).

[149]By virtue of section 108(3)(g) ERA, the two-year qualifying period normally required to bring an unfair dismissal claim does not apply and so an employee may bring a claim of unfair dismissal for asserting a statutory right whatever his or her length of service.

[150]Section 104 does not apply to all statutory rights but only to the ‘relevant’ statutory rights referred to in section 104(4). These include ‘any right conferred by this Act (in other words, the Employment Rights Act 1996) for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal’ (section 104(4)(a)). The relevant statutory rights therefore include the right to receive a written statement of employment particulars or an itemised pay statement (sections 1 and 8 ERA) and the protection of wages rights (section 13, 15, 18 and 21 ERA).

[151]Under section 104 ERA, the assertion of the relevant statutory right must be the reason, or the principal reason, for the employee’s dismissal.

[152]For constructive dismissal claims the employee must demonstrate that he or she resigned in response to the employer’s repudiatory breach of contract, and that that breach was committed because the employee asserted a statutory right under section 104 ERA. The burden of proof is on the employee to establish the reason for dismissal, on the balance of probabilities.

[153]Section 104(1) ERA expressly states that it is sufficient that the principal reason for dismissal is the assertion of a relevant statutory right. Therefore even where the employer has mixed or multiple reasons for dismissal, the dismissal may be automatically unfair if the employee’s assertion of a statutory right is the main reason for the decision. Less favourable treatment on grounds of being a part-time worker

[154]The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000/1551 (“the Part Time Workers Regulations”) sets out the right for part-time workers not to be treated by their employer less favourably than the employer treats comparable full-time workers, either as regards the terms of their employment contract (Regulation 5(1)(a)), or by being subjected to any other detriment by any act, or deliberate failure to act, of the employer (Regulation 5(1)(b)) where the reason for the treatment is that the worker is a part-time worker, and the treatment is not justified on objective grounds (Regulation 5(2)).

[155]In Hendrickson Europe Ltd v Pipe EAT 0272/02 the EAT held that a tribunal considering whether a breach of Regulation 5 of the Part Time Workers Regulations has occurred must answer the following four key questions:  what is the treatment complained of?  is that treatment less favourable?  is that less favourable treatment on the ground that the worker is part time?  if so, is the less favourable treatment justified?

[156]Regulation 2(4) of the Part Time Workers Regulations sets out the criteria for establishing who is a comparable full-time worker in relation to a particular part-time worker. The effect of this provision is that a part-time worker can compare his or her position with that of a full-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place:  both workers are employed by the same employer under the same type of contract  both workers are engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualification, skills and experience, and  the full-time worker works or is based at the same establishment as the part-time worker.

[157]Under Regulation 2(4)(i) of the Part Time Workers Regulations, the part-time worker must be employed by the ‘same employer’ as his or her comparator. There is no provision for comparison with a worker employed by an associated employer.

[158]In Augustine v Data Cars Ltd

[2024] EAT 117

, the EAT followed McMenemy v Capita Business Services Ltd McMenemy v Capita Business Services Ltd

[2007] IRLR 400

, Ct Sess (Inner House), and held that, for there to be a breach of the Part-time Workers Regulations, a claimant’s part-time status must be the sole reason for the less favourable treatment. The Tribunal’s findings Breach of Contract claims

[159]As already set out above, the Tribunal concluded that the parties did agree in June 2022 that if the Claimant achieved a sales target of £12,000 that she would be paid a commission payment of £2,000. The Tribunal considered this was an oral term of the Claimant’s contract of employment, relating to a commission payment, which was agreed between the parties. As set out above, the Tribunal reached this decision based on the text messages which the Claimant sent at the time and Mr Burr’s evidence about what he was told by the Claimant at the time. The Claimant exceeded the sales target and was therefore entitled to be paid the amount that was agreed.

[160]The Claimant was informed on 13 July 2022 that the Second Respondent was not going to pay her the amount which had been agreed, and the Tribunal found that this amounted to a breach of contract.

[161]The amount the Claimant was owed was still outstanding at the time of her dismissal, and the Claimant made her complaint to the Tribunal within three months less one day from the date of her effective date of termination.

[162]The Tribunal therefore finds that the First Respondent owes the Claimant £2,000 for breach of contract. Pension contributions

[163]As set out above, the Tribunal found that when the Claimant was offered employment by the Second Respondent, she was informed it would be “done properly”, and that she would be paid by way of PAYE, would be entitled to holiday pay and would be enrolled in a pension. As set out above, in his witness statement, the Second Respondent confirmed that Ms Gosney and Ms Curtis were paid a pension. It is therefore likely that the Claimant was reassured that she too would be offered a pension when she was first being offered the role. The Tribunal concluded that the Claimant accepted the offer of employment on the understanding that she would be paid by way of PAYE, would be paid holiday pay, and would be enrolled in a pension.

[164]The Tribunal did not find that the Second Respondent’s explanation as to why the Claimant was not enrolled in a pension was credible. The fact that the Second Respondent viewed the Claimant as a probationer, and the fact she was part-time, do not explain why she was not enrolled in a pension. Employers are not relieved of their obligations, in terms of enrolling their staff in pensions, when employees are in a probationary period, and they are not lawfully permitted to only offer a pension to full time staff but not part time staff.

[165]The Claimant was not enrolled in a pension throughout her employment. This was a breach of the Claimant’s contract of employment. The Tribunal therefore finds that the Claimant is owed the pension contributions that would have been paid by her employer had a pension been set up when the Claimant’s employment started in October 2021. Notice pay/wrongful dismissal

[166]The Claimant also brings a claim for wrongful dismissal on the basis that she was dismissed but not given notice or paid for her notice period. Under section 86 of the Employment Rights Act 1996, the Claimant was entitled to one week of notice. The Claimant was dismissed by the Respondents. The First Respondent fundamentally breached the contract of employment which entitled the Claimant to treat herself as dismissed, and she resigned by conduct. She was not given notice. The Claimant is therefore entitled to one week of notice pay. Direct race discrimination

[167]The Claimant made 7 allegations of direct race discrimination.

[168]In respect of all 7 allegations the Claimant’s proposed comparators were Ms Gosney and Ms Curtis, both of whom were white. The Respondents’ position was that they were not suitable comparators because they are both employed on a full-time basis by the Second Respondent’s Jewellers business, whereas the Claimant worked part-time and worked for the First Respondent.

[169]The first allegation of direct race discrimination which the Claimant made was that “From the start of the Claimant’s employment to the end, the First Respondent provided the comparators with their section 1 ERA statement of employment terms. In comparison, the Claimant was not provided with any statement of employment terms.”

[170]The Tribunal did not conclude that Ms Gosney or Ms Curtis were given a statement of employment terms or a contract of employment. We did not hear any direct evidence on this point. We were not provided with any copies of documents which confirmed this, and this was not confirmed in the oral evidence presented to the Tribunal. The Tribunal did however hear evidence that Mr Asharpatti, who is Nepalese and who worked full time for the First Respondent, was given a contract of employment in 2019.

[171]The Tribunal also heard evidence that Ms Feather, who was employed in 2019, and who is White British, did not have a contract of employment until January 2024.

[172]There should be no material difference between the circumstances relating to the Claimant and a comparator. There are potentially two material differences between the Claimant and her named comparators. The first is that the named comparators were not employed by the First Respondent. The Second Respondent’s evidence was that they worked for a separate business, the jewellery business. Although we did find, as we have indicated previously, there was considerable overlap between the two businesses. The second potentially material difference is that the two comparators worked full time, and the Claimant worked part time.

[173]As a result, the Tribunal considered whether the Claimant had been subjected to less favourable treatment than a hypothetical white comparator in materially the same circumstances as the Claimant would have been. In reaching this decision, the Tribunal felt it was reasonable to take into account all the evidence that we had heard about how all of the members of staff who worked for the Second Respondent were treated.

[174]The Tribunal were not persuaded that the Claimant was treated differently from how a hypothetical white comparator would have been treated. As noted above, Ms Feather, who was the Second Respondent’s sister in law was not given a contract of employment, whereas a Nepalese employee, Mr Asharpatti, was given one. The Tribunal therefore did not consider that any difference in treatment was because of race.

[175]The Tribunal found that the Second Respondent had a different attitude towards the Claimant because he viewed her as a probationer and because she worked part-time. The Second Respondent repeatedly noted in the Grounds of Resistance and his witness statement that it was not appropriate to compare the Claimant’s situation to that of Ms Gosney, Ms Curtis, and Mr Asharpatti because they were full time staff. He also explained to the Tribunal that he was of the view that the issue of whether the Claimant would be given a contract of employment or enrolled in a pension was something that he would have considered after she had finished her probationary period. The Tribunal did not find this to be a satisfactory explanation for the way in which the Second Respondent treated the Claimant in terms of failing to offer her a contract, or failing to enrol her in a pension, but we did conclude it was a genuine one.

[176]The Tribunal also found that the Second Respondent did not have a good grasp on the legal requirements of being an employer. It was surprising that he frequently referred to not knowing if employees were paid by PAYE, or whether employees received pay slips. Although he said he deferred these matters to his accountant, it was surprising these were matters that he had not checked and did not have oversight of. The overall impression that was given of the business was that it was not well managed or run, as demonstrated by the failure to pay the Claimant her wages on time, on a set day of each month, the failure to provide payslips, and other very basic requirements of running a business that employs staff. However, the Tribunal heard evidence that these poor practices did not just affect the Claimant but effected other employees too. For example, Ms Gosney referred in a text message to having to message the Second Respondent saying she was broke and asking to be paid. Ms Feather said in her evidence she had sometimes been paid late.

[177]Overall, the Tribunal did not find that the Claimant was not given a contract of employment because of her race. Allegations 2, 3, and 4

[178]I have set out our conclusions in respect of Allegations 2, 3 and 4 together.

[179]The second allegation of direct race discrimination which the Claimant made was that “From the start of the Claimant’s employment to the end, the First Respondent paid PAYE and NICs on the wages of the comparators to HMRC. In comparison, the First Respondent did not pay PAYE and NIC on the Claimant's wages.”

[180]The third allegation of direct race discrimination which the Claimant made was that “From the start of the Claimant’s employment to the end, the First Respondent enrolled the comparators in a pension scheme. In comparison, the First Respondent failed to enrol the Claimant.”

[181]The fourth allegation of direct race discrimination was that “From November 2021 to December 2022, the First Respondent paid the comparators on PAYE and provided them with pay slips on a monthly basis. In comparison, the Claimant was never provided with itemised pay statements and was never included in PAYE.”

[182]When considering our decision, about whether the Claimant was treated less favourably than a hypothetical white comparator in materially the same circumstances would have been, the Tribunal took into account the evidence we had heard about whether the different members of staff had been paid by way of PAYE, had received pay slips and had been enrolled in a pension.

[183]The Tribunal were not provided with any documentary evidence which showed that Ms Gosney or Ms Curtis were paid by way of PAYE and received pay slips. The Claimant’s evidence in her witness statement was that they were paid this way. The Second Respondent’s evidence in his witness statement regarding PAYE was that he was not sure as his father had been the one who was responsible for liaising with easy pay, which was the company the Respondent used when it was paying its employees using the PAYE system. The Second Respondent also noted he would need to check with his accountant. In respect of the issue of whether they received pay slips his evidence in his witness statement was, “I believe that Mrs Curtis and Mrs Gosney would have received pay slips, however, this would need to be checked with the accountant.”

[184]Despite this comment, about needing to check with the accountant, appearing in the Second Respondent’s Grounds of Resistance and his witness statement, when the Second Respondent gave oral evidence, he still said that he did not know and would need to check with the accountant. It was difficult for the Tribunal to understand why he had not confirmed these matters with his accountant before attending the hearing to give evidence. On balance, the Tribunal concluded that it was more likely than not, that Ms Gosney and Ms Curtis were paid by way of PAYE and received pay slips. The Claimant gave evidence to this effect, and this was not denied by the Respondent. As noted above, it could easily have been checked.

[185]The Tribunal heard evidence from the Claimant that Mr Asharpatti was also paid by way of PAYE and also received slips. When the Second Respondent was asked if Mr Asharpatti was paid by PAYE, he responded, “I would guess so” and when asked if Mr Asharpatti received pay slips, he said he did. Ms Feather also confirmed she was paid by way of PAYE.

[186]The Second Respondent confirmed that Ms Gosney and Ms Curtis were paid a pension but noted they were full time whereas the Claimant was part-time and still a probationer. When asked if Mr Asharpatti was in a pension scheme, the Second Respondent’s oral evidence was that he would have to check.

[187]The evidence suggested the Claimant was treated differently from the way that other members of staff were treated in that the Claimant was not paid by way of PAYE, did not receive pay slips, and was not enrolled in a pension scheme. However, the Tribunal did not find that the reason for this less favourable treatment was because of the Claimant’s race.

[188]When considering the reason why the Claimant was treated this way, for the same reasons already explained regarding Allegation 1, the Tribunal concluded that the Claimant was treated less favourably by the Second Respondent because she was a part-time worker and because he viewed her as a probationer, but did not find that the failure to pay her through PAYE, provide her with payslips, or to enrol her in a pension was because of her race.

[189]Even though the Tribunal addressed the question of the “reason why” the Claimant was treated the way she was (and concluded the reason why was her part-time status and the fact she was viewed as a probationer), the Tribunal also went on to consider if the Claimant had been subjected to less favourable treatment compared to hypothetical white comparator in materially the same circumstances as the Claimant would have been. In reaching that decision we took into account all the evidence we had heard about how all of the members of staff who worked for the Second Respondent were treated. For the reasons already given, and in particular the fact that all of the full time staff, who were of different ethnicities, were treated in a similar manner, and the part-time staff were treated differently, we did not find that a hypothetical part-time white comparator would have been treated differently.

[190]The Tribunal did consider if we could draw inferences from firstly, the fact that Laney, who worked in the Second Respondent’s Jewellery business, also had difficulties getting paid and secondly, the comment made by the Second Respondent about how “blacks and gays have it worse”.

[191]We accepted the Claimant’s evidence that she had been told by Laney that she was often paid late and faced some of the same problems that the Claimant had with her pay. The Tribunal however did not feel able to draw any conclusions or inferences from this as we were told only that Laney would describe herself as being of Gypsy origin, but nothing more. Further we noted that Laney worked on a part-time basis, and so it was equally possible that the Second Respondent viewed her status in a similar manner to how he viewed the Claimant’s status. In other words, that he drew a distinction between the full time workers and the part time workers, but we simply did not hear enough evidence regarding Laney and how she was treated to be able to draw an inference of race discrimination.

[192]We also considered if we were able to draw an inference from the comment made by the Second Respondent about how “Blacks and gays have it worse”. This was said in response to the Claimant explaining how she found it hard to find work because of her age, gender and the fact she is of South Asian origin. The Claimant found the Second Respondent’s response to be dismissive of her and devalued her experience. The Tribunal found the phrase was ill judged but intended to express his view that the job market is more challenging for people who are black or homosexual and was not intended to be a negative comment about people who are black or homosexual. The Tribunal also did not find the comment was, or was intended to be, dismissive of the Claimant or her experience as someone of South Asian ethnicity. The Tribunal did not feel able to draw an inference from this comment such that we were able to conclude that the manner in which the Second Respondent treated the Claimant in terms of not paying her through PAYE, failing to provide a payslip, or enrolling her in a pension was influenced by the Claimant’s race. Allegations 5 and 6

[193]The fifth allegation of direct race discrimination which the Claimant made was that “From November 2021 to December 2022, the First Respondent paid the comparators correctly each month in accordance with their working hours. In comparison, the First Respondent frequently failed to pay the correct wages to the Claimant. Examples: No wages in November and December 2021, no wages in January and February 2022, underpayments in March, April, May, June, July, October, December 2022 and no wages in September and November 2022.”

[194]The sixth allegation was “From November 2021 to March 2023, the First Respondent paid the comparators monthly. In comparison, the First Respondent failed to pay the Claimant her wages for her work in November 2021, December 2021 and January 2022, February 2022, September 2022, and November 2022. On 29 January 2024, some of the outstanding wages were paid. Wages for January, February and March 2023 were not paid.”

[195]In reaching our decision in respect of these allegations, the Tribunal considered the evidence it had heard about how other members of staff had been treated in terms of the payment of wages.

[196]The Tribunal were not provided with evidence which showed that Ms Gosney and Ms Curtis were paid monthly, and correctly each month, and in accordance with their working hours. The Second Respondent did not respond to this point in his witness statement.

[197]As already noted, the Tribunal was provided with evidence which suggested that Ms Gosney was paid late on at least one occasion. On 11 July 2022, the Claimant sent a text message to Ms Gosney. She noted she had not been paid for June. Ms Gosney replied saying that the Claimant should call or text the Second Respondent and say she is broke. She noted she had done this and had been paid on 5th. Ms Feather’s evidence was that she was paid monthly, usually on the first of the month, but that there was sometimes a delay. When asked how many times there had been a delay in being paid, she said maybe 2 or 3 times.

[198]The Tribunal did however conclude, on a balance of probabilities, that Ms Gosney and Ms Curtis were generally paid the correct wages they were owed monthly, and were generally on time, even if there were occasions when payments were made late. Therefore, the Tribunal accepted the Claimant was treated differently from how some of the other staff appeared to have been treated.

[199]However, the Tribunal did not find that the Claimant’s race had a significant influence on the manner in which the Respondents had paid the Claimant. The Tribunal found that the reason why the Respondents failed to pay the Claimant properly and regularly and in accordance with the amount that she worked each month, was because the Second Respondent viewed her as a casual member of staff because she was a part-time worker, and he saw her as having a different status to those who worked full time because he viewed her as a probationer.

[200]As previously indicated, the Tribunal did not consider that the Second Respondent’s approach was acceptable. Every worker is entitled to be paid each month, the correct amount for the hours they have worked, and to receive itemised payslips. No worker or employee should ever have to repeatedly ask or chase their employer to be paid. But the Tribunal did not find the Second Respondent’s attitude to paying the Claimant was significantly influenced by her race. The Tribunal took into account the Claimant’s evidence that the only other person who had the same difficulties as her was Laney, but also took into account that the Claimant also alleged, in her claim of direct sex discrimination, that Mr Asharpatti was paid promptly, by way of PAYE and was given payslips. Again, this supports the Tribunal’s conclusion that it was those who were part-time and seen as more casual staff who were treated worse than those who worked full time. Therefore, the Tribunal did not conclude that a hypothetical part time white employee who worked for the First Respondent would have been treated differently from how the Claimant was treated.

[201]The seventh allegation of direct race discrimination was “In October 2022, the First Respondent invited the comparators to a Zoom meeting at the end of October 2022, to discuss sales figures. The Claimant was excluded from that monthly meeting and from earlier monthly meetings, despite being a stronger performer than the comparators on achieving sales.”

[202]The Second Respondent’s explanation for why the Claimant was not invited to the Zoom meeting in October 2022 was that the meeting did not relate to sales figures or antiques but related to the jewellery side of the business. In his witness statement he said that several members of staff who were not involved with the jewellery business were not invited. In his oral evidence, he noted not everyone was invited, and pointed out that Laney was invited.

[203]In her grievance, the Claimant complained to the Second Respondent that she was excluded from the meetings whereas her full time comparators were invited. The Tribunal agreed with what the Claimant wrote in her grievance. The Tribunal also found that the reason why the Claimant was not invited to the meetings was because as a part time worker, she was viewed differently. She was viewed as a casual worker who was still on probation. However, the Tribunal did not find that there was any evidence that the Claimant was excluded from the Zoom meetings because of her race. Direct sex discrimination

[204]In respect of the Claimant’s allegations of direct sex discrimination, the Claimant relies on Keshab Asharpatti, a full time male employee who worked for the First Respondent.

[205]The Claimant makes 5 allegations of direct sex discrimination.

[206]The first allegation is that “Between 5 November 2021 to 31 December 2022, the comparator received a written contract of employment from the First Respondent. The Claimant was not provided with one.”

[207]The Tribunal found that Mr Asharpatti was given a contract of employment in 2019. This was confirmed by the Second Respondent. The Claimant was not given a contract of employment at any time. Therefore, the Tribunal concluded that the Claimant was subjected to less favourable treatment. However, the Tribunal considered that Mr Asharpatti was not a suitable comparator, because he worked full time, and so considered the position of a hypothetical part-time male employee working for the First Respondent.

[208]When considering the “reason why” the Claimant was not given a contract, as already indicated above, the Tribunal found that the Second Respondent believed he did not need to provide the Claimant with a contract of employment or take other steps such as enrolling her in a pension, because she was a part-time member of staff and, in his eyes, she was still a probationer. The Tribunal found that this, and his generally poor grasp of what was legally required of him when employing staff, was the reason why he failed to give the Claimant of contract. The Tribunal found that this was the reason why he treated her less favourably, and not because of her sex.

[209]For the same reasons, the Tribunal did not find that the Second Respondent would have acted differently towards a hypothetical part-time male employee. Allegations 2, 3 and 4

[210]I will take allegations 2, 3 and 4 together.

[211]The second allegation of direct sex discrimination made by the Claimant is that “Between 5 November 2021 and 31 December 2022, the First Respondent ensured that the comparator was paid on PAYE payroll. The Claimant did not receive itemised PAYE statements.”

[212]The third allegation of direct sex discrimination is that “The comparator was paid promptly by the First Respondent. The Claimant was paid late and there were arrears between 5 November 2021 and December 2022.”

[213]The fourth allegation of direct sex discrimination is that “The First Respondent provided that the comparator was enrolled on the pension scheme and received holiday pay and sick pay. The Claimant was not provided with a workplace pension scheme, or provided with holiday or sick pay entitlement.”

[214]The Tribunal has already concluded in respect of the Claimant’s allegations of direct race discrimination that Ms Gosney and Ms Curtis were paid by PAYE, and were paid reasonably promptly by the Respondent, and were enrolled in a pension scheme. We also heard evidence from Ms Feather that while she was initially not given a contract of employment, she was paid by PAYE and was generally paid promptly. Therefore, the evidence did not suggest to us that the Claimant’s sex was the reason why she was treated differently from Mr Asharpatti, and we did not conclude that a hypothetical part-time male employee would have been treated differently. Instead, it appeared that Mr Asharpatti, Ms Gosney and Ms Curtis, who were all full time employees, were all treated in a broadly similar manner when it came to pay, payslips, and pensions.

[215]The Tribunal found that this was further support for the finding that the reason why the Claimant was treated differently was because she was viewed as a more casual member of staff because she worked part-time and because the Second Respondent viewed her as being a probationer, which meant he mistakenly believed she did not have all the same legal entitlements as a fulltime employee.

[216]The Tribunal did consider if we could draw an inference of sex discrimination from the questions that the Second Respondent asked the Claimant regarding why she wanted to work, about her finances, and about her husband. It was suggested this was indicative of a misogynistic attitude and that the Tribunal should conclude from this that the Second Respondent would have been unlikely to have treated a hypothetical part time male in the same way and was more likely to exploit the Claimant who he perceived to be financially vulnerable. We were also invited to draw an inference from the manner in which Laney was treated, as she was also female. The Tribunal did not consider that it was able to draw an inference of sex discrimination from either the Second Respondent’s comments or the way Laney was treated because there were also a number of female full time staff who were paid reasonably promptly, paid by way of PAYE, and enrolled in a pension scheme.

[217]For these reasons, the Tribunal did not find that the Claimant was subjected to direct sex discrimination in respect of allegations 2, 3 or 4.

[218]The fifth allegation of direct sex discrimination was “On or around 12 July 2022, the Claimant was shouted at in an aggressive manner by the Second Respondent. The Second Respondent always spoke to the comparator in a polite and professional manner.”

[219]The Tribunal found that the events of 12 July 2022 occurred as the Claimant recounted them in her witness statement and in her oral evidence. As already indicated the Tribunal found that the Second Respondent shouted at the Claimant that if she did not like the terms of pay, she could leave.

[220]The Tribunal again concluded that Mr Asharpatti was not a suitable comparator for this allegation. He was not in materially the same circumstances as the Claimant. The Claimant had been put in the position of repeatedly having to ask the Second Respondent to be paid the wages she was owed. It was also her evidence that she remonstrated the Second Respondent when he refused to pay her the commission that they had agreed. This was not applicable to Mr Asharpatti who was not in a disagreement with the Second Respondent about a commission payment owed for sales achieved.

[221]The Tribunal considered if a hypothetical part-time male comparator, in materially the same circumstances as the Claimant, would have been treated the same way by the Second Respondent.

[222]The Tribunal considered whether, if a part time male employee had been asking the Second Respondent to be paid for a lengthy period of time, and was then in a disagreement with the Second Respondent about whether he was going to pay a commission payment, the Second Respondent would have shouted at him. In reaching our decision we took into account the Claimant’s evidence that the Second Respondent also shouted at Mike Wellington during the same heated argument with the Claimant. The Claimant recorded in her diary, “Mike tries to intercede, saying “let’s talk this through”. Jack shouted at him and tells him that “he knows what will happen if he does that”. Mike continues to work on a watch with his face next to it. Mike is frightened. He cowers. I say to Jack that I achieved the target, earlier than the period, and exceeded it.”

[223]The Tribunal concluded from this evidence that the Second Respondent behaved in an aggressive manner on 12 July 2022 to his father, Mike Wellington, as well as the Claimant. This suggested that the Second Respondent had lost his temper, and that was why he shouted. The Tribunal concluded that it was likely that he would have shouted at a hypothetical male comparator in the same circumstances. Harassment related to race and/or sex

[224]The Claimant complained about two acts of unwanted conduct which she said related to her sex and/or her race.

[225]The first allegation was that “On or around late January/early February 2022 Mr Wellington (the Second Respondent), when responding to the Claimant's verbal request to pay her wages arrears, asked the Claimant inappropriate questions about her personal life and finances, including the Second Respondent asked questions to the effect of' 'What is your story? What is your background? Why do you really want this job?" which was personal information. The Second Respondent asked ''Why do you need to work?'' which was about personal finances.”

[226]As already indicated, the Tribunal found the Second Respondent did ask the Claimant why she wanted to work, why she needed to earn money, and asked about her husband, although the Tribunal concluded that this occurred in November 2021. The Tribunal concluded that this did amount to “unwanted conduct” in that the Claimant found the questions to be intrusive and inappropriate.

[227]The Tribunal found it was unlikely that the Second Respondent would have asked a male who was seeking a role why they needed to work, why they needed to earn money, or asked them questions about their wife. The questions were inappropriate because they are based on an outdated idea that men are the main breadwinners in a house. The Tribunal found that these questions were related to sex in that they were motivated by the Claimant’s sex, and the Second Respondent would not even have thought to ask these questions of a male who wanted to work in the Antiques store.

[228]The Tribunal did not find that these questions were in anyway related to the Claimant’s race and at no point was it suggested to us how that case was being put.

[229]The Tribunal accepted that these questions created a degrading environment for the Claimant, and violated her dignity, in that she felt she had to justify her need and desire to work and felt she had to explain her financial situation when that was a personal matter. The Tribunal found it was reasonable for the Claimant to have felt this way, given the inherently sexist nature of the questions.

[230]The Tribunal therefore upheld the Claimant’s claim she had been subjected to harassment related to sex in respect of the first allegation.

[231]The second allegation of harassment was that “On or around 12 July 2022 Mr Wellington, in response to the Claimant's oral request for the payment of £2000, shouted loudly at the Claimant "if you don't like my terms, get out!" followed by "leave!" and a gesture at the Claimant that she should leave the Windsor shop (her place of work) immediately, and further told the Claimant that she was "lucky to have a job" and that she "should be grateful".”

[232]As already indicated, the Tribunal accepted the Claimant’s evidence that she was shouted at by the Second Respondent on 12 July 2022. However, as previously explained regarding the complaint of direct sex discrimination, the Tribunal did not find that this amounted to less favourable treatment because of sex. The Tribunal found the Second Respondent lost his temper, and shouted at his father as well as the Claimant, and as a result, would have treated a hypothetical male comparator in the same way. For the same reason, the Tribunal did not find that the unwanted conduct was motivated by the Claimant’s sex, and we did not find any other basis on which it was “related to” sex.

[233]The Tribunal also did not find it was unwanted conduct related to race. The conduct is not obviously connected to the Claimant’s race, and the Tribunal did not consider it was motivated by the Claimant’s race. The Tribunal found the Second Respondent shouted at the Claimant because he was angry with her for remonstrating with him about his failure to pay the agreed commission. Therefore, the Tribunal did not uphold this allegation of harassment. Extension of time

[234]The Claimant’s first allegation of harassment related to sex occurred in November 2021. Her claim form was presented on 14 April 2023. The Claimant contacted Acas for early conciliation purposes regarding the Second Respondent on 24 February 2023. Therefore, the primary limitation period in respect of the Second Respondent is 23 November 2022. She contacted Acas for early conciliation purposes regarding the First Respondent on 30 March 2023. Therefore, the primary limitation period in respect of the First Respondent is 31 December 2022. As a result, this claim is approximately a year out of time in respect of the Second Respondent and is approximately a year and a month out of time in respect of the First Respondent.

[235]Therefore, the Tribunal had to consider if it was just and equitable to extend time. The Tribunal accepted the Claimant was in a vulnerable position in November 2021. She had only just started working for the First Respondent. She wanted to work in Antiques, as this was her area of expertise, and considered she had limited options. She also felt insecure and hindered in her ability to find work because of her age and race. This meant she was particularly keen to remain in the role with the First Respondent. This also explains why she stayed working for the First Respondent even when she was not paid for many months. The Tribunal accepts that it was not realistic for the Claimant to have raised a complaint of harassment related to sex either as a grievance or to an Employment Tribunal without risking her employment. This was born out by the events that followed, whereby when she did accuse the Second Respondent of discrimination, he was of the view that this meant she could no longer continue working for him, and the employment relationship ended.

[236]The Tribunal also took into account the on-going vulnerability and precariousness of the Claimant’s position when considering if it was reasonable for her to not have brought her claim earlier. The Claimant was not being paid, was frequently being paid late, and was paid incorrect amounts. Despite this she continued working for the First Respondent because she did not want to lose her role. The Tribunal also considered whether the Respondents were prejudiced by the delay in the Claimant bringing this claim and concluded it was not. The Second Respondent was able to put forward his version of what he said happened on 12 July 2022, and he was also able to call his witness who gave evidence on the issue as well. Therefore, the Tribunal did not consider that the Respondents faced any real practical prejudice by the fact that the claim was out of time. For these reasons, the Tribunal concluded it would be just and equitable to extend time.

[237]Therefore, the Claimant’s first allegation of harassment related to sex succeeds and is upheld. Victimisation

[238]In respect of her claim for victimisation, the Claimant claimed she made four protected acts. As set out above, under section 27(2) of the Equality Act 2010, a protected act includes bringing proceedings under the Equality Act, giving evidence or information in connection with proceedings under the Equality Act, doing any other thing for the purposes of or in connection with the Equality Act, and making an allegation (whether or not express) that someone has contravened the Act. The first protected act and detriments

[239]The first protected act which the Claimant relies upon is the text message that she sent to the Second Respondent on 29 July 2022 in which she complained about the way she was being treated and wrote, “maybe I am not masculine enough, not pliable enough, not white enough, not submissive enough…”.

[240]The Tribunal found that it was clear that the Claimant was suggesting to the Second Respondent that his treatment of her was influenced by her sex and her race, and therefore found this was an allegation that someone was contravening the Equality Act and was a protected act.

[241]The Claimant alleged that because she sent this text message, she was subjected to three detriments as victimisation. The three alleged detriments were that the Second Respondent delayed paying her for July and August 2022, failed to pay her August 2022 wages, and continued to refuse the Claimant her earned sales commission.

[242]The Tribunal accepted that factually all of these events occurred, but did not find that they occurred because of the protected act. The failure to pay the Claimant in a timely manner had been an on-going issue from when she started. Indeed, she was not paid at all from when she started at the end of October 2021 until the start of March 2022. The Tribunal also took into account that the Claimant did receive further wages payments in October 2022 and December 2022, so it was not as though the Claimant’s payments ceased altogether after she sent this text. The Tribunal found that detriments one and two were simply a continuation of the poor and disorganised way the Respondents paid her.

[243]The Tribunal also found that the Second Respondent had conveyed to the Claimant on 12 July 2022 that he would not be paying her the £2,000 that had been agreed as a commission payment. This decision was already made before she sent the text message, and so we concluded this was not a detriment that the Claimant was subjected to because of the protected act. The second protected act and detriments

[244]The second protected act which the Claimant relies upon was a text message sent by the Claimant to the Second Respondent on 2 November which included the words “I am mentally worn out by your continuous ill treatment of me since I started work, which has resulted in my serious mental any physical health problems. I have been told to rest my mind completely from the undue, unreasonable and unacceptable workplace stress and anxiety”. The Tribunal concluded that while this was an allegation of poor treatment against the Second Respondent as there was no mention of any protected characteristic, such as sex or race, this was not an allegation that the Second Respondent was contravening the Equality Act. Therefore, the Tribunal did not find that this was a protected act.

[245]It was the Claimant’s case that she was subjected to three detriments because she sent this text message on 2 November 2022. The Tribunal went on to consider this, in case we were incorrect in our conclusion that the text message of 2 November 2022 did not amount to a protected act.

[246]The three alleged detriments were that the Respondents reduced the Claimant's hours from 3 days per week to 2 days per week, failed to pay the Claimant her November 2022 wages, and withheld these wages until ordered to pay them by the Tribunal on 29 January 2024.

[247]The Tribunal did not conclude that the Claimant was subjected to any of these detriments because she sent the text message on 2 November 2022.

[248]Although the Claimant’s hours were reduced such that she was only rostered to work for two days per week for three weeks in November 2022, her days then increased again in December 2022. The Tribunal therefore did not consider that the Claimant was subjected to a detriment in that her days were reduced from 3 days to 2 days from that point onwards. In any event, the Tribunal were not presented with any evidence which suggested the reason why the Claimant’s days were reduced from 3 days to 2 days for three weeks in November 2022 was because of the text message she sent on 2 November 2022.

[249]In terms of the allegation that the First Respondent failed to pay the Claimant her November 2022 wages, as previously indicated, the Tribunal found that the failure to pay the Claimant in a timely manner had been an on-going issue from when she started. This was sporadic throughout the year, and it did not get notably worse after this text message was sent. The Tribunal also took into account that the Claimant did receive a further payment of wages in December 2022. The Claimant’s payments did not cease altogether after she sent this text.

[250]In terms of the third alleged detriment, the Tribunal did not find that the First Respondent withheld the payment of her wages until 29 January 2024 because the Claimant sent the text message on 2 November 2022. The Tribunal was of the view that the reason why the payment was withheld related to the breakdown in the relationship which followed after the Claimant’s solicitor sent a letter on 9 December 2022. This is explained further below in respect of other similar alleged detriments. The third protected act and detriments

[251]The Claimant’s third alleged protected act was the letter sent by her solicitor on 6 December 2022. The Tribunal concluded that the letter sent by the Claimant’s solicitor was a protected act as it alleged that the Claimant had been subjected to race discrimination, sex discrimination, harassment and victimisation.

[252]The Claimant alleges that as a result of this protected act, the Claimant was subjected to 6 detriments.

[253]The first alleged detriment is that the Claimant's working days were reduced in December 2022. The Tribunal did not find as a matter of fact that this occurred. While the Claimant’s working days were reduced to two days per week in the second, third and fourth week of November, the rotas in the bundle indicated the Claimant worked three days in the first week of December 2022, four days in the second week, six days in the third week, and two days in the fourth week of December 2022.

[254]The second and sixth alleged detriments which the Claimant says occurred because this letter was sent on her behalf were that the Respondents “requested that the Claimant go on garden leave on 9 January 2023” and that the Respondents “failed to reinstate the Claimant to the workplace when negotiations for an agreed terms exit stalled.” The Tribunal concluded that the Claimant was subjected to these detriments because of her protected act.

[255]The Second Respondent’s oral evidence to the Tribunal was he felt the Claimant could no longer work for him when he became aware he was being accused of things which he believed he had not done, and what had upset him the most was the allegation of discrimination, including the allegation he had been sexist. The Tribunal found that in effect after the Claimant accused the Second Respondent of discrimination, he considered it was not possible for her to continue to be employed. This was supported by the fact that he wrote in his witness statement, that he could not recall if a grievance meeting was scheduled after the Claimant had submitted a grievance, but he found it “extraordinary” that the Claimant considered there was any scope of the continuation of her employment as it was clear the relationship had irretrievably broken down. It was clear from his oral evidence that he viewed it as being irretrievably broken down because she had accused him of discriminating against her.

[256]As a result, in early January 2022, it was suggested by the Respondent’s solicitor that the Claimant be put on garden leave, and when the solicitors were unable to reach an agreement in that period, the Claimant was not reinstated to her role because she had made an allegation of discrimination. These aspects of the Claimant’s claim of victimisation are therefore successful. In other words, the Tribunal concluded that the Claimant’s employment was terminated because she made an allegation of discrimination against the Second Respondent.

[257]The other alleged detriments (the third, fourth, and fifth) which the Claimant said occurred as a result of the fact that her solicitor sent the letter on 6 December 2022, were that the First Respondent persisted in failing to pay accrued wages arrears of nearly £5,000 despite these arrears being formally notified in writing, resiled from an agreement to pay garden leave, and failed to pay the Claimant her January and February 2023 salary. The last two of these allegations are effectively the same as the Claimant was on garden leave in January and February 2023.

[258]The Tribunal did not find that the Respondents failed to pay the unpaid wages that were owed to the Claimant up to that point, or pay her for January and February 2023, because she made an allegation of discrimination in her letter of 6 December 2022. The Tribunal considered that the reason these payments were not made at that time is because the parties’ solicitors were unable to reach a solution, and the Claimant started litigation in the Employment Tribunal. The Tribunal did not find that the reason for the refusal to make those payments was because of the allegations of discrimination set out in the letter of 6 December 2022, but because as a part of that letter the Claimant was raising a range of matters and seeking payments for other claims over and above her unpaid wages, which the Respondents contested. The fourth protected act and detriments

[259]The fourth protected act which the Claimant relies upon is the grievance that she raised on 23 February 2023. The Tribunal concluded that this was a protected act as it alleged that the Claimant had been subjected to race and sex discrimination.

[260]The Claimant alleges that she was subjected to 4 detriments because she carried out this protected act.

[261]The first alleged detriment was that the Respondents did not schedule a meeting to address the Claimant’s grievance. The Tribunal did not find that the Respondents failed to schedule a grievance meeting because the Claimant raised a grievance. The Tribunal found the reason why the Second Respondent failed to arrange a grievance meeting in response to the Claimant’s grievance is because he viewed the employment relationship as being over, because the Claimant had accused him of discrimination in the letter of 6 December 2022. The Second Respondent did not arrange a grievance meeting because in his mind there was no chance of the Claimant returning to work.

[262]The second alleged detriment which the Claimant says she was subjected to because she raised a grievance was that it was left deliberately unclear as to whether the Claimant was still employed. The Tribunal did not find that this occurred because the Claimant raised a grievance on 23 February 2023. The Claimant had been on garden leave from the start of January 2023. The parties were corresponding via solicitors to see if the Claimant’s claims could be resolved. This was the cause of the ongoing uncertainty. However, it was clear that in the Second Respondent’s mind the cause of the irretrievable breakdown in the relationship was the allegations made in the letter of 6 December 2022.

[263]The third alleged detriment was the failure to reinstate the Claimant to the workplace. The Tribunal has already found that the Claimant was subjected to this detriment as a result of her third protected act.

[264]The fourth alleged detriment was the failure to pay the Claimant any wages for March 2023 or pay her the accrued wages and the outstanding sales commission. The Tribunal did not find that the reason why these payments were not made was because of the grievance submitted by the Claimant on 23 February 2023. This is for essentially the same reasons given in respect of her previous detriment of this nature. The Tribunal considered that the reason these payments were not made at that time is because the parties’ solicitors were trying to reach a solution, and when that failed the Claimant started litigation. From 6 December 2022 onwards, it was clear the Claimant was raising a range of matters and seeking payments for other claims over and above her unpaid wages, which the Respondents contested. Constructive automatically unfair dismissal for assertion of a statutory right

[265]The Tribunal found that the Claimant set out in the letter of 6 December 2022 that the First Respondent had infringed her statutory rights, and she named some of the statutory rights which are protected under section 104 of the Employment Rights Act, including her right to be paid the wages she was owed. The Tribunal concluded that she made this assertion in good faith, as her wages were outstanding and had been for a long time.

[266]However, the Tribunal did not find that this assertion was the reason or principal reason for the Claimant’s dismissal. As already explained, the Tribunal found the reason, or the principal reason, for the Claimant’s dismissal was the fact that she accused the Second Respondent of subjecting her to discrimination. This was in effect confirmed by the Second Respondent in his oral evidence, as set out above. Therefore, the Claimant’s claim of constructive automatically unfair dismissal for assertion of a statutory right was not successful and is not upheld. Less favourable treatment under the Part Time Workers Regulations

[267]The Claimant alleged that she was subjected to 8 detriments because she was a part time worker.

[268]The Claimant identified in her Claim Form that she was relying on full time comparators, Ms Gosney and Ms Curtis. The Respondents’ position was that Ms Gosney and Ms Curtis worked for the jewellery business. Although it was accepted that Ms Gosney worked in the Antiques store and the Jewellery business, the Respondents maintained that in terms of who they were employed by, it was the jewellery business.

[269]As set out above, Regulation 5(1) gives part-time workers a right not to be treated less favourably than a comparable full-time worker as regards contractual terms or by being subjected to ‘any other detriment’. The right under Regulation 5 is the right to be treated no less favourably than a ‘comparable full-time worker’. Regulation 2(4) sets out the criteria for establishing who is a comparable full-time worker in relation to a particular part-time worker. A part-time worker can compare his or her position with that of a full-time worker if both workers are employed by the same employer under the same type of contract.

[270]The Tribunal reached the conclusion that Ms Gosney and Ms Curtis were not employed by the same employer as the Claimant. The evidence we heard suggested they worked either exclusively (Ms Curtis), or predominately (Ms Gosney), in the Jewellery stores. The Tribunal therefore concluded it was more likely than not that they were employed by the Second Respondent’s jewellery business. As the Claimant was employed by the First Respondent and Ms Gosney and Ms Curtis were employed by the Second Respondent’s jewellery business, they were not suitable comparators. The Regulations are clear and restrictive, the full time comparators must be employed by the same employer. We were of the view that it was not open to the Tribunal to find that as there was considerable overlap in how the businesses were run, that they were effectively employed by the same employer.

[271]As will have been apparent from the conclusions that the Tribunal reached regarding the Claimant’s claims of discrimination, we did find that in numerous ways the Claimant was treated less favourably than those who worked full time for the First Respondent and in the Second Respondent’s other business because she was a part-time worker. Therefore, we would have upheld a considerable number of the Claimant’s detriments if Ms Gosney and Ms Curtis had been employed by the First Respondent.

[272]We considered if it was possible to consider the Claimant’s position in comparison to the full time employee who did work for the First Respondent, Mr Asharpatti, but as this was not how the Claimant put her case during the hearing, we did not consider it was permissible for the Tribunal to change the name of the comparator(s) during the deliberations, as that would have clearly offended the principle of natural justice and would have significantly prejudiced the Respondents who considered the case against them was that she was treated differently to full time comparators, Ms Gosney and Ms Curtis.

[273]For this reason, the Claimant’s claim she was subjected to less favourable treatment on grounds of being a part time worker was not successful and is not upheld. Adding the Second Respondent as an employer

[274]Finally, we address the submissions that were made by the Claimant regarding adding the Second Respondent as the Claimant’s second employer. This application was made on the basis that the Claimant was concerned that the Second Respondent would close down the First Respondent business to avoid having to make any payment awarded by the Tribunal. The Second Respondent denied that this was necessary and said that he had no intention of closing the First Respondent business which had had a successful year.

[275]The Tribunal concluded it was not permissible to find the Second Respondent was the Claimant’s employer to try to make him personally liable. If there had been a contract of employment it would have been between the First Respondent and the Claimant, and the Tribunal would only have been able to find the Second Respondent was the Claimant’s employer if she had in fact been employed by him personally. However, she was not. She was employed to work in the Antiques business, and therefore the application is refused.

[276]The Claimant has succeeded with her claims of breach of contract and these claims are upheld in respect of the First Respondent. She has succeeded with some parts of her claims for victimisation and harassment related to sex, and these claims are upheld against the First and Second Respondent. Approved by: CORRECTED REASONS An oral judgment and reasons, regarding remedy, having been given to the parties at the hearing on 24 February 2025, and written reasons having been requested at the hearing in accordance with Rule 60 of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided: Introduction

[1]The parties attended a final hearing in this case between 2-5 September 2024 at Reading Employment Tribunal. An oral judgment, which addressed the issue of liability, was given on 31 January 2025. The reasons for the delay in giving judgment have already been explained to the parties.

[2]Prior to 31 January 2025, the parties were notified that the hearing was listed on that day to allow the Tribunal to give an oral judgment on liability and then proceed to deal with remedy. However, on 31 January 2025, after the oral judgment on liability, the Respondents requested an adjournment of the remedy hearing on the basis that the Second Respondent had flu, and because they wanted time to consider the decision on liability before making submissions on remedy. The Tribunal agreed to the request mainly because the Tribunal members were able to offer an alternative date for the remedy hearing that was only a few weeks away. A remedy hearing was therefore listed on 24 February 2025 to be heard by video. At the hearing on 31 January 2025, the Respondents requested written reasons for the oral judgment on liability. Those written reasons have now been sent to the parties.

[3]At the remedy hearing on 24 February 2025, the Tribunal was provided with a bundle of documents, two witness statements from the Claimant, a Schedule of Loss and a Counter Schedule of Loss from the Respondents. At the remedy hearing, the Tribunal heard evidence from the Claimant, and submissions from both parties. The Tribunal gave an oral judgment, and the Respondent requested written reasons. Findings of fact

[4]In the liability judgment the Tribunal found that the Claimant’s employment with the Respondent ended on 7 March 2023.

[5]On 11 March 2023, the Claimant was admitted to hospital having made a laceration to her left wrist when in a moment of considerable distress. In her medical notes, it was noted that her son advised the doctor that he knew the issues with her previous employer had put a huge strain on his mother’s wellbeing. The Claimant was seen at the Accident and Emergency Department (A&E) and was discharged later that day.

[6]In the same month, the Claimant started seeing a psychologist. She attended therapy sessions from March 2023 to April 2024.

[7]In May 2023, the Claimant started applying for new roles. She applied for numerous roles in the relevant sector. In other words, in jewellery, accessories and antiques businesses. She applied for numerous vacancies, dropped off her CV at various possible employers, and tried to make contact with prospective employers through social media.

[8]In 2024, when the Claimant had been unsuccessful in obtaining a role in her preferred field, she broadened her search and applied for roles as administrators, with estate agents, and in the music business.

[9]By the date of the remedy hearing, the Claimant had not found a new role. The relevant law Financial losses, Chagger and Mitigation of loss

[10]Under section 124(6) of the Equality Act 2010, any award of compensation for discriminatory acts will be assessed under the same principles as apply to torts. The aim is to put the claimant in the position, so far as is reasonable, that he or she would have been had the tort not occurred (Ministry of Defence v Wheeler

[1998] IRLR 23

and Chagger v Abbey National plc

[2010] IRLR 47

). Only those losses caused by the unlawful act will be recoverable. Where an individual would have lost their job at some point in any event, the losses suffered after the date when the individual would have been dismissed anyway have not been caused by the discriminatory dismissal, and are not recoverable.

[11]A claimant is expected to mitigate the losses they suffer as a result of an unlawful act, and the tribunal will not make an award to cover losses that could reasonably have been avoided. A claimant is expected to take reasonable steps to minimise the losses suffered as a consequence of the unlawful act.

[12]In Fyfe v Scientific Furnishing Ltd

[1989] IRLR 331

, it was found that the burden of proving a failure to mitigate is on the respondent. It is insufficient for a respondent merely to show that the claimant failed to take a step that it was reasonable for them to take, rather, the respondent has to prove that the claimant acted unreasonably. There is a difference between acting reasonably and not acting unreasonably. If the claimant has failed to take a reasonable step, the respondent has to show that any such failure was unreasonable (Wright v Silverline Car Caledonia Ltd

UKEATS/0008/16

). Injury to feelings and personal injury

[13]Under section 119(4) of the Equality Act 2010, injury to feelings awards are available where a tribunal has upheld a complaint of discrimination. The award of injury to feelings is intended to compensate the claimant for the anger, distress and upset caused by the unlawful treatment they have received. It is compensatory, not punitive. Tribunals have a broad discretion about what level of award to make. The focus is on the actual injury suffered by the claimant and not the gravity of the acts of the respondent (Komeng v Creative Support Ltd

UKEAT/0275/18/JOJ

[14]In Vento v Chief Constable of West Yorkshire Police (No2)

[2003] IRLR 102

, the Court of Appeal identified three broad bands of compensation for injury to feelings and gave the following guidance: 1) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. 2) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. 3) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

[15]The Vento Bands are revised in Presidential Guidance issued by the Presidents of the Employment Tribunals in England & Wales and Scotland. In this case, the Claimant submitted a Claim Form to the Employment Tribunal against the Respondents on 14 April 2023. In respect of claims presented on or after 6 April 2023, the “Vento bands” were as follows: a lower band of £1,100 to £11,200 (less serious cases); a middle band of £11,200 to £33,700 (cases that do not merit an award in the upper band); and an upper band of £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200.

[16]In Vento v Chief Constable of West Yorkshire Police (No2), it was held that the matters compensated for by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

[17]Employment tribunals can make separate awards for injury to feelings and personal injury. Where separate awards are made, tribunals must be careful to avoid double recovery. There is clearly a danger in discrimination cases of an overlap between an award for pain, suffering and loss of amenity arising from psychiatric injury and an award for injury to feelings resulting from the same discriminatory acts. In HM Prison Service v Salmon

[2001] IRLR 425

, the EAT acknowledged that, although the two awards are distinct in principle, they are not easily separable in practice. The EAT notes that tribunals could treat the personal injury as having been compensated for under the heading of injury to feelings. Aggravated damages

[18]Aggravated damages are an aspect of injury to feelings, and are awarded only on the basis, and to the extent that the aggravating features have increased the impact of the discriminatory act on the claimant and therefore the injury to feelings. They are compensatory, not punitive. The appropriate acts include: 1) Where the act is done in an exceptionally upsetting way. In Commissioner of Police of the Metropolis v Shaw

UKEAT/0125/11/ZT

, the EAT referred to “high-handed, malicious, insulting or oppressive’ behaviour”. 2) Discriminatory conduct that is evidently based on prejudice or animosity or which is spiteful or vindictive or intended to wound is likely to cause more distress than if done without such a motive, for example as a result of ignorance or insensitivity. 3) Where the act is aggravated by subsequent conduct. For example, conducting the trial in an unnecessarily oppressive manner, failing to apologise, or failing to treat the complaint with the requisite seriousness. (Bungay & Anor v Saini & Ors

UKEAT/0331/10

and Zaiwalla & Co v Walia [2002]

UKEAT/451/00

[19]It is important for Tribunals to consider the risk of double recovery and consider whether the overall award of injury to feelings and aggravated damages is proportionate to the totality of the suffering caused to the claimant. Acas Uplift

[20]Under section 207(A) of the Trade Union and Labour Relations (Consolidation) Act 1992, an award for compensation can be increased or reduced, by up to 25%, if the employer or employee has unreasonably failed to comply with the Acas Code of Practice on disciplinary and grievance procedures.

[21]In Rentplus v Coulson

[2022] EAT 81

, the EAT held that tribunals are concerned with substantive compliance with the requirements of the Code. The EAT suggested that a Tribunal should ask: 1) Is the claim one which raises a matter to which the Acas Code applies? 2) Has there been a failure to comply with the Acas Code in relation to that matter? 3) Was the failure to comply with the Acas Code unreasonable? 4) Is it just and equitable to award an uplift because of the failure to comply with the Code and, if so, by what percentage, up to 25%?

[22]The court held in Slade v Biggs [2021] EA-2019-00687 that the award has both compensatory and punitive elements. Written statement of particulars

[23]The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 amended sections 1 to 7B of Part I of the Employment Rights Act 1996. The amendments mean that workers are entitled to receive a written statement of employment particulars no later than the first day of their new job. An employee may bring a claim to a tribunal alleging that his or her employer has not complied with these obligations (section 11(1) of the Employment Rights Act 1996).

[24]There is an additional right to a remedy from a tribunal where a claim has been brought within the list of jurisdictions in Schedule 5 to the Employment Act 2002, which includes claims under Section 23 of the Employment Rights Act 1996 for unauthorised deductions from wages. Under sections 38(1) to (5) of the Employment Act 2002, where under such a claim the tribunal finds for the employee, whether or not it makes an award in respect of that claim, and where when the proceedings were brought the employer was in breach of the duty to give written particulars, the tribunal will make an award of 2 weeks’ pay unless it would be unjust and inequitable to do so, and may if it considers it just and equitable in all the circumstances make an award of 4 weeks’ pay.

[25]In Govdata Ltd v Denton

UKEAT/0237/18/BA

it was held that for such an award to be made, the employer must be in breach of the obligation at the time the proceedings have begun. Where the employer has complied with its obligations under section 1, even belatedly, before the proceedings have begun, the tribunal has no power to make such an award. Interest on discrimination awards

[26]Under section 139 of the Equality Act 2010, and the Employment Tribunals (Interest on Awards in Discrimination Cases) (Amendment) Regulations 2013, a tribunal is able to award interest on awards of compensation made in discrimination claims. The tribunal may award interest on past financial loss and injury to feelings awards, as well as other types of compensation.

[27]The interest rate to be applied is 8% and interest is calculated as simple interest accruing from day to day (Regulation 3(1) of the Employment Tribunals (Interest on Awards in Discrimination Cases) (Amendment) Regulations 2013).

[28]Under Regulation 6(1)(a), interest is awarded on injury to feelings awards from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation.

[29]Under Regulation 6(1)(b), interest is awarded on all sums other than injury to feelings awards from the mid-point of the date of the act of discrimination complained of and the date the tribunal calculates the award. 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 (Regulation 4).

[30]Under Regulation 6(3), where a tribunal considers that serious injustice would be caused if interest were to be calculated according to the approaches above, it can calculate interest on such different periods as it considers appropriate. Grossing up

[31]Awards will be ‘grossed up’ by a tribunal where the sum to be received by the claimant will be taxed. Grossing up therefore applies to awards where section 401 of the Income Tax (Earnings and Pensions) Act 2003 operates to tax the sum in the claimant’s hands. Section 401 applies to payments and other benefits which are received directly or indirectly in consideration or in consequence of, or otherwise in connection with: a) the termination of a person’s employment; b) a change in the duties of a person’s employment; or c) a change in the earnings from a person’s employment, by the person, or the person’s spouse, blood relative, dependant or personal representatives.

[32]In this case the recipient enjoys a tax free amount of £30,000 in any particular tax year and will then pay tax on sums in excess of this figure. To avoid disadvantage to the claimant, the tribunal should ‘gross up’ any award it makes over £30,000. This requires the tribunal to estimate the tax the claimant will have to pay on receipt of the award and add a sum for that tax back on to the award, therefore cancelling out the tax burden to the claimant. The Tribunal’s findings Breach of contract – sales commission

[33]The Tribunal has already concluded as a part of the liability judgment that the Claimant is entitled to £2,000 as a commission payment, which was agreed between the Claimant and the Second Respondent.

[34]At the remedy hearing, the Respondents argued a figure of £150 was appropriate. However, the Tribunal had already made factual findings on this point as a part of the liability judgment. The Tribunal therefore awarded £2,000 in respect of this claim. Breach of contract - employer pension contributions

[35]The Tribunal upheld the Claimant’s claim of breach of contract in respect of the failure of the First Respondent to provide the Claimant with a pension. The Claimant is therefore entitled to the employer pension contributions which she should have been paid throughout her employment.

[36]The parties were agreed the Claimant’s gross salary was £13,440. The minimum employer contribution is 3% under auto enrolment. 3% of £13,440 is £403.20 per annum. The Claimant was employed from 20 October 2021 to 7 March 2023. This is 16 months and 15 days. £403.20 divided by 12 is £33.60, which is the monthly employer contribution. £33.60 multiplied by 16.5 is £554.40. The Tribunal therefore awarded £554.40 in respect of this claim. Breach of contract – wrongful dismissal

[37]The Claimant was dismissed without notice and is entitled to one week of pay. The parties were agreed that the Claimant’s net weekly pay was £210. The Tribunal therefore awarded £210 in respect of this claim. Compensation for discrimination Financial losses

[38]The Tribunal considered what financial losses had arisen as a result of the acts of victimisation which it had upheld, which included putting the Claimant on garden leave in January 2023 and then failing to reinstate her from garden leave in March 2023, and thus ending her employment.

[39]The Claimant claimed her loss of income from the Respondents from the end of her notice period, which was 13 March 2023, to the date of the remedy hearing, which was a period of 102 weeks. When the Claimant was working for the First Respondent, she was paid a net income of £210 per week and so claims 102 weeks at a rate of £210 per week. This comes to £21,420. Would the Claimant’s employment have been terminated in any event?

[40]At the remedy hearing, the Respondents argued that the Claimant’s employment would have come to an end within 4 weeks of 7 March 2023 even if she had been reinstated from garden leave. It was argued that the Claimant would have been dismissed within 4 weeks of returning from garden leave for conduct on the basis that the Claimant was perceived as unreliable.

[41]The Tribunal did not accept that argument for a number of reasons: a) There was no evidence presented by the Respondents that the Claimant would have been dismissed within 4 weeks of returning from garden leave or that she would have been dismissed for conduct. b) To support this argument the Respondents pointed to a single sentence in paragraph 33 of the Second Respondent’s witness statement for the liability hearing, where it was noted, “I additionally find it extraordinary that the Claimant considered there was any scope for continuation of her employment, as it was clear that the employment relationship had irretrievably broken down, arising from the actions of the Claimant.” There is nothing in this paragraph which said the Second Respondent intended to dismiss the Claimant for conduct reasons due to unreliability. This sentence followed a sentence about the Claimant having submitted a grievance and said nothing about the Claimant’s alleged unreliability. The Second Respondent’s oral evidence to the Tribunal was that he considered that the relationship was irretrievably broken down because the Claimant had alleged that he had discriminated against her. c) In addition, the Tribunal was not shown documentary evidence which suggested either that the Claimant was unreliable or that the Respondents were concerned about this. The Claimant’s oral evidence at the remedy hearing, which the Tribunal accepted, was that it was never suggested to her by the Respondents that she was unreliable. The Tribunal saw no evidence of any warnings, or any disciplinary processes having been started. Quite the contrary, the Tribunal saw evidence which suggested the Claimant worked additional hours when the Second Respondent’s father was on holiday during half term and saw evidence that the Claimant was regularly rostered to work up until Christmas in 2022, including working additional shifts in the week before Christmas day. d) It was put to the Claimant in cross examination that she had taken time off on Christmas eve to go Christmas shopping and failed to return to work. The Claimant’s evidence was that she went shopping in her lunch break, but said she had returned, and she named a number of items she said she had sold in the afternoon after she had returned to work. The Tribunal accepted that the Claimant went shopping in her lunch break, returned to work and then made a number of sales as she described in her evidence.

[42]As a result, the Tribunal did not accept the Respondents’ argument that the Claimant would have been dismissed within 4 weeks of 7 March 2024. Mitigation of loss

[43]The Respondents did not seek to argue the Claimant had failed to mitigate her loss by suggesting she had behaved unreasonably. The Respondents did not identify any steps she had failed to take in terms of looking for work or seek to persuade the Tribunal she had failed to make sufficient applications. The Respondent did not provide the details of any vacancies which they argued the Claimant should have applied for. The Tribunal kept in mind that the case of Fyfe v Scientific Furnishing Ltd has held that the burden of proving failure to mitigate is on the Respondent and they have to prove the Claimant acted unreasonably. No arguments were put forward about the Claimant acting unreasonably.

[44]In any event, the Tribunal concluded that the Claimant had taken reasonable steps to mitigate her losses. She provided evidence which showed she had applied for a large number of roles in the areas that she has experience in, and having been unsuccessful in that field, she had significantly broadened her search and applied for numerous other administrative roles as well.

[45]As a result, the Tribunal concluded the Claimant was entitled to claim her loss of income from the end of her notice period, 13 March 2023, to the date of the remedy hearing. As set out above, this is a net total of £21,420. Injury to feelings and personal injury

[46]The Claimant asked the Tribunal to make separate awards for injury to feelings and for personal injury.

[47]The Claimant had produced a report from her therapist who she saw for 12 months. He diagnosed her with having severe post traumatic stress disorder. He describes that she was suffering from anxiety, chronic insomnia, fatigue, and low self esteem, which significantly impacted her life.

[48]The Tribunal also took into account the Claimant’s evidence in her witness statements about the profound impact that her employment had on her health and well-being.

[49]The Tribunal was very careful in this case to keep in mind that a considerable amount of the Claimant’s distress and stress whilst she was employed arose from the fact she had to repeatedly asked to be paid, and the fact she wished to be treated in the same way as other employees by being paid by way of PAYE, regularly and on time, and the fact that she wanted a contract of employment and a pension. A considerable amount of the distress that the Claimant suffered was also attributable to her feelings that she was being discriminated against on the grounds of her sex and race by the Respondents’ failure to pay her properly and offer her a contract, a pension, and holiday pay.

[50]The Tribunal were mindful therefore that the compensation for injury to feeling had to be for the injury to feelings caused to the Claimant by the discriminatory events which the Respondents had been found to be liable for, and not for those which were not upheld, or for matters such as her unpaid wages, for which the Claimant cannot be awarded damages for injury to feelings.

[51]The Tribunal concluded the Claimant’s mental health was significantly adversely affected by the two acts of victimisation which brought about the end of her employment – putting her on garden leave and the failure to reinstate her from garden leave. The Claimant was still attending work in December 2022 and even working additional shifts that month. Despite her claim for wages having been instigated by solicitors, she was still able to continue to work. In January 2023, she was put on garden leave. In March 2023, she was not reinstated from that leave. By 13 March 2023, her health had deteriorated to such an extent that she needed to attend A&E due to an act of self-harm, and then immediately start therapy. There was a significant increase in the Claimant’s distress when it became apparent that the employment relationship was over, and a significant decline in her mental health.

[52]It was suggested to the Claimant in cross-examination that the reason why she self-harmed and attended A&E was because of her family situation. The Tribunal rejected any suggestion that the Claimant’s visit to A&E was related to her family or personal life. The Tribunal accepted she felt she was in a crisis as a result of what had occurred in her work life, and particularly, the fact she had been put on garden leave, was not paid while on garden leave, her grievance was ignored, she was not reinstated from garden leave, and her employment therefore terminated.

[53]The Tribunal also took into account that it took the Claimant a full year of attending therapy sessions every week for her to be able to recover sufficiently such that she was able to stop.

[54]The Tribunal also took into account that the litigation itself has been extremely stressful for the Claimant. The Respondent did not participate properly in the case management process, which meant the preparations for the final hearing were unnecessarily stressful for the Claimant, who was unrepresented for a long period of time.

[55]The Tribunal carefully considered the Claimant’s report from her therapist but decided not to make a separate award for personal injury and instead decided to take into account the impact of the discriminatory acts, which were upheld, on the Claimant’s mental health when setting the amount of the award for injury to feeling. The Tribunal decided to adopt this course of action because the Claimant’s report relates to the symptoms the Claimant experienced as a result of all the ways she was treated by the Respondent, including the failure to pay her, and the failure to provide her with a contract or a pension. These are matters which the Tribunal cannot award the Claimant damages for injury to feeling or personal injury. The report is also based on the Claimant’s belief she was discriminated against on grounds of race and sex, and similarly the Claimant did not succeed with her claims of direct discrimination. As a result, it would be very difficult to properly attribute the Claimant’s personal injury to the parts of the Claimant’s claims which succeeded and for which she could be compensated.

[56]The Tribunal did however accept that the Claimant’s mental health worsened significantly when her employment ended, for the reasons already explained. Therefore, while the Tribunal would have awarded £14,000 for injury to feeling, it decided to increase the award to £16,000 to take into account the significant impact that losing her employment had on the Claimant’s mental health.

[57]The Tribunal rejected the Respondents’ argument that the award should be within the lower Vento band. The Claimant’s employment ended. She greatly enjoyed the role. The impact on her in terms of her personal life, health, wellbeing, and quality of life, as described in her witness statements, were serious, and therefore the Tribunal concluded an award of £16,000 was appropriate. Aggravated damages

[58]The Claimant sought an award of aggravated damages in this case, but the Tribunal decided not to make an award for this type of damages.

[59]The Tribunal did not consider that the criteria were met in respect of the first two categories, namely 1) where the act is done in an exceptionally upsetting way and 2) where the motive is spiteful or vindictive.

[60]The Tribunal were only able to take into account the discriminatory acts that were upheld. The manner in which the Claimant was put on garden leave, and then not returned from garden leave, were not done in an exceptionally upsetting way. As already indicated, the Tribunal appreciated that the end of the employment relationship had a profound effect on the Claimant, but we did not conclude the manner in which it was done was high handed, malicious, insulting or oppressive.

[61]The Tribunal also did not consider that the Respondents’ motive was such that we could award aggravated damages on that basis. The Second Respondent’s evidence was such that he effectively admitted the victimisation. He considered that the relationship had broken down after she had accused him of being racist and sexist. However, we did not find that he was acting maliciously or spitefully when he concluded the relationship had broken down and concluded that she could not return because she had made that allegation.

[62]Finally, we considered the third ground on which a Tribunal can award aggravated damages, that is when the subsequent conduct warrants it. The Tribunal concluded that there was some merit in this argument. The Claimant has not received an apology. Mr Van Heck pointed out that the Second Respondent did not take responsibility for his actions despite the Claimant clearly being owed wages, and the wages were only paid when the Tribunal ordered them to be paid. This is a valid point but does not relate to the Claimant’s discrimination claims. The way the Respondents approached the preparations for the final hearing were not ideal. However, overall, the Tribunal did not find that this reached the threshold that warranted an award of aggravated damages. Further the Tribunal considered the stress of the litigation is a matter which the Claimant has been adequately compensated for in her award for injury to feelings. Uplift for a breach of the Acas Code of Practice

[63]The Claimant asked the Tribunal to make an uplift to the compensatory award because of the Respondents’ breaches of the Acas Code of Practice on disciplinary or grievance procedures.

[64]The Tribunal concluded that the Acas Code of Practice on disciplinary or grievance procedures did apply because the Claimant raised a grievance. The Tribunal found that the Respondent unreasonably failed to comply with paragraphs 33, 40 and 41 of the Code, in that the grievance was ignored, the Claimant was not invited to a grievance meeting, and she was not given a grievance outcome. She was not offered a right of appeal.

[65]The Tribunal concluded it would be just and equitable to increase the compensatory award in this case. In reaching the decision about how much to increase the compensatory award by, the Tribunal took into account the fact that the First Respondent is a small company, without a dedicated HR resource. That said, the Code is easily accessible to employers online. By the time the grievance was submitted the parties were corresponding through solicitors, so it is surprising that the Respondents did not take any steps to deal with the grievance properly. The Tribunal also took into account the fact that there has not been any explanation for why the grievance was not dealt with, and the fact that it was ignored was a matter which caused the Claimant considerable additional distress. As a result, the Tribunal decided to make an uplift of 15%.

[66]A 15% uplift increases the award for loss of income from £21,400 to £24,610 and increases the award for injury to feeling from £16,000 to £18,400. Failure to provide written particulars of employment

[67]The Claimant asked the Tribunal to make an award of four weeks of wages due to the First Respondent’s failure to provide written particulars of employment.

[68]The Tribunal concluded that it was just and equitable in this case to make an award of four weeks wages for the failure to provide the Claimant with written particulars of employment.

[69]The Claimant asked for a contract of employment. The Second Respondent’s evidence to the Tribunal was that the Claimant was not entitled to a contract because she was a probationer. However, the Claimant’s colleague was given a contract of employment. The Tribunal accepts the Second Respondent ran a small business but found he failed to take steps to ensure some of the most fundamental and basic steps of employing staff were in place. For example, the Claimant should have been given a contract of employment, paid by PAYE like the other staff were, should have been provided with pay slips, should have been paid on time, and should have been offered a pension. If the Respondents are going to employ people, they need to ensure they are aware of the legal obligations on an employer. In this case, the Claimant should not have needed to ask for a contract of employment. She should have been provided with written particulars of employment on her first day of work. In these circumstances, the Tribunal considers an award of four weeks’ pay is just and equitable. The Tribunal therefore awards 4 x £210 which is £840. Interest

[70]Under the Regulations, the Claimant can be awarded interest at a rate of 8% on her financial losses from the midpoint to the date of the remedy hearing, and a rate of 8% on her losses for injury to feeling from the date of the discriminatory act to the date of the remedy hearing.

[71]The Claimant’s loss of income is £24,610. The midpoint between 7 March 2023 and the date of the remedy hearing, 24 February 2025, is 2 March 2024. 8% on £21,420 from 2 March 2024 to 24 February 2025 is £1,937.34.

[72]Under the Regulations, the Claimant can be awarded interest at a rate of 8% on her damages for injury to feeling from the date of the discriminatory act. The first discriminatory act took place in November 2021 (the act of harassment related to sex), the second took place in January 2023 (the first act of victimisation), and the third took place in March 2023 (the second act of victimisation). The majority of the award for injury to feelings relate to the second and third acts of discrimination, namely the two acts of victimisation, which led to the Claimant’s employment ending. These two acts of discrimination were considerably more serious than the comments which the Tribunal found amounted to harassment related to sex.

[73]As a result, the Tribunal considered that serious injustice would be caused if the interest were calculated from November 2021. Therefore, the Tribunal considered the date of the second act of discrimination, when the Claimant was put on garden leave, was the appropriate date from which the Tribunal should award interest on the injury to feelings award. Interest at a rate of 8% from 9 January 2023 to the date of the remedy hearing, on £18,400 is £3,133.55. Expenses – Therapy sessions

[74]The Claimant asked the Tribunal to compensate her for the costs incurred as a result of attending therapy sessions. However, the Tribunal decided not to make an award for these expenses.

[75]The Tribunal were not confident that the Claimant would not have required therapy sessions for the considerable distress she was caused in respect of the way she was treated by the Respondent, but for which she cannot be compensated under a discrimination claim. For example, the failure to pay her wages, the failure to give her a contract, or pay slips, or offer her a pension. Even if the Claimant had not suffered the one act of harassment related to sex and the two acts of victimisation which the Tribunal upheld, the Claimant may well have still to attend therapy sessions to deal with her belief she had been discriminated against on the basis of her sex and race. As a result, the Tribunal decided not to make an award for these expenses. Grossing up

[76]The total amount of the Claimant’s claim is £51,685.29. This is made up of £2,000 for breach of contract in respect of the commission payment, £554.40 for breach of contract for employer pension contributions, £210 for notice pay, £24,610 for loss of income including a 15% uplift, interest on her financial losses in the amount of £1937.34, £18400 for injury to feeling including a 15% uplift, interest on her injury to feeling award in the amount of £3133.55 and £840 for failure to provide written particulars of employment.

[77]As this award exceeds £30,000 it needs to be grossed up to account for the tax that the Claimant will be asked to pay on it. The first £30,000 of the award is tax free. Therefore, the Tribunal has awarded an additional 20% on the figure of £21,685.29, which is the amount that the award exceeds £30,000 by. This is £4,337.05. Therefore, the total figure awarded to the Claimant is £56,022.34. Approved by: CORRECTED JUDGMENT 1. The Claimant’s application to strike out the Respondents’ Response is refused.

REASONS

An oral judgment and reasons, regarding the Claimant’s application to strike out the Respondent’s response, having been given to the parties at the hearing on 3 September 2024, and written reasons having been requested at the judgment hearing on 31 January 2025, in accordance with Rule 60 of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

Introduction

[1]The Claimant applied to strike out the Respondents’ Response. She made this application on the basis of all five grounds set out under Rule 37 of the Employment Tribunal Rules of Procedure 2013.

[2]Rule 37 of the Employment Tribunals Rules states: “37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

[3]When considering an application for strike out, the Tribunal must first consider whether any of the grounds have been established and then having identified an established ground, it must then decide whether to exercise its discretion to strike out a claim or response. The test of proportionality must be borne in mind by a party considering whether to make an application.

[4]The Tribunal has taken into account the comments made by HHJ Taylor in Mallon v AECOM Ltd

[2021] ICR 1151

, EAT, where he commented that it was important before applying for a strike-out order to consider the proportionality of doing so, including the likelihood that it would result in a saving of expense and avoid delay. The Tribunal has also considered the general guidance given in the case law regarding whether a lesser sanction would suffice.

[5]Under Rule 37(2) a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations.

[6]The Tribunal accepted that Counsel for the Respondents, Ms Millin, was only made aware on Sunday 1 September 2024 that an application would be made on Monday 2 September 2024 when it was communicated to her by email from Counsel for the Claimant, Mr Van Heck. However, Ms Millin had the whole of Monday afternoon to take instructions. The hearing had finished by noon on Monday 2 September 2024. The Tribunal heard the Respondents’ response to the application on Tuesday 3 September 2024 at 10am.

[7]Ms Millin indicated she felt she had been given insufficient notice of the intention to make the application. Part of the difficulty with that submission is that the Claimant only received a hard copy of the bundle on Wednesday 28 August 2024 by post and contained within that bundle for the first time was the Respondent’s Response to her Further and Better Particulars and the Second Respondent’s witness statement. She had not seen those documents previously. They contained new points of defence she was not aware would be relied upon. Also, the documents which the Claimant had provided to the Respondents previously, by way of disclosure, were not in the bundle. Therefore, in the short amount of time before the hearing was scheduled to start, the Claimant produced her own bundle.

[8]The Tribunal was of the view that Ms Millin was given sufficient additional time, on Monday 2 September 2024, to be able to respond to the application and was given a reasonable opportunity to make representations. Procedural background

[9]This case has a slightly complicated procedural history.

[10]A preliminary hearing was held on 24 January 2024. The Claimant was ordered by EJ Michell to provide Further and Better Particulars of claim. The Claimant complied with that order. The Respondents says it was informally agreed that it would be an amended set of Particulars of Claim, rather than a new additional set of particulars. However, there was nothing in Employment Judge Michell’s order which required the Particulars of Claim to be set out in a particular format. The Further and Better Particulars provided by the Claimant set out the information that EJ Michell required that they contain. The Respondents were ordered by Employment Judge Michell to provide a properly particularised Amended Grounds of Resistance by 18 March 2024.

[11]At the first preliminary hearing, the Claimant had withdrawn her claim of indirect discrimination and a claim under section 103A of the Employment Rights Act 1996 for automatically unfair dismissal on grounds of having made a protected disclosure. Those claims were dismissed on withdrawal.

[12]At a further preliminary hearing, held on 26 April 2024, by Employment Judge McCarthy it was noted that the Respondents had received the Claimant’s Further and Better Particulars, the Respondents said the Claimant’s case was still unclear and so they were not in a position to amend their Grounds of Resistance. The Tribunal has read the original claim and the Further and Better Particulars and does not consider the Claimant’s claims were unclear. In any event, it was agreed at the preliminary hearing that the Claimant would provide a further copy of her original pleadings which would incorporate the information in her Further and Better Particulars. The Claimant was specifically told not to add anything new, she was to delete what had been withdrawn, set out the new additions in red, and it was noted that she may need to make an application to amend.

[13]Under the terms of Employment Judge McCarthy’s Order, the Claimant was required to provide this further set of amended pleadings by 10 May 2024, and the Respondents were required to provide the amended Response by 7 June 2024.

[14]By the end of May 2024, the Claimant had stopped being legally represented and she did not appreciate that the Particulars of Claim had not been provided in the format that the Tribunal had ordered. On 29 May 2024, the Claimant wrote to the Tribunal and the Respondents indicating she was representing herself and seeking the Respondents’ disclosure and the properly particularised Response. She wrote again on 10 June 2024.

[15]On 12 June 2024, the solicitors firm acting for the Respondents wrote to the Claimant and the Tribunal. In the email, which was sent by Mr Hazelgrove, the Claimant was asked to seek all her documents from her previous solicitors. Mr Hazelgrove’s email signature indicates he is the Head of Finance Operations. The Claimant says he is the First Respondent’s accountant. The Claimant was seeking the Respondents’ disclosure and not her own documents.

[16]On 19 June 2024, the Claimant wrote to say she was waiting to receive the Respondent’s disclosure and a draft bundle index. There was no response from the Respondent.

[17]On 27 June 2024, the Claimant sent an email saying she had received a copy of her papers from her previous solicitors. She noted if the Respondents wanted another copy of her Further and Better Particulars she could send it. There was no response from the Respondents.

[18]On 1 July 2024, the Claimant’s sister in law, Ms Lewis, wrote an email to the Tribunal and the Respondents setting out comprehensively what still needed to be done under the Orders. She re-sent the Claimant’s Further and Better Particulars. She noted that the Respondents had not provided disclosure.

[19]On 10 July 2024, Mr Hazelgrove responded to say they could not communicate with Ms Lewis without the Claimant’s authorisation and noted they did not have a copy of the Tribunal’s latest Order. There was no suggestion in that email that nothing had been done by the Respondent, or could not be done by the Respondent, because the Claimant had not provided the Particulars of Claim showing the amendments in red text.

[20]On 11 July 2024, the Claimant provided authorisation for Mr Hazelgrove to communicate with Ms Lewis. On the same day, in a different email, she noted that she had not received a particularised Response. There was no response from the Respondents.

[21]On 19 July 2024, the Claimant sent Mr Hazelgrove a copy of the Tribunal’s Orders. She pointed out at the end of the email that she had not received a particularised Response. There was no response from the Respondents.

[22]On 23 July 2024, the Claimant sent an email to Mr Hazelgrove and the Tribunal which contained a googledrive link which contained her documents for disclosure. She noted the Respondents’ lack of response to her various emails. There was no response from the Respondents. The Claimant wrote again the following day, 24 July 2024, and pointed out she had not received a response. She also sent a Pre-Hearing checklist in which she set out she had not received anything from the Respondents. There was no response to that email from the Respondents.

[23]On 31 July 2024, Employment Judge Quill sent the Respondents a Strike Out warning. It noted he was considering striking out the Response because the manner in which the proceedings were being conducted by or on behalf of the Respondents was scandalous, unreasonable or vexatious, the Respondents had not complied with the Tribunal Order of 26 April 2024 and the Response was not being actively pursued.

[24]On 9 August 2024, the Claimant emailed the Tribunal noting she had not received a response from the Respondents. The reason this was sent was because although the Respondents’ solicitor had responded to Employment Judge Quill’s warning on 7 August, they had not sent their response to the Claimant.

[25]In the Respondent’s response to the Tribunal, it was suggested the Further and Better Particulars provided by the Claimant did not adhere to Employment Judge Michell’s Order but did not say how they failed to comply. It was set out that after the Preliminary hearing in April 2024, the Claimant had failed to provide the amalgamated Particulars and that all the other Orders followed from that Order. What is surprising is that at no point prior to 7 August 2024 had the Respondent’s solicitors requested this document from the Claimant.

[26]There are a number of assertions in the letter which suggest the author had not seen the numerous emails sent by the Claimant to Mr Hazelgrove. For example, the letter sets out the correspondence that had been received by the Claimant but misses out a significant number of the emails that she had sent, and it erroneously suggested the Respondents had only been informed that the Claimant was representing herself on 10 June 2024, when in fact the Tribunal has seen emails referring to this which were sent by the Claimant to the Respondents in May 2024. The letter suggested the Respondents could provide their list of documents, witness statements and a chronology by 14 August 2024, and a Response to the now compliant Further and Better Particulars. Unfortunately, despite this reassurance, the Respondents did not provide those documents by 14 August 2024.

[27]On 19 August 2024, the Claimant sent the Respondents and the Tribunal an email. It was apparent she had not received anything further, but said she would send her witness statement the following day.

[28]On 21 August 2024, the Respondents sent the Claimant a letter saying she would be provided with a copy of the Statement of Issues, a chronology, a Response and a bundle of documents by the following day. They asked her to confirm which documents she wished to rely on, although she had already provided them with the documents.

[29]On 23 August 2024, Mr Hazelgrove emailed the Claimant three attachments, none of which contained the bundle.

[30]On 28 August 2024, the Claimant emailed a copy of her witness statement to the Tribunal and the Respondent.

[31]On the same day the Claimant received a copy of the Respondent’s bundle. This was received on the Wednesday of the week before the hearing. In other words, two working days before the hearing was due to start on Monday 2 September 2024.

[32]As already noted, in the bundle was the Respondents’ particularised Response and the Second Respondent’s witness statement. These were documents that the Claimant had not seen before. As noted before, the Response contained new points of defence, and the bundle did not contain the Claimant’s documents. The Tribunal’s decision

[33]In reaching our decision we have born in mind the case law referred to by counsel for the Claimant.

[34]In Blockbuster Entertainment Ltd v James

[2006] IRLR 630

, CA, it was held that for a tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible, and in either case, the striking out must be a proportionate response. The Court of Appeal also confirmed that it would take something very unusual indeed to justify striking out on procedural grounds a claim or response when the parties are at the point of starting a final hearing.

[35]In Emuemukoro v Croma Vigilant (Scotland) Ltd

[2022] ICR 327

, EAT, the EAT rejected the proposition that the question of whether a fair trial is possible must be determined in absolute terms, by considering whether a fair trial is possible at all, rather than considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. The first ground: The Response is scandalous or vexatious or has no reasonable prospect of success

[36]The Tribunal first of all considered the first ground, namely whether the Response is scandalous or vexatious or has no reasonable prospect of success.

[37]The Tribunal did not find that this ground was established. There are parts of the Response that state that the Second Respondent would need to check points with his accountant. While that does not provide a substantive response it cannot be said that the Response which definitely has no reasonable prospects of success. Further, this only relates to the Respondents’ response to some specific parts of the Claimant’s claims.

[38]Further, the Respondents’ suggestion that the Claimant remained in a probationary period throughout her entire employment was only pointed to by the Claimant as not providing a response to her claim for pension loss. However, the Tribunal took into account that the Claimant has brought a wide range of claims, including discrimination claims, where the burden of proof starts with the Claimant in the first instance. As a result, the Tribunal did not concluded that the Response is scandalous or vexatious or has no reasonable prospect of success.

[39]There was a further point made by Mr Van Heck that parts of the Response were scandalous or vexatious and this included a reference to the Claimant being hysterical and/or consuming alcohol. The Tribunal did not find that reached the threshold of being scandalous or vexatious. Furthermore, these appeared to be additional comments made about the Claimant, but not part of any actual response to any particular claim. Second ground: The manner in which the proceedings have been conducted by or on behalf of the Respondents has been scandalous, unreasonable or vexatious. Third ground: Non-compliance with any of these Rules or with an order of the Tribunal.

[40]The Tribunal considered the second and third grounds together.

[41]The Tribunal found that the Respondents conduct has been unreasonable in terms of the manner in which they have prepared for the hearing. This is based on the chronology of events that has been set out above.

[42]It does not appear to the Tribunal that the Respondents have provided disclosure. There has been a failure to take the necessary steps to comply with the Tribunal’s Orders on time.

[43]On 21 August 2024, the Claimant was sent a letter from the Respondents asking her to confirm which documents she wanted included in the bundle. But she had not been provided with the draft index or with any of the Respondents documents, and then none of her documents were included in the bundle. The Claimant was unrepresented at this time, and she only had sight of the bundle for the first time on 28 August 2024. She only had sight of the Respondents’ amended Response and the Second Respondent’s witness statement on this day.

[44]The Respondents only explanation for this has been that they did not find the Claimant’s claims to be easy to understand and she had not provided the Further and Better Particulars of Claim with the amended parts in red text. The Tribunal did not find this to be a sufficient explanation for the Respondents’ conduct. There have been few responses to the Claimant’s correspondence, and the Tribunal has not been shown any emails to the Claimant asking her for the version of the Particulars of Claim with the amendments shown in red. The Tribunal did not consider it was reasonable for the Respondents to fail to take all the next steps to prepare for the final hearing in time. The Tribunal has seen the Respondents’ solicitors’ assurance to the Tribunal in response to the Strike Out warning, that the documents would be provided to the Claimant by 14 August 20224, but the Tribunal has not been provided with any explanation as to why that was not done. The Tribunal has also not been provided with any explanation as to why there appears to have been a complete failure to provide disclosure.

[45]On that basis, the Tribunal found the Respondents’ conduct has been unreasonable and there was a failure to comply with the Tribunal’s Orders in respect of the provision of disclosure, the preparation of the bundle, and the exchange of witness statements in time.

[46]After the Tribunal had reached this conclusion, we then considered whether to exercise our discretion to strike out the Respondents’ Response. We considered this carefully but have decided against this course of action. We have concluded that a fair trial is still possible in the hearing window. The Tribunal can allow the Claimant to provide either a written response to the additional points she was not aware of prior to 28 August 2024, or she can be asked additional supplementary questions by her counsel. We consider those questions can be focused on the matters we need to hear evidence on to determine the claims. We do not need to hear supplementary evidence on all the matters she disputes, only on matters that are relevant to the claims.

[47]We emphasise that the Tribunal has taken into account the very considerable additional stress placed on the Claimant by the Respondent’s conduct. She has been required to prepare hastily and at the last minute. We are also aware of the additional work and pressure this will have placed on both counsel, and we will do what we can throughout the hearing to alleviate that. Ground 4: The Response has not been actively pursued

[48]The Tribunal went on to consider the next ground on which the application was made. We did not find that the Response has not been actively pursued overall. While there have been lengthy delays in complying with the Orders, the Tribunal now has a bundle, and a particularised Response, and the Respondent’s witness statement. The Tribunal did not find that this ground was established. Ground 5: The Tribunal considers that it is no longer possible to have a fair hearing in respect of the Response

[49]In terms of the final ground, for the same reasons previously given regarding the exercise of our discretion, the Tribunal did not reach the conclusion that a fair trial was no longer possible in the hearing window.

[50]For these reasons, the Respondents’ response will not be struck out. Apology

[51]The Claimant requested the written reasons for the Tribunal’s decision regarding her application to strike out the Respondents’ response at the hearing on 31 January 2025. The Respondents also requested the written reasons for the liability judgment at the same hearing. At the remedy hearing on 24 February 2025, the Respondents also requested written reasons for the remedy judgment. As the Claimant succeeded with some of her claims, I prioritised the provision of written reasons for the liability and remedy decisions, in case the Respondents wished to appeal. When I turned my attention to providing the written reasons for the Tribunal’s decision to refuse the Claimant’s application to strike out the Respondents’ response, I had considerable difficulty locating on my computer my written notes of the decision that had been given. I therefore had to arrange to be provided with a copy of the recording of the hearing that day, from which I have typed out the above written reasons. They have been tidied up to remove grammatical errors and perfected, and so are not a verbatim record of the oral decision, although the reasoning remains the same. I have also had other professional commitments and personal responsibilities which have added to the delay. I offer a sincere apology that it has taken longer than intended to provide these written reasons. Approved by: CORRECTED JUDGMENT 1. The Claimant’s application for reconsideration is successful and the remedy judgment dated 25 February 2025 is varied. The First and Second Respondents are liable, on a joint and several basis, for the compensation awarded for the successful complaints of discrimination. 2. The First Respondent shall pay the Claimant the following sums: a) Compensation for breach of contract in respect £2,000 of a commission payment b) Compensation for breach of contract, relating to £554.40 the failure to pay employer pension contributions from 20 October 2021 to 7 March c) Compensation for notice pay £210 d) Compensation for failure to provide written £840 statement of particulars 3. The First and Second Respondent are jointly and severally liable for the following sums: e) Compensation for past financial losses, £24,610 including a 15% uplift for breaches of the Acas Code of Practice f) Interest on compensation for past financial £1,937.34 losses calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 g) Compensation for injury to feelings, including a £18,400 15% uplift for breaches of the Acas Code of Practice h) Interest on compensation for injury to feelings £3,133.55 calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 4. The Claimant is also owed: i) Grossing up for taxation £4,337.05 of which £303.59 is tax on the awards at 2 a)-d) above, and for which the First Respondent is liable of which £4,033.46 is tax on the awards at 3 e)- h) above and for which the First and Second Respondent are jointly and severally liable Total: £56,022.34 Approved by CORRECTED JUDGMENT ON COSTS APPLICATION 1. The Claimant’s application for a costs order against the Respondent is refused.

The relevant law

[52]Rule 63 and Rule 64 of the Employment Tribunal Rules 2024 states When a judgment or order takes effect

[63]A judgment or order takes effect from the day when it is given or made, or on such later date as is specified by the Tribunal. Time for compliance

[64]A party must comply with a judgment or order for the payment of an amount of money within14 days of the date of the judgment or order, unless –(a) the judgment, order, or any of these Rules specifies a different date for compliance, or

(b) the Tribunal has stayed (or in Scotland sisted) the proceedings or judgment. 53. The power to order a stay of proceedings is a general power within Rule 30. In Jhuti v Royal Mail Group Ltd and ors

[2018] ICR 1077

, EAT, Mrs Justice Simler commented that the existence of the express power in Rule 37(1) did not mean that tribunals lack a broader power to order a stay for other reasons. A general power to stay proceedings clearly falls within a tribunal’s case management power under Rule 30. 54. The power to stay proceedings is entirely discretionary (Bastick v James Lane (Turf Accountants) Ltd

[1979] ICR 778

, EAT). 55. In City of London Corporation v McDonnell EAT 0074/18, the EAT allowed an appeal against an employment judge’s refusal to grant an application to stay a remedy hearing pending an appeal on liability to the EAT. Relatively short notice had been given of the hearing, the claimant’s counsel (who had had conduct throughout) was unavailable, and one of the respondent’s witnesses had a hospital appointment. The judge had reasoned that ‘the fact that there is an appeal is not sufficient grounds to prevent the remedy hearing proceeding. Further delay in this case is not in the interests of justice.’ This was repeated when a reconsideration of the judge’s decision was requested. The EAT held that the employment judge had either failed to engage with the grounds for the application or, if he had done so, had not given adequate reasons for his decision. The case was remitted for the application to be considered by a different employment judge. The Tribunal’s conclusions The Claimant’s application for reconsideration 56. The Tribunal decided to allow the Claimant’s application for reconsideration and decided to vary the remedy judgment so that the First and Second Respondents were liable on a joint and several liability basis for the compensation awarded for the successful discrimination claims. 57. As the Tribunal indicated in its letter of 29 May 2025, the usual practice is to award discrimination awards on a joint and several basis against joint respondents when the discrimination done by employees is the same indivisible damage as that for which the employer is vicariously liable. This was confirmed by the EAT in LB Hackney v Sivanandan and Bungay v Saini and the Court of Appeal’s decision in LB Hackney v Sivanandan. As the Tribunal noted in the letter of 29 May 2025, it was not the Tribunal’s intention to depart from the norm. 58. Ms Millin for the Respondent suggested that Mr Van Heck asked the Tribunal to make the award against the First Respondent only, and the Tribunal complied, therefore there has been no error. She argued that taking into account the principle of finality of litigation it would be unfair for the Tribunal to now allow reconsideration. Mr Van Heck said he has no recollection of making that request but even if he had, the Tribunal clearly did not intentionally acquiesce to it because it was written in the letter of 29 May 2025 that the Tribunal did not intend to depart from the usual practice, and that the remedy judgment mistakenly refers only to the First Respondent. 59. The parties were advised that I had checked my notes from the remedy hearing and I had no record of Mr Van Heck making that request, although they are by no means verbatim notes. However, more importantly, the Tribunal did not intentionally act as it did on the basis of that request. As set out in the letter of 29 May 2025 there was no intention to depart from the norm and the fact the remedy judgment only refers to the First Respondent was an error on the part of the Tribunal. 60. The Respondent did not raise any other arguments about why the Tribunal should in this case depart from the norm of making the discrimination awards on a joint and several basis. Therefore, the Tribunal considers it is in the interest of justice, and clearly the fair outcome, to rectify the error, and allow the Claimant’s application for reconsideration. 61. The parties were informed that the remedy judgment would be varied so as to state that the First and Second Respondent are liable on a joint and several basis for the compensation awarded for the successful discrimination claims. The Respondent’s application for a stay of the enforcement of the remedy award 62. The Tribunal decided not to allow the Respondent’s application for a stay of the enforcement of the remedy award. 63. The Respondent made the application to stay the enforcement of the remedy judgment on the basis that there is an appeal pending in the Employment Appeal Tribunal. That was however not straightforward. The appeal to the Employment Appeal Tribunal was submitted late. The delay was understood to be approximately 22 days. It was not yet known if the appeal would be accepted by the Employment Appeal Tribunal. 64. The Respondent made the application for a stay on the basis that there was a risk that if the Respondents make payment to the Claimant, they may not be able to recover it should the appeal be successful. They pointed to the fact that the Claimant had said a number of times in the proceedings that she has limited means. The Tribunal considered this was an argument which would equally apply to the vast majority of successful claims in the Employment Tribunal. In most cases, when compensation awards require employers to make payments to employees, the employees receiving the awards do not have substantial means. However, the norm is that remedy hearings are not postponed until after appeals have been considered. The norm is that remedy awards are still made and paid pending any appeal.

award

[65]The Tribunal carefully considered the wording of Rule 64 of the Employment Tribunal Rules 2024. The Tribunal had some concerns about whether the Tribunal has the power to stay a remedy judgment after it has been issued, because the enforcement proceedings are not a matter for the Employment Tribunal but for the county or high court. The Respondents did not make this application before the remedy hearing or at the remedy hearing but only after the judgment had been issued. The Tribunal was concerned, that other than applications for reconsideration, the proceedings in the Employment Tribunal were concluded. However, the Tribunal could see that the wording of Rule 64 suggests that the Tribunal could have the power to stay a remedy judgment, potentially even after it has been issued. Both parties pointed to the lack of authority confirming the position their opponent sought to make.

[66]In any event, the Tribunal decided that even if the Tribunal does have the power to stay the remedy judgment, we had not been persuaded to do so in this case. The Tribunal was not persuaded the appeal has good prospects of success. The Tribunal was also not persuaded that the Respondents had shown there was a real risk of financial prejudice. The Tribunal noted that we were sure the Claimant would be advised by her counsel of the risk that she will be required to repay the award should the appeal succeed, but we saw no basis on which the Tribunal should impose a stay in this case. Approved by: