Ms J Patel v Mr J Joshi and Citygate Automotive Ltd: 3306595/2022

EMPLOYMENT TRIBUNALS

Case No 3306595/2022

Between

Ms J PatelClaimant

Citygate Automotive LtdRespondent

Before

Employment Judge Quill; Ms P Barratt; Mr D Sutton

Ms C Jennings (instructed by Counsel) for respondent

Date 2 February 2024

JUDGMENT

ON RE-EMPLOYMENT(1) We decline to make an order for reinstatement (section 114 of the Employment Rights Act 1996).

(2) We decline to make an order for re-engagement (section 115 of the Employment Rights Act 1996).

REASONS

[1]We gave our liability decision, and the reasons for it, on 1 February 2024. We found that the Claimant was unfairly dismissed by Citygate Automotive Ltd (and dismissed all claims against the other respondent).

[2]We explained that we had the power to make an order for reinstatement or re-engagement, and the Claimant asked that we do so. Both sides we ready to proceed, and we heard evidence and submissions.

[3]We informed the parties that we would send a reserved decision on this part of the remedy decision, and that there would be a later separate hearing (on 19 March 2024) to deal with outstanding matters.

The Law

[4]Remedies for a claimant whose complaint of unfair dismissal has been upheld are dealt with in sections 112 to 126 of the Employment Rights Act 1996.

[5]At this particular stage of our decision making in this matter, we are considering first of all the orders that might be made under s.114 or s.115. 114.— Order for reinstatement.(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.

(2) On making an order for reinstatement the tribunal shall specify— (a) any amount payable by the employer in respect of any beneﬁt which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement, (b) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (c) the date by which the order must be complied with.

(3) If the complainant would have beneﬁted from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had beneﬁted from that improvement from the date on which he would have done so but for being dismissed.

(4) In calculating for the purposes of subsection (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other beneﬁts as the tribunal thinks appropriate in the circumstances. 115.— Order for re-engagement. (1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment. (2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including— (a) the identity of the employer, (b) the nature of the employment, (c) the remuneration for the employment, (d) any amount payable by the employer in respect of any beneﬁt which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement, (e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (f) the date by which the order must be complied with. (3) In calculating for the purposes of subsection (2)(d) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of re-engagement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other beneﬁts as the tribunal thinks appropriate in the circumstances.

[6]As per s.116(2) we will only consider an order for re-engagement if we first decided that we will not make an order for re-instatement.

[7]When considering whether to make an order for either re-instatement or reengagement (which we describe collectively as “re-employment”) we have a duty under s.116 to consider three things in particular;a. whether the employee wants an order to be made,

b. whether it is practicable for the employer to comply, and

c. whether it would be just to make either type of order where the employee’s conduct caused or contributed to some extent to the dismissal.

[8]We must always take all of those factors into account but we also have a broad discretion to take account of such other factors as we decide are relevant and appropriate in a particular case. As with any other judicial decision we must take into account everything that is relevant and ignore anything that is not relevant.

[9]The requirements of s.117 are not relevant to the decision that we are making at this stage.

[10]We first make a decision about whether to order re-employment. Having done so, we will hear further submissions about the amount payable as part of any order, or else (as the case may be) about compensation.

[11]If the employee is re-instated or re-engaged by the employer following an order made by us then their continuity of employment will be preserved. If we do order re-instatement under s.114 then the order is for the employer to treat the claimant in all respects as if they had not been dismissed.

[12]If making an order for re-instatement the tribunal is not ordering any changes in the contract so no changes about the contractual requirements for the work location or for anything else. If we did think that it was not practicable for the employee to resume on the same terms as before (either work location or anything else), then that would potentially be a reason not to order reinstatement. That is, instead we might order re-engagement or else make neither order.

[13]When an employee does want to be re-instated or re-engaged then the practicability or otherwise of the respondent being able to comply is a question of fact for us to determine. We must look at all the circumstances of the case and take a common-sense view based on the evidence. There is no presumption that it will be practicable and we must take into account relevant considerations based on the available evidence and submissions. The fact that it might be inconvenient for an employer to have to reemploy does not necessarily lead to a finding that it would not be practicable for the employer to have to comply with an order. That being said, a mere finding that it would not be impossible for the respondent to comply is not enough for us to decide to make such an order.

[14]Since there is no presumption that re-instatement or re-engagement will be, or will not be, practicable, it follows that the respondent is not obliged to provide evidence that it is not practicable. The tribunal will make its decision based on such evidence that has been presented and that can take into account the evidence from the liability hearing as well as any specific evidence at the remedy stage.

[15]Practicable means more than merely possible; it means capable of being carried into effect with success: Coleman and Stephenson v Magnet Joinery Ltd [1975] I.C.R. If an employee is not capable of starting and performing the work and that it might mean that it is not practicable.

[16]If the effect of an order would be that the employer would become overstaffed then that might mean it is not practicable. The effect of the employer having hired a direct replacement for the employee is specifically addressed by sections 116(5) and 116(6).

[17]The relationship between the claimant and their colleagues is usually a relevant factor. The fact that the employee might be on bad terms with one or more colleagues is not necessarily a complete barrier to an order.a. One factor will be whether there has been an irretrievable breakdown or whether the relationship is likely to improve.

b. Another factor is whether the bad relationship in question would have an effect on the respondent’s business. That is likely to include analysis and consideration of (for example): whether the claimant was on bad terms with somebody who would be responsible for managing him; whether he was on bad terms with somebody with whom the claimant would be expected to work closely and harmoniously with on a regular basis.

c. The more important the relationship between the claimant and the colleague, then the less likely it is that re-employment would be appropriate where the relationship has soured.

d. In some cases a decision that a relationship is so bad that re-instatement is not practicable would not necessarily prevent an order for reengagement being made.

[18]Working relationships do not necessarily have to be perfect in order for there to be an order for re-employment provided the tribunal is satisfied that both parties, and especially the claimant, would be willing to work professionally with each other.

[19]If there has been a breakdown of trust and confidence between employer and employee then an order for re-employment might not be appropriate. The employer does not have to provide that there has been a breakdown which meets the threshold that is necessary to demonstrate a breach of the implied term requiring trust and confidence.

[20]In Kelly v PGA Tour Neutral Citation Number:

[2021] EWCA Civ 559

, the Court of Appeal ruled that the correct approach to practicability was that set out in United Lincolnshire Hospitals NHS Foundation Trust v Farren. In paragraph 43 of Kelly, the Court of Appeal quoted from paragraphs 40 to 42 of the EAT decision in Farren and added at paragraph 44 that the Court of Appeal considered that that approach, was the one which employment tribunals should adopt.43. The way in which employment tribunals should approach the issue of practicability in this context was considered by the EAT in Farren. There, the employer, an NHS Trust, believed that a nurse had administered medication to patients without prior prescription, contrary to the trust’s policy. The employment tribunal had accepted that the employee had administered drugs in breach of the trust’s policy but considered that the employee had long service, had undertaken training and understood the importance of the policy on administration of medication and, in the view of the tribunal, the employee could be trusted to act properly in an environment other than an accident and emergency unit, given her experience, record and professional commitment. On appeal against that conclusion, the EAT held: “40. That, however, was not the correct question for the tribunal. As the case makes clear (see Wood Group Heavy Industrial Turbines Ltd v Crossan

[1998] IRLR 680

, para 10, cited at para 24 above), it had to ask whether this employer genuinely believed that the claimant had been dishonest, and—per the Employment Appeal Tribunal in, 27 April 2000 , para 14 (see para 25 above)—whether that belief had a rational basis. It was, after all, this employer—not some other and certainly not the employment tribunal—that was to re-engage the claimant. The issue of trust and confidence had to be tested as between the parties in order to determine, even on a provisional basis, whether an order for reengagement was practicable, whether it was capable of being carried into effect with success, whether it could work. The trust might have reached a conclusion as to the claimant's honesty by an impermissible route in its dismissal decision and might also have drawn the wrong inference at the rehearing, but the tribunal still needed to ask, as at the date it was considering whether to order re-engagement, whether it was practicable or just to order this employer to re-engage the claimant. It thus was the trust's view of trust and confidence— appropriately tested by the employment tribunal as to whether it was genuine and founded on a rational basis—that mattered, not the tribunal's. “41. We make clear that we are not saying that we find that a reengagement order was not a permissible remedy in this case. The answer did not have to be in the negative simply because the tribunal had found that a fundamental part of the substantive charge against the claimant had been made good or because it had concluded that her compensation should be reduced by a third, given her contributory conduct, or because it had refused to order reinstatement. These were all relevant considerations but were not necessarily determinative and we would not have allowed the appeal simply on those bases. In particular, we observe that stating the bare facts of a case can seem to suggest a particular answer, but the assessment of practicability for the purpose of a re-engagement order requires a far more nuanced consideration of the position; something that an employment tribunal is very much best placed to undertake. In this case the assessment undoubtedly included the claimant's long experience, her past good record and professional commitment; all matters that permissibly weighed with the tribunal. We equally do not say that the tribunal was wrong to have regard to evidence of references from other employees: we can see why an employment tribunal might not consider such evidence to be relevant, and we do not consider these were given great weight in the present case, but it is all a matter of assessment for the tribunal. “42. What we consider the tribunal did have to do was to consider, as at that point in time, whether the trust had made good that which it said made it impracticable or unjust to order re-engagement; that it could no longer have trust and confidence in the claimant. Given the tribunal had found that the claimant had committed the act of misconduct in question, that might not seem to have been an obviously irrational position, but, as Mr Bourne accepted in oral argument, it was not the only question. The tribunal also needed to consider whether the trust had made good its case that trust and confidence could not be repaired, whether its belief in her dishonesty was such that a reengagement order was unlikely to be carried into effect with success. The tribunal was thus entitled to scrutinise whether the trust's stated belief was genuinely and rationally held, tested against the other factors the tribunal considered relevant. It was, however, still a question to be tested from the perspective of the trust, not that of another employer, still less that of the tribunal: was it practicable to order this employer to reengage this claimant? And, unfortunately, we do not feel able to conclude this was the approach adopted by the tribunal. We consider that paras 48– 49, in particular, set out the conclusions reached by the tribunal itself, standing in the shoes of the employer, testing the question of practicability from the tribunal's perspective rather than asking what was practicable as between these parties, the parties to the re-engagement order it was considering making. That being so, we consider we are bound to allow this appeal and set aside the order.”

44. I consider that that approach is the one that employment tribunals should adopt in considering whether it is practicable to order re-engagement in cases where an employer asserts that the conduct of an employee was such as to have led to a breakdown in trust and confidence between the employer and employee. The question is whether the employer had a genuine, and rational, belief that the employee had engaged in conduct which had broken the relationship of trust and confidence between the employer and the employee.

[21]So, as highlighted by the last sentence, the question is whether the employer had a genuine and rational belief that the employee had engaged in conduct which had broken the relationship of trust and confidence between the employer and the employee.

[22]The court continued in paragraph 45: … similar principles apply to the consideration of whether it is practicable to order re-engagement in cases where an employer has a genuine and rational belief that the employee lacks the ability to perform the required role if re-engaged. The employer will need to establish that it genuinely believes that, if re-engaged, the employee would not be able to perform the role to the requisite standards and that that belief is based on rational grounds. Mere assertion by an employer that it does not believe that the employee would, if re-engaged, be able to meet the demands of the role will be insufficient. But if the employer is able to establish that it genuinely and rationally had such a belief, that will be relevant to, and probably determinative of, the question of whether it is practicable for an employer to comply with an order for re-engagement

[23]And then, in 46: Similarly, an employee may have engaged in conduct which did not, of itself, cause or contribute to dismissal, but which an employer may genuinely and rationally believe means that it can no longer rely upon the integrity of the employee and is unable to have trust or confidence in the employee in future if he were to be re-engaged. … (if the conduct had caused or contributed to the dismissal, section 116(3)(c) of the Act requires the employment tribunal to consider whether it would be just to order re-engagement). Again, the tribunal will have to test whether the employer genuinely believes that the employee cannot be trusted to work for the employer in future and whether there is a rational foundation for that belief. It would not be appropriate to seek to restrict the type of conduct capable of leading to such a conclusion to a category defined, or described, as extreme cases. Rather, the nature of the conduct may well be a factor that is relevant to the assessment of whether the belief is genuinely held, or whether there is a rational basis for the belief. If, for example, the conduct was insignificant or involved minor misconduct, or occurred a long time ago, that may be a factor pointing to a conclusion that the belief that the employer cannot trust the employee to work for him is either not a genuine reason for objecting to reengagement or is a belief that has no rational basis.

[24]Thus the tribunal does not simply take the employer at its word (or at the word of a senior member of staff) when there is an assertion that the employee’s conduct (whether or not it was conduct which led to the dismissal) is such that it can no longer rely on the integrity of the employee. The genuineness and rationality of the belief must be analysed.

[25]The Court of Appeal went on in the subsequent paragraphs to comment on how the employment tribunal had been wrong in that case and the Employment Appeal Tribunal had been correct in the approach it had taken. In particular, it was made clear by the Court of Appeal that the employment tribunal must not substitute its own view for whether the employee could be trusted not do the job (to the required standard). Instead it must decide whether the employer does have a genuine and rational belief about the employee’s lack of honesty and/or lack of capability. It is that belief that should be considered when deciding whether re-instatement or reengagement is not practicable.

[26]The fact that the tribunal has decided that the dismissal was unfair does not prevent the respondent from asserting that it still has a genuine and rational belief that the employee did in fact commit the misconduct in question and that that belief means that it is not practicable for him to resume employment See Wood Group Heavy Industrial Turbines Limited v Crossan [1998] I.R.L.R. 689.

[27]The employee’s conduct during the litigation including the types of things said in written witness statements or oral evidence might potentially be taken into account as meaning that it is not practicable for the claimant to resume employment. However, given the fact that the unfair dismissal complaint has succeeded, the mere fact alone that the employee has expressed disagreement with the decision to dismiss him, or said that he has been treated unfairly, or that his treatment was inconsistent with the treatment for other employees, does not mean that it is not practicable for him to be reemployed. The power to award this remedy would be meaningless if it could never be awarded if the employee has criticised the employer for the dismissal.

[28]Any risks to the respondent’s business are obviously important factors .

[29]In terms of contributory conduct that is an issue which must always be considered. As just mentioned, the employer’s belief about the employee’s actions might be relevant to the question of practicability. In any event, apart from considering the employee’s conduct (or perceived conduct) at the practicability stage, as per sections 116(1)(c) and 116(3)(c) ERA, the tribunal must consider whether it would be just to order reemployment in light of the decisions the tribunal has made about the Claimant’s contributory conduct. The fact that contributory conduct has to be taken into account does not prevent a tribunal from making a re-employment order, if the circumstances warrant it, even if there has been a large amount of contributory conduct. Evidence and Findings of Fact

[30]In considering our decision we have taken into account all of the findings set out in out liability decision and reasons. It is not necessary for us to repeat extensively what we have already said there.

[31]Based on the additional evidence that we heard on the issue of reemployment, after the liability decision and reasons were given orally, our additional findings of fact are as follows.

[32]We heard witness evidence from Abbie Goldbold. This was the first time she had given evidence in the case (though she was referred to in the evidence of others, and in the hearing bundle). Her job title is “Head of People Operations – Citygate” and she is a senior HR professional employed by the Respondent. We also heard further evidence from Mr Joshi and Mr Poole. We accept that each of them gave truthful accounts of the facts and opinions stated in their evidence, and that were they mentioned that they “did not know” the answer to a particular question, that was a truthful answer.

[33]The Claimant’s own post was filled in 2022 by a permanent employee. It was temporarily covered for a few weeks from a colleague from another branch (Isabel), and then it was filled permanently, and Isabel retained her own post at the other branch.

[34]Each of the 5 sites for which Mr Joshi was responsible each had/have an administrator role, on site, with similar duties to those of the Claimant. Each of those 5 roles are filled by permanent employees.

[35]The Head Office administrator team (on which the Claimant had worked some years ago) has around 10 to 16 posts. All of those posts are filled by permanent employees (not agency workers or fixed term contract employees) most of whom have been employed for some years.

[36]In short, there are no vacancies at either head office or any of the 5 sites for which Mr Joshi was responsible (including Colindale, where the Claimant was based in the years immediately prior to dismissal), or at Head Office (in Ruislip).

[37]A different part of the group had a vacancy (at a Volkswagen dealership in Brentford). Ms Godbold was unsure as to which precise qualifications were needed (though she was sure that there were some) and whether the Claimant met the qualification requirements. However, the Claimant did not wish to be considered for that.

[38]On the Claimant’s case, as discussed in her Particulars of Complaint [Bundle 20] and further correspondence to the Tribunal (for example, [Bundle 77] and [Bundle 85]) her working relationship with Mr Joshi was a poor one. We accept the submission made on her behalf that her opinion on that historic situation would not – in itself – prevent a successful future employment relationship between her and the Respondent, given that Mr Joshi has since moved on.

[39]The Claimant also made allegations of harassment related to sex and discrimination because of sex, which all failed. These were directed at the conduct of Mr Joshi (give or take the fact that the dismissal was alleged to be a contravention of EQA and that, while Mr Joshi was the decision-maker for the initial decision, the appeal was heard – and rejected – by Mr Poole).

[40]Mr Poole expressed the opinion that, because of the unsuccessful Equality Act 2010 (“EQA”) complaints, he might find it difficult to trust the Claimant in future. He said this was on the basis that the Claimant had made allegations against a trusted employee of the business (Mr Joshi) and that the Tribunal had decided that these claims should all fail. He stopped short of expressing the opinion that the allegations were malicious, but said that he thought that they had been made to “gain favour” with the Tribunal and the Tribunal’s liability decision meant that the Tribunal had ruled that there was “no substance” to the claim.

[41]The Tribunal asked Mr Poole whether, having now heard the evidence presented at this final hearing, including about discrepancies between [Bundle 348] and [Bundle 439], and the Claimant’s explanation that she had in fact often been in the building by 10am, and working elsewhere (on ground floor) prior to her first arrival at her desk (in her first floor office), he now accepted that account. He said that he did not. Analysis and Conclusions

[42]The Claimant’s primary request was for reinstatement. Failing that, she sought re-engagement, and she was willing to work at either Colindale or Head Office, on the basis of working the same hours as before (Monday to Friday, 10am to 6pm, with 30 minute unpaid lunchbreak).

[43]She was potentially willing to undertake any administrative job for which she was suitable.

[44]Head Office, she estimated would be a journey of approximately 1 hour by bus in each direction. Her evidence in the liability phase of the hearing was that she travelled to Colindale by walking each day, and the journey was a 55 minute walk.

[45]It was the Claimant’s oral evidence in cross-examination that she believed some of the occasions on which she was accused of being late, she was actually working. In response to why she did not contemporaneously reply to Mr Joshi’s emails accusing her of being late, she said that when she got to her desk in the morning, she wanted to focus on her work, and that she thought there was no point replying to Mr Joshi, because he would not believe her, and the argument would distract her from her work and leave her unable to focus.

[46]When she was asked (by the panel) why, in that case, she did not wait until the end of the day and send an email refuting the accusation of lateness, she said that – whether she sent the reply first thing in the morning, on seeing the email, or whether she sent it last thing at night, before going home – it would make no difference, and she just wanted to focus on her work rather than engage with Mr Joshi about (alleged) lateness.

[47]In answering panel questions, after cross-examination had finished, she was asked why – if the truth of the matter was that she had been downstairs working, and if she thought she would be disbelieved – she could not simply have replied to the emails (including those which included what purported to be time-stamped images from CCTV showing her empty office) to say “if you check the CCTV, you will see that I was on time, and working downstairs”. Her answer was that she did not think to do so.

[48]The panel was not impressed by Mr Poole’s suggestion that the fact that a former employee has alleged breaches of EQA (in the main against someone who is no longer employed by the Respondent) would be a sound basis to lack trust in the employee. The underlying facts of the matter were not really in dispute. The Claimant received many communications from Mr Joshi about lateness, and ultimately was given a formal warning, then a final warning, and then was called to a disciplinary hearing by him. He was, on the Respondent’s case (which we accepted) the decision-maker, on the Respondent’s behalf, who decided that the Claimant would be dismissed. We decided that she had not proven that her performance was placed under extra scrutiny than other people’s (or, at least, those in comparable circumstances). We found that the burden of proof did not shift in relation to Mr Joshi’s conduct in taking action against the Claimant for lateness (including the monitoring of her alleged arrival times) or in relation to the dismissal. We made no finding that the Claimant herself did not genuinely believe that there was a connection between the way she was treated and the fact that she is a woman.

[49]There are sound public policy reasons why victimisation (as defined by section 27 EQA) is forbidden. Employers should generally have policies which encourage the reporting (internally) of alleged discrimination, and those policies should generally make clear that a person who makes a complaint or allegation, which is not upheld, will not be penalised for that (other than where the employee has deliberately given false evidence or information, for example).

[50]The unsuccessful EQA complaints, in themselves, would not have prevented us from making an order for re-employment had we otherwise thought that such an order was appropriate.

[51]However, no order for either reinstatement or re-engagement is appropriate.

[52]If we ordered that the Claimant be reinstated, then, to comply with the order, the Respondent would be required to dismiss the current postholder or redeploy them. We are not satisfied that there are alternative vacancies elsewhere to which the postholder could readily be redeployed. On that latter point, we take into account that there was not much evidence about the Brentford post, and no evidence about how far the existing postholder would need to travel if hypothetically redeployed to Brentford (which is a significant distance across London from the Colindale site).

[53]If we ordered that the Claimant be re-engaged, to Head Office, then, to comply with the order, the Respondent would be required to dismiss a current employee or redeploy them. As mentioned in the previous paragraph, we are not satisfied that there are alternative vacancies elsewhere to which any Head Office employee could readily be redeployed (albeit there is no evidence about whether any of them might prefer Brentford).

[54]Even if there had been vacancies, our findings of fact (as per the breach of contract for notice pay issue) were that the Claimant was often very late. There were problems with the Respondent’s evidence about (alleged) arrival times on the specific dates presented as evidence in the dismissal hearing [Bundle 348] such that that document (and/or [Bundle 439]) would not have enabled us to make findings, on balance of probabilities, about what her arrival time was on each working day from 8 December 2021 to 13 January 2022. However, the weight of the evidence over the years was that the Claimant was, in fact, often late, and when pushed, did not deny being late (and when not pushed, simply ignored the issue, by declining to phone in to say she was going to be late, and by failing to even open, let alone reply to, emails sent to her accusing her of being late.

[55]Given that Mr Poole conducted the appeal hearing, in which the Claimant did not deny being late, and read the correspondence sent to him as part of the appeal in which she admitted being late, it is not unreasonable that he did not believe her account, presented for the first time in the hearing, that she had actually (usually) been on time, and downstairs working.

[56]The fact that the Claimant was so often late to a workplace when she could walk to work cannot be ignored when considering whether it would be practicable for the employment relationship to be resumed with her working at a site further away, and to which she would need to travel by public transport (by bus, we were told).

[57]While it is not – of course – impossible that the Claimant’s timekeeping would improve considerably if she were re-engaged, given that she now knows that the Respondent is prepared to dismiss her if it did not, there is a very significant chance that it would not given how longstanding the issue was, and how many communications had been sent to her about it. (A matter which will potentially be thoroughly explored when we hear submissions about, and make decisions about, Polkey issues).

[58]Therefore, we are not persuaded that the contract would be successfully performed even if we did order re-engagement, and that is an additional reason that we decline to do so.

[59]There will be a contributory fault reduction (though the specific percentage is to be addressed at the remedy hearing). This does not prevent a reemployment order, though it is a relevant factor. The contributory fault reduction is likely to be either 25% or 50% or 75% or 100%. Our provisional view is that it is more likely to be within the higher end of that range than the lower. It would not be just to order re-employment on these particular facts, and that is a further reason that we decline to do so. LIABILITY JUDGMENT(1) All the complaints of harassment related to sex and of direct discrimination because of sex fail and are dismissed.

(2) As a result of paragraph 1, all claims against Mr Jairaj Joshi have been dismissed. In the remainder of this judgment, “the Respondent” refers to Citygate Automotive Ltd (only).

(3) The claims in relation to alleged bonus entitlement fail and are dismissed: (i) Any complaint of unauthorised deduction for (alleged) underpayment of bonus entitlement was presented out of time, and the Tribunal does not have jurisdiction. (ii) Any complaint of breach of contract for bonus entitlement fails on the substantive merits.

(4) The claims in relation to payment in lieu of holiday entitlement fail and are dismissed, both in relation to statutory entitlement and contractual entitlement.

(5) The Respondent breached the Claimant’s contract by dismissing her without notice, and without a payment in lieu of her full notice entitlement. Damages for this breach of contract will be assessed. Case No: 3306595/2022

(6) The Claimant was unfairly dismissed by the Respondent. (i) A Polkey reduction will be made to the compensatory award. (ii) A reduction of (25%, 50%, 75% or 100%) to the basic award is likely to be made because of the Claimant’s conduct before the dismissal (Section 122(2) of the Employment Rights Act 1996) (iii) A reduction of (25%, 50%, 75% or 100%) to the basic award is likely to be made on the basis that the dismissal was caused or contributed to by actions of the Claimant (Section 123(6) of the Employment Rights Act 1996)

(7) Assessment of compensation, including decisions about Polkey and about Sections 122(2) and 123(6) ERA, will be made in due course, following promulgation of our reserved decision about reinstatement/re-engagement.

(8) There will be a hearing on Tuesday 19 March 2024 to deal with outstanding remedy issues, and any costs/preparation time applications.

[70]Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.

[71]Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was and shall set out why reconsideration of the original decision is necessary.

[72]Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked(including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary Page 1 of 6 in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. 2. The Tribunal has discretion to reconsider a judgment if it considers it in the interests of justice to do so. Rule 72(1) requires the judge to dismiss the application if the judge decides that there is no reasonable prospect of the original decision being varied or revoked. Otherwise, the application is dealt with under the remainder of Rule 72. 3. In deciding whether or not to reconsider the judgment, the tribunal has a broad discretion, which must be exercised judicially, having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation. 4. The reconsideration rules and procedure are not intended to provide an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way. They are not intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed (with or without different emphasis). Nor do they provide an opportunity to seek to present new evidence that could have been presented prior to judgment. 5. Under the current version of the rules, there is a single ground for reconsideration — namely, “where it is necessary in the interests of justice”. This contrasts with the position under the 2004 rules, which listed specific grounds upon which a tribunal could review a judgment. 6. When deciding what is “necessary in the interests of justice”, it is important to have regard to the overriding objective to deal with cases fairly and justly, which includes: ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay, so far as compatible with proper consideration of the issues; and saving expense. 7. In Outasight VB Ltd v Brown 2015 ICR D11, the EAT explained that the revision to the rules had not been intended to make it more easy or more difficult to succeed in a reconsideration application. In the new version of the rules, it had not been necessary to repeat the other specific grounds for an application because an application relying on any of those other arguments can still be made in reliance on the “interests of justice” ground. 8. The situation remains, as it had been prior to the 2013 rules, that it is not necessary for the applicant to go as far as demonstrating that there were exceptional circumstances justifying reconsideration. There does, however, have to be a good enough justification to overcome the fact that, when issued, judgments are intended to be final (subject to appeal) and that there is therefore a significant difference between asking for a particular matter to be taken into account before judgment (even very late in the day) and after judgment. As was stated in Ebury Partners Uk Limited v Mr M Acton Davis Neutral Citation Number:

[2023] EAT 40

Page 2 of 6 The employment tribunal can therefore only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution. The Claimant’s application 9. The Claimant, via her friend and representative Mr Naresh Gathani, submitted an email, within the relevant time limit, with an attachment, seeking reconsideration. 10. It itemises “Request 1” to “Request 11” and I will address each of those. 11. Request 1 seeks a change in the liability decisions for the of the Equality Act 2010 complaints.

The Facts

[73]As alluded to in the letter, and in Mr Poole’s evidence to the Tribunal, he had investigated the suggestions the claimant had made that Mr Joshi had bullied her and was potentially motivated to treat her badly as a result of finance issues which she had raised. Mr Poole investigated those issues. He decided that there had not been any wrongdoing by Mr Joshi's part either in connection to the and alleged wrongdoing itself or in the decisions to implement a disciplinary process or the eventual dismissal.

[74]After the appeal outcome had been sent to the claimant, the claimant obtained a letter from her GP. I was dated 9 February 2022 and appears [Bundle 405]. That letter refers to panic attacks and due to work-related stress. The letter does not say that those panic attacks had caused the claimant to be late. The letter says - and we accept that it is accurate - that, in fact, the claimant had not had any absences due to ill health.

[75]Furthermore, the respondent's position, which we accept, was that her overall work performance in general had been satisfactory. In saying that, we do not ignore the fact that, on 11 February 2021, Mr Joshi had written to the claimant and her colleague Isabel and make some criticisms of their performance. In particular, he had reminded them that one of the conditions of the bonus entitlement was to ensure that there was no out cash outstanding for more than three days; the letter made the assertion that that in fact had not been happening.

[76]The Claimant’s contractual holiday entitlement was clause 7 of the contract [Bundle 120]. The entitlement is 20 days plus bank holidays and the leave year is to run from 1 January to 31 December. For part years, when somebody ends their employment prior to 31 December, entitlement would be calculated would be on the basis of working out how many completed months (from 1 January onwards) there had been in that part year, and allowing 1.67 days holiday entitlement for each completed month.

[77]Clause 7 is supplemented by the handbook and the relevant section of the handbook is pages 134-135 of this bundle. The last paragraph of that section states: The Company’s holiday year runs from the 1st of January to 31st December. Holiday entitlement cannot be carried over to the next year and you will not receive payment in lieu of holiday not taken, unless in circumstances approved by senior management at their absolute discretion. Holidays are accrued on the completion of working a full month.

[78]The complete bar on any carry over (unless approved) was loosened for carry over from 2021 to 2022 (for all employees including the Claimant). Due to Covid, an 20 of 49 automatic carry over (without specific and individual authorisation being required) up to a maximum of 10 days was permitted. Any excess unused leave (greater than 10 days) was lost as of 31 December 2021 unless the employee had had it approved by senior management. The Law Equality Act 2010 (“EQA”)

The Law

[79]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[80]It is a two stage approach.80.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.

80.2 If the claimant succeeds at the first stage then that means the burden of proof is shifted to the respondent and the claim is to be upheld unless the respondent proves the contravention did not occur.

[81]In Efobi v Royal Mail Neutral citation:

[2021] UKSC 33

, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong Neutral citation:

[2005] EWCA Civ 142

and Madarassy v Nomura International Neutral citation:

[2007] EWCA Civ 33

. 21 of 49

[82]The burden of proof does not shift simply because, for example, the claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) and/or that there was unwanted conduct and/or that there was a protected act. Those things only indicate the possibility of discrimination or harassment. They are not sufficient in themselves to shift the burden of proof; something more is needed.

[83]It does not necessarily have to be a great deal more and it could in an appropriate case be a non-response from a respondent or an evasive or untruthful answer from an important witness.

[84]As per Essex County Council v Jarrett

[2015] UKEAT 0045/15

/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof is shifted in relation to each one. That does not mean that we must ignore the rest of the evidence when considering one particular allegation. It just means that we assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. Time Limits for EQA complaints

[85]In EQA, time limits are covered in s123, which states (in part): (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it Definition of Direct Discrimination – section 13 EQA

[86]Direct discrimination is defined in s.13 EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 22 of 49

[87]There are two questions: whether the respondent has treated the claimant less favourably than it treated others (“the less favourable treatment question”) and whether the respondent has done so because of the protected characteristic (“the reason why question”).

[88]For the less favourable treatment question, the comparison between the treatment of the claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. However, the less favourable treatment question and the reason why question are intertwined. Sometimes an approach can be taken where the Tribunal deals with the reason why question first. If the Tribunal decides that the protected characteristic was not the reason, even if part, for the treatment complained of then it will necessarily follow that person whose circumstances are not materially different would have been treated the same and that might mean that in those circumstances there is no need to construct the hypothetical comparator.

[89]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the respondent’s various acts, omissions and decisions. Harassment – section 26 EQA

[90]Harassment is defined in s.26 of the Act. (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. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[91]It needs to be established on the balance of probabilities that the claimant has been subjected to unwanted conduct which had the prohibited purpose or effect. However, to succeed in a claim of harassment, it is not sufficient for a claimant to 23 of 49 prove that the conduct was unwanted or that it had the purpose or effect described in s.26(1)(b). The conduct also has to be related to the particular characteristic.

[92]Section 136 EQA applies and so the claimant does not necessarily need to prove on the balance of probabilities that the conduct was related to the protected characteristic. If the tribunal finds facts from which it could conclude that the conduct was related to the protected characteristic then the burden of proof shifts.

[93]The use of the word “or” in s26(b) (twice) is important.

[94]“Purpose” and “effect” are two different things, and must be considered separately. Where it was the wrongdoer’s “purpose” to do the things listed in s26(b), then the complaint can succeed even if the conduct did not successfully have that effect. Correspondingly, where the conduct does have the effect described in s26(b), then the complaint can succeed even if the Respondent (or the person whose conduct it was) did not have the intention of causing that effect.

[95]In Land Registry v Grant Neutral citation

[2011] EWCA Civ 769

, the Court of Appel said that when considering the effect of the unwanted conduct, and when analysing s.26(4), it is important not to cheapen the words used in s.26(1). Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the claimant to a “humiliating environment” when he heard of it some months later is a distortion of language which brings discrimination law into disrepute.

[96]When assessing the effects of any one incident of several alleged acts of harassment then it is not sufficient really to consider each instant by itself. We obviously must consider each incident by itself, but, in addition, we must stand back and look at the impact of the alleged incidents as a whole.

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

(2) A reason falls within this subsection if it— 24 of 49 (a) relates to the capability or qualiﬁcations of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. … (4) Where the employer has fulﬁlled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufﬁcient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[98]The respondent has the burden of proving, on the balance of probabilities, that the claimant was dismissed for the reason relied upon. The reason in this sense is the set of facts known to the person taking the decision on behalf of the employer (or the set of beliefs held by that person) which cause the employer to dismiss the employee. See the court of appeal decision in Abernethy v Mott [1974] I.C.R. 323.

[99]Furthermore, the employer must also satisfy us that this reason falls within one of the definitions in either section 98(2) or section 98(1)(b).

[100]In this case, the Respondent alleges that the reason was “conduct” as defined by section 98(2)(b) ERA.

[101]Provided the respondent does persuade us of these things, then the dismissal is potentially fair. That means it is then necessary to consider section 98(4) ERA. In doing so, we take into account the respondent’s size and administrative resources and we decide whether the respondent acted reasonably or unreasonably in treating conduct as a sufficient reason for dismissal.

[102]In considering the question of reasonableness, we must analyse whether the respondent had a reasonable basis to believe that the claimant did do the acts that the Respondent’s decision maker has found them to have done.

[103]We also consider whether or not the respondent carried out a reasonable process prior to making its decisions.

[104]In terms of sanction of dismissal itself we must consider whether this particular respondent’s decision to dismiss this particular claimant fell within the band of 25 of 49 reasonable responses in all the circumstances. The band of reasonable responses test applies not only to the decision to dismiss but also to the procedure by which that decision was reached. The band of reasonable responses is wide, but it is not infinite.

[105]If we do decide that there has been any unfairness at the original stage at which the dismissal decision was made, then we might potentially decide that that had been cured as a result of what had happened during the appeal process. That depends on all the circumstances of the case; it depends upon the nature of the unfairness of the first stage and it depends on the nature of what happens at the second stage, at the appeal stage and it depends on the equity and substantial merits of the case. We take into account the guidance in Taylor v OCS Group

[2006] IRLR 61

[106]It is not the role of the tribunal to assess the evidence and to decide whether the claimant should or should not have been dismissed. It is not our role to substitute our decisions for the decisions made by the respondent.

[107]The ACAS Code of Practice on Disciplinary and Grievance Procedures must be taken into account by the Employment Tribunal if it is relevant to a question arising during the proceedings (see section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992). The following paragraphs of the Code are particularly relevant, though we have considered the entire Code: 5 It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. 6 In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. 9 If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.19. Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.

20. If an employee's first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee's actions have had, or are liable to have, a serious or harmful impact on the organisation. 26 of 49

21. A first or final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority. 27 The appeal should be dealt with impartially and, wherever possible, by a manager who has not previously been involved in the case.

[108]A final written warning (or any written warning) is something that can potentially be taken into account by a reasonable employer when deciding whether to dismiss.

[109]In Wincanton Group plc v Stone

[2013] IRLR 178

, at para 37 Langstaff P gave the following summary of the law on warnings in misconduct cases: We can summarise our view of the law as it stands, for the benefit of Tribunals who may later have to consider the relevance of an earlier warning. A Tribunal must always begin by remembering that it is considering a question of dismissal to which section 98, and in particular section 98(4), applies. Thus the focus, as we have indicated, is upon the reasonableness or otherwise of the employer's act in treating conduct as a reason for the dismissal. If a Tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid. If it is so satisfied, the earlier warning will not be valid and cannot and should not be relied upon subsequently. Where the earlier warning is valid, then:(1) The Tribunal should take into account the fact of that warning.

(2) A Tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a Tribunal is entitled to give that such weight as it sees appropriate.

(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the Tribunal is satisfied as to the invalidity of the warning.

(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employer, and therefore Tribunal should be alert to give proper value to all those matters.

(5) Nor is it wrong for a Tribunal to take account of the employers' treatment of similar matters relating to others in the employer's employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of 27 of 49 circumstances of the sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration.

(6) A Tribunal must always remember that it is the employer's act that is to be considered in the light of section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur.

[110]In Bandara v BBC 2016 WL 06639476, the EAT confirmed (having considered both Wincanton and also the Court of Appeal’s review in Davies v Sandwell Metropolitan Borough Council

[2013] IRLR 374

) that a tribunal assessing an unfair dismissal claim can, in an appropriate case, decide that the sanction of final written warning for a prior incident was a manifestly inappropriate sanction. A tribunal should only take that step if it there is something that is drawn to the tribunal’s attention which enables it to conclude that the sanction plainly ought not to have been imposed, and this requires more than simply deciding that the sanction of final written warning had been outside the band of reasonable responses.

[111]Subject to the comments above, where a final written warning is live, then the issue of whether the decision to dismiss was fair or unfair requires consideration (as per Section 98(4)) of whether, in the particular case, it was reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant. Compensation for Unfair Dismissal

[112]Section 123(1) provides tribunals with a broad discretion to award such amount as is considered just and equitable in all the circumstances, having regard to the loss sustained by the claimant because of the unfair dismissal.

[113]As part of the assessment, the tribunal might decide that it just and equitable to make a reduction following the guidance of the House of Lords in Polkey v AE Dayton Services

[1987] IRLR 503

. For example, the tribunal might decide that, if the unfair dismissal had not occurred, the employer could or would have dismissed fairly; if so, the tribunal might decide that it is just and equitable to take that into account when deciding what was the claimant’s loss flowing from the unfair dismissal.

[114]Guidance on the correct approach was provided in Software 2000 Ltd v Andrews

[2007] IRLR 568

. It is for the employer to demonstrate (based on the evidence) that the employee would or might have ceased to be employed in any event had fair procedures been followed and/or would not have continued in employment indefinitely. When making the assessment, the Tribunal takes into account all of the evidence, including from the Claimant.

[115]In making such an assessment the tribunal, there are a broad range of possible approaches to the exercise. 28 of 49115.1 In some cases, it might be just and equitable to restrict compensatory loss to a specific period of time, because the tribunal has concluded that that was the period of time after which, following a fair process, a fair dismissal (or some other fair termination) would have inevitably taken place.

115.2 In other cases, the tribunal might decide to reduce compensation on a percentage basis, to reflect the percentage chance that there would have been a dismissal had a fair process been followed (and acknowledging that a fair process might have led to an outcome other than termination).

115.3 If a tribunal thinks that it is just and equitable to do so, then it might combine both of these: eg award 100% loss for a certain period of time, followed by a percentage of the losses after the end of that period.

115.4 There is no one single “one size fits all” method of carrying out the task. The tribunal must act rationally and judicially, but its approach will always need to be tailored specifically to the circumstances of the case in front of it. When performing the exercise, the tribunal must also bear in mind that when asking itself questions of the type “what are the chances that the claimant have been dismissed if the process had been fair?”, it is not asking itself “would a hypothetical reasonable employer have dismissed”? It must instead analyse what this particular respondent would have done (including what are the chances of this particular respondent deciding to dismiss) had the unfair dismissal not taken place, and had the respondent acted fairly and reasonably instead. Contributory Fault

[116]S122(2) of the Employment Rights Act 1996 (“ERA”) states Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

[117]In relation to compensatory award, S123(6) ERA states Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[118]In Steen v ASP Packaging Ltd, the EAT, set out the correct approach to S122(2):118.1 identify the conduct which is said to give rise to possible contributory fault 29 of 49

118.2 decide whether that conduct is culpable or blameworthy, and

118.3 decide whether it is just and equitable to reduce the amount of the basic award to any extent.

[119]For S123(6), in Hollier v Plysu Ltd

1983 IRLR 260

, the EAT suggested that the contribution should be assessed broadly and should generally fall within the following categories: employee wholly to blame (100 per cent reduction); largely to blame (75 per cent); employer and employee equally to blame (50 per cent); slightly to blame (25 per cent). This suggestion is guidance, and does not replace the words of the statute.

[120]The Tribunal is not obliged to apply the same percentage reduction to both basic award and compensatory award, but that will usually be the case, unless there is a good reason not to do so.

[121]In Granchester Construction Ltd v Attrill

UKEAT/0327/12

:121.1 In paragraph 26, the EAT notes: “we accept that the Tribunal's approach in looking at a reasonable employer rather than at the actual employer was in error and was likely to understate the extent of the deduction that fell to be made.”

121.2 In paragraph 27, when considering the approach to adjustments for contributory fault and/or Polkey, the EAT suggested a tribunal should: “consider what facts and matters the employer would probably have accepted for itself, reasonably, having carried out the investigation that would have been carried out had a proper procedure been followed.”

[122]More generally, Attrill considers the approach to making adjustments when deductions to reflect both contributory fault and Polkey might be appropriate. If a tribunal provisionally decides on a percentage reduction to reflect contributory fault, then it is not necessarily an error for the tribunal to decide that applying that full percentage reduction to the compensatory award might not be just and equitable if a Polkey reduction (which takes account of the same conduct by the employee) is also being made. In other words, the tribunal might decide to make a smaller reduction for contributory fault than it might otherwise have made. However, in Attrill, the EAT noted that if the logic just described would not mean that the smaller reduction should be applied to both the basic award and the compensatory award if the Polkey reduction was applied only to the latter. Uplift

[123]Section 207A(2) of that Trade Union and Labour Relations (Consolidation) Act 1992 Act provides that: 30 of 49 If, in any proceedings to which this section applies, it appears to the employment tribunal that(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

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

(c) the failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25 per cent.’

[124]The complaints presented here are all complaints to which that section applies. Time Limits for Unauthorised deduction claims.

[125]Insofar as it is relevant, section 23 ERA states: (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, … (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments … … the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) … section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (2). (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

[126]When a claimant argues that it was not reasonably practicable to present the claim within the time limit, there are questions of fact for the tribunal to decide. In other words, whether it was, in fact, reasonably practicable or not. The onus of proving it was not is on the claimant. When doing so, the phrase “not reasonably practicable” should be given a liberal interpretation in favour of the Claimant.

[127]If the tribunal is satisfied that it was not reasonably practicable to present the claim within the time limit, then it is necessary to consider whether the period between the expiry of the time limit and the eventual presentation of the claim was reasonable in the circumstances. This does not necessarily mean that the Claimant has to act as fast as would be reasonably practicable. 31 of 49 Holiday Entitlement and Pay in lieu of it

[128]The Working Time Regulations 1998 (“WTR”) provide employees (and other workers) with a minimum statutory entitlement to paid time off.

[129]Regulation 14 WTR sets out the employee’s entitlement for a payment in lieu on termination. The formula is: (A x B) - C where– A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A; B is the proportion of the worker's leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date.

[130]The combined effect of Regulations 13(1) and 13A WTR is that an employee is entitled to 5.6 weeks per year as paid time off (which includes any such paid time off on public holidays) subject to a maximum of 28 days per year.

[131]Paragraphs 9 to 13 of Regulation 13 WTR specify: (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but–(a) subject to the exception in paragraphs (10) and (11), it may only be taken in the leave year in respect of which it is due, and

(b) it may not be replaced by a payment in lieu except where the worker's employment is terminated. (10) Where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society), the worker shall be entitled to carry forward such untaken leave as provided for in paragraph (11). (11) Leave to which paragraph (10) applies may be carried forward and taken in the two leave years immediately following the leave year in respect of which it was due. (12) An employer may only require a worker not to take leave to which paragraph (10) applies on particular days as provided for in regulation 15(2) where the employer has good reason to do so. (13) For the purpose of this regulation "coronavirus" means severe acute respiratory syndrome corona-virus 2 (SARS-CoV-2).

[132]So, notably, as per Reg 13(9)(b), if an employee does not use their entitlement to leave, then the employer does not satisfy their obligation under WTR by making a payment to the employee instead. 32 of 49

[133]That being said, if the employee does not use their entitlement in the leave year in question then, as per Regulation 13(9), they lose that entitlement. That is, they do not have the right to insist upon carrying it over and using it in the next year. (There are potentially exceptions to that literal interpretation where there is long term sickness or where the employer prevents the leave being taken, but those exceptions are not relevant in this case). As Regulation 13(9) states, an exception is where the employee was unable to take the leave because of the pandemic. This amendment to Regulation 13(9), as well as all of paragraphs 10 to 13, came into effect on 26 March 2020.

[134]As per Regulation 17 WTR, while WTR sets out minimum entitlements for the matters covered, if an employee’s contract provides a right which is more beneficial to the employee, then they may enforce that right instead. In other words, for annual leave (for example) the employee does not get double recovery. They cannot have the contractual leave, plus the WTR minimum on top. However, a claimant may invite the tribunal to calculate each of the WTR right and the contractual right. While any compensation or damages will not give both things, the claimant can have whichever one is more favourable to the claimant.

[135]In terms of contractual entitlement, it is not the case that tribunals should assume that there is a right paid time off, or a right to carry over holiday entitlement from one year to the next, or a right to be paid in lieu of unused holiday entitlement. Whether any of these rights exist in a particular contract between a particular employee and particular employer is a matter to be determined in accordance with the usual methods of contractual interpretation. The contents of a staff handbook can, in some circumstances, potentially be incorporated into the contract of an individual employee. Breach of Contract Notice Pay

[136]In terms of breach of contract and the Claimant’s notice pay argument, the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 gives the Employment Tribunal jurisdiction to consider certain complaints of breach of contract.

[137]In accordance with the ordinary principles for breach of contract claims, this jurisdiction allows the Tribunal to interpret the relevant contractual provisions and assess what the employee’s contractual entitlement was to notice pay for example as well as holiday entitlement.

[138]When a Tribunal is considering a wrongful dismissal claim (in other words a claim that the dismissal itself was in breach of contract) then the analysis is entirely different and separate to the analysis of whether the same dismissal was fair or unfair. 33 of 49

[139]Where the employer terminates the contract without good cause, or without providing the employee with sufficient notice, the Claimant might have grounds to succeed in a claim for wrongful dismissal.

[140]The amount of notice to which an employee is entitled is determined by the contract but subject to the statutory minimum. Again, in other words, if the contract allows the employee more notice than the statutory minimum then the employee is entitled to bring a claim for that period of notice but the contract cannot insist that the employee has less notice than the statute would allow, generally one week for every year up to a maximum of 12 weeks’ notice after 12 years’ employment.

[141]For the employer to prove that there has been conduct by the employee which entitles it to dismiss without notice then the conduct must be such that it must so undermine the trust and confidence which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee in employment (see Neary v Dean of Westminster

[1999] IRLR 288

). The jargon phrases “gross misconduct” and “gross negligence” are sometimes used. There is no clear dividing line between them and, in any event, the decision is whether the contract has been breached and whether the employee has acted in such a way that they are deemed to be ignoring their contractual obligations, and/or showing that they do not acknowledge that they are bound by them. Gross misconduct is often used to refer to things which an employee has done deliberately. Gross negligence, however, also includes serious failure to carry out their contractual duties even if that is because of an inability to comply with the contractual obligations.

[142]In defending itself against a claim that it is required to pay damages for failure to give notice to an employee which it dismissed, the employer is entitled to rely upon facts not known at the time. In other words, the employer is not only entitled to rely on the reasons that caused it to dismiss the employee; it is entitled to rely on any other repudiatory breach that it later discovers. (That is another difference compared to unfair dismissal.) Analysis and conclusions

[143]We will deal with the claims about bonus entitlement first. Bonus – as unauthorised deduction claim

[144]On the Claimant’s own case, the last time that she was paid £125 for bonus, rather than £250, was August 2021. Furthermore, her payslips as per the bundle show payments of £250 for each of September 2021 through to January 2022. 145. [Bundle 534] shows that pay date in August 2021 was 27 August 2021. The Claimant therefore had until 26 November 2021 to present a claim (or, strictly 34 of 49 speaking, to commence early conciliation, with a claim to follow by the date adjusted for early conciliation).

[146]Since early conciliation was not commenced until 6 April 2022, which is after the time limit had expired, there is no early conciliation extension.

[147]The claim was presented on 8 June 2022 and so was more than 7 months out of time.

[148]No suggestion has been made that the Claimant was ignorant of her rights prior to that. There had been correspondence from her challenging the bonus issue, and so she was aware at the time that she was being paid £125 not £250. She was aware of the Respondent’s stated reasons for that.

[149]The suggestion made in submissions is that the Claimant was unable to face dealing with the matter any sooner than she did. We do not accept that submission. Our decision is that there was no medical or psychological reason that the Claimant could not have presented the claim sooner.

[150]If it were necessary for us to make a specific finding about the reason that no claim was presented prior to the 26 November deadline, then our decision would be that, as per the Claimant’s email on 9 June 2021 at 14:12 (and the passage on [Bundle 262] in particular), she accepted the fact of the reduction, and had no intention of bringing a claim.

[151]However, and in any event, regardless of the Claimant’s reason(s) for not presenting the claim by 26 November 2021, it was reasonably practicable for her to do so.

[152]The claim is out of time. Bonus – as breach of contract claim

[153]Although not expressly stated in the list of issues as a breach of contract claim, during the parties’ closing submissions, the Tribunal indicated that if the unauthorised deduction from wages claim was out of time, we would still consider whether, as per our breach of contract jurisdiction, there was any entitlement to damages in relation to bonus.

[154]Our decision is that there was not. The Respondent did not breach the contract, and the Claimant has no entitlement to damages.

[155]The Monthly Performance Bonus, as per clause 5 of the Claimant contract [Bundle 119] and the document on [Bundle 658] was that, each month, the Claimant was entitled to receive a particular payment provided the conditions therein were met (and provided the Respondent had not previously withdrawn or varied the scheme). In 2010, the figure was £200 per month, and later it was £250 per month. 35 of 49 Once the month was over, and the Claimant had achieved the targets, it would have been too late, for that month, for the Respondent to try to claim that it had a discretionary right to withhold the payment.

[156]However, the document on [Bundle 658] refers to periodic review, and our decision is that the bonus entitlement was subject to the terms of the staff handbook. (See Introduction to the Claimant contract on [Bundle 118]). As stated in the handbook [Bundle 138]. BONUS AND COMMISSION SCHEMES From time to time, the Company operates bonus and/or commission schemes relating either to individual, departmental or branch performance against specified targets. Your Statement of Terms and Conditions will list if you are eligible to participate. The Company reserves the right in its absolute discretion to terminate, withdraw, amend or vary any such schemes without notice and at any time, and further reserves the right to exclude any employee from participation in any of the schemes without giving any reason. All bonus and commission schemes are subject to regular review: any subsequent changes to existing schemes or the introduction of new schemes will be explained by your manager.

[157]The Respondent was entitled to vary or withdraw the scheme. It could not remove entitlement to payments that had already accrued. However, it could reduce future entitlement. That is what it did in when, because of Covid, it applied a 50% reduction to each employee’s maximum entitlement.

[158]Furthermore, and in any event, quite apart from the fact that the Respondent had a right to unilaterally vary the bonus entitlement (and had validly exercised that right), the Claimant agreed to the variation by her email of 9 June 2021.

[159]The breach of contract claim (for alleged underpayment of bonus) therefore fails.

[160]We have noted Mr Joshi’s email of 11 February 2021 [Bundle 196]. However, the onus is on the Claimant to prove that there was any month in which she was entitled to the full £250, and the Respondent failed to pay that. His assertion in the email was that she had failed to meet one of the conditions of the bonus, namely “no cash outstanding for more than 3 days”. It is true that there was this requirement, and the Claimant has not been proven that the assertion was false. Further, she has not proven that her bonus payments were actually affected by any opinion/decision contained in that email.

[161]That applies to all of the months itemised on [Bundle 498]. Furthermore, the allegations in relation to May 2016 and earlier are out of time as they refer to alleged breaches of contract which are more than 6 years before the claim was presented. 36 of 49 Holiday - Contract

[162]The Claimant’s contractual entitlement was clause 7 of the contract [Bundle 120]. It was for 20 days per year, plus bank holidays. The leave year ran 1 January to 31 December, with entitlement for part year to be 1.67 days per completed month.

[163]The contract cross-references the handbook, with the relevant section being [Bundle 134 to 135].

[164]The combined effect of these would be, therefore, that as of 1 January 2022, the Claimant had lost any unused entitlement for 2021, other than the 10 days she was allowed to carry over because of Covid. She did have more than 10 unused days, and therefore was entitled to carry over the 10 day maximum.

[165]She was dismissed with immediate effect on 13 January 2022, and therefore had not accrued any unused contractual entitlement at all for that year, because she did not work a completed month. 166. [Bundle 532] shows that she received £988.56 for holiday pay. This was in excess of the entitlement to 10 days pay. (Basic Salary of £22,350, plus maximum bonus of £3000, would imply 10 days pay was around £975; it would be lower than that if bonus were not taken into account when working out the contractual entitlement to holiday pay).

[167]Thus the holiday pay claim fails if based on contractual entitlement. Holiday – Working Time Regulations 1998 (“WTR”)

[168]For WTR purposes, the leave year would be, as per the agreement, 1 January to 31 December.

[169]WTR does not allow carry over except where Regulation 13(10) applies (10) Where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society), the worker shall be entitled to carry forward such untaken leave as provided for in paragraph 11

[170]So this is wide enough to cover various possible Covid-related reasons that might be argued as having prevented/hindered the worker from using their entitlement.

[171]However, we are not persuaded that there was any such reason that the Claimant did not use her full entitlement to 2021 holiday.171.1 Firstly, the Claimant’s evidence was that she was not furloughed, and so being on furlough was not the reason for failing to take the full 2021 allowance. 37 of 49

171.2 Secondly, the Claimant’s evidence was that, throughout her employment, she failed to use her entitlement. Her evidence was not that either the pandemic or the employer’s refusals of any request prevented her taking her leave, but that she chose not to take it.

[172]So all of the Claimant’s 2021 WTR entitlement was lost, given that she failed to use it all by 31 December 2021, and could not carry any of it over.

[173]Thus, in accordance with WTR, the Claimant would only have a proportion based on 13/365 of her 2022 entitlement. The Respondent did not fail to pay an amount which was (at least) that, and the holiday pay claim based on WTR fails. Equality Act claims

[174]We will next describe the decisions in relation to the Equality Act claims. These are the only claims that are against both R1 and R2. All the other claims are against the employer, R2, only.

[175]We have taken all of the evidence and arguments into account, including those matters which we discuss in more detail below in relation the Notice Pay claim and Unfair Dismissal claim.

[176]The Claimant relies on the same alleged acts and omissions for both harassment and direct discrimination. If we had upheld any of the complaints, that would have been a factor which would have had some influence on our decisions in relation to unfair dismissal. Furthermore, as discussed below, we did find that the dismissal was unfair, and we have taken account of that when assessing the EQA claims.

[177]The list of issues only mentioned Mr Bell and Mr Joshi as potential actual comparators. Neither of these individuals are valid actual comparators, taking into account the provisions of section 23 EQA. Neither of them was in a similar role to the Claimant, or had similar duties or lateness. (And we do not think it necessary to make any findings about how long Mr Joshi spent on cigarette breaks, or how much work he did – by phone, etc – during those breaks, because allegedly long smoke breaks are not the same as alleged late arrival, and because the Claimant and Mr Joshi had different line managers.)

[178]However, we have taken into account the evidence that we have heard about other employees, including those mentioned in Mr Joshi’s statement, when considering whether there is any actual comparator, and, if not, whether there is any evidence that a hypothetical comparator would have been treated differently to the Claimant. 8.7.2. Subject the Claimant’s performance to scrutiny that was not applied to 38 of 49

[179]We are not persuaded that it is accurate to state that Mr Joshi or the employer subjected the Claimant’s performance to scrutiny that was not applied to others.

[180]We accept Mr Joshi’s evidence (with which the Claimant agrees) that the make up of the business was that most of the employees were male. As noted in Mr Joshi’s statement: In my role as TPS Centre Manager, my team was made up of the following: 2 Warehouse Managers (Male), 2 Warehouse Operatives (Male), 2 Business Development Managers (Male), 2 Administrators (Female), 13 Drivers (1 Female) & Bikers, 1 Sales Manager (Male), 8 Parts Sales Executives( Male)

[181]We had no evidence that would have allowed us to decide that any of these men, or any other men reporting to Mr Joshi, were actual comparators for the Claimant. From what we heard from Mr Joshi, which we accepted, their circumstances were considerably different to the Claimant, as they had completely different duties, as well as different working times.

[182]There is an email on [Bundle 196] which criticises the Claimant’s performance, and that of her female colleague. We take that into account.

[183]There are no facts from which we could conclude that a hypothetical male colleague would not have received the same scrutiny, feedback and criticism as the Claimant if that hypothetical male colleague’s circumstances had been the same as the Claimant’s including in job duties, job performance and time keeping.

[184]On the evidence, Mr Joshi introduced some new systems and procedure which affected how the Claimant was instructed to perform her work, and the Claimant did not – in all cases – comply with the instructions, leading to him reiterating those instructions. There are no facts from which we could conclude that those changes would not have been introduced had the Claimant been a man, or that Mr Joshi would have been more tolerant of the employee’s failure to comply with the new way of working had the employee been a man.

[185]Therefore, in relation to this alleged act, the claims of harassment and discrimination both fail, as the Claimant has not persuaded us that there was any conduct that was either related to sex or because of sex, even taking account of the burden of proof provisions. 8.7.1. Subject the Claimant’s timekeeping to scrutiny that was not applied to 8.7.3. Dismiss her

[186]For the allegation that the Claimant’s timekeeping was subjected to greater scrutiny than was applied to others (because of sex or for a reason related to sex), and the allegation that she was dismissed (because of sex or for a reason related 39 of 49 to sex), we are satisfied on the evidence, that the Claimant’s sex did not play any part at all, even unconsciously, in the decisions to speak to the Claimant informally about timekeeping, give the Claimant warnings for timekeeping, monitor her arrival times (especially during the warning period), formally instigate disciplinary proceedings, dismiss her, and reject her appeal.

[187]The evidence that Mr Joshi has also taken action against others is fairly neutral. We found paragraph 10 of his written statement to be potentially misleading, as it implied that one or more of the names in brackets were men whom Mr Joshi had dismissed. While we accept that they were all men, and that he had taken some action against them in each case, in actual fact, none had been dismissed.

[188]There is evidence in the bundle (which the Claimant does not concede is reliable) about occasions on which the Claimant arrived later than her 10am start time. There was no evidence about the specific arrival times of other people in relation to their respective contractual start time. The evidence does show that the Claimant was frequently late; it has not been established that the others had similar frequency of lateness.

[189]There is no actual comparator for the Claimant (including the people mentioned in Mr Joshi’s paragraph 10, as well as Mr Joshi and Mr Bell). These individuals did not have sufficiently similar circumstances to the Claimant’s. To the extent that some were warned, rather than dismissed, the Claimant was also warned. To the extent that some resigned, or left because of a TUPE transfer after the warning, there is no evidence to persuade us that their timekeeping was similar to the Claimant’s in the weeks immediately following their warning, or at any time between the warning and the end of employment.

[190]The Claimant’s own bundles, JP1 and JP2, contain evidence of her being informed that her line manager raised concerns about lateness with her. Prior to this the Tribunal hearing, the Claimant had not argued that these emails were unjustified because she was not late (on the specific occasions identified by the specific emails, or at all), but rather she had argued that Mr Joshi should have been willing to accept her lateness because she made up the time and because her performance, apart from the lateness, was good, and for that reason the frequent reminders/accusations about lateness were unjustified.

[191]The Claimant’s lateness was extremely frequent, and some of it involved arriving tens of minutes, rather than a few minutes, after 10am. We accept Mr Joshi’s account that every employee had a contractual start time, and was expected to keep to it, and would face disciplinary action if they failed to do so. The evidence shows that in the Claimant’s case, not counting the warning in 2013, she had various informal warnings and discussions in 2020 and 2021, prior to the formal disciplinary stage. There was a first warning and a final warning prior to dismissal. 40 of 49

[192]The evidence shows that Mr Joshi sought and attempted to follow HR advice. While that does not, in itself, eliminate the possibility that he was motivated by the Claimant’s sex, or by a reason related to her sex, we reject the Claimant’s argument that we should infer that he was overly eager to seek to dismiss her. The tone and content of the emails to HR in late 2021 does tend to show that Mr Joshi thought that it was time to progress the matter through the formal stages, and potentially move to a dismissal decision. However, that is not surprising or suspicious given both the specific written informal warnings following the “reset” meetings, and given, as he mentioned to HR, he was regularly sending emails to the Claimant and speaking to her about lateness, but the Claimant was, in his opinion, brushing him off and was showing no signs that further informal action by the Respondent would bring about the desired improvement. There is no suggestion in the emails that he would still have moved to a dismissal hearing even if the Claimant’s punctuality improved following the earlier written warnings.

[193]Not only are there no facts from which we could conclude that the Claimant’s sex influenced the decision making (about the amount of scrutiny, warnings or dismissal), we are fully satisfied that a male employee whose timekeeping was the same as the Claimant’s would have been treated no more leniently.

[194]We ask ourselves these questions.194.1 Was the Respondent’s dismissal reason the Claimant’s conduct (specifically persistent poor timekeeping) as the Respondent claims?194.1.1 It is for the Respondent to show it was, not for the Claimant to refute, but we analyse the Claimant’s arguments that it was because of sex, or because she had made reports of financial irregularities?

194.1.2 We have to decide if Mr Joshi was the decision-maker. If he was, we have to decide if he genuinely believed that the Claimant was guilty of persistent poor timekeeping AND whether, if so, that was his reason for terminating the Claimant’s employment?

194.2 If the dismissal reason was genuinely the Claimant’s conduct, then did the Respondent have reasonable evidence that she had acted in the manner alleged.

194.3 We also have to decide whether a fair procedure was followed prior to dismissal, and whether the procedure as a whole, including the appeal, was fair. 41 of 49

194.4 Finally, we have to decide whether the decision was inside or outside the band of reasonable responses, making sure that we assess the Respondent’s decision, and do not substitute our own.

[195]On the first question, we are satisfied that the Respondent’s reason for dismissing the Claimant was the Claimant’s conduct (specifically persistent poor timekeeping). Mr Joshi took the decision to dismiss. He genuinely believed that she was persistently late, and he genuinely believed that the lateness justified dismissal (taking account of the fact that there was a current final written warning, which had been issued after an earlier formal warning, which had been issued after several informal warnings). His decision to dismiss was because of that lateness.195.1 As part of her job as accountant, it was the Claimant’s responsibility to highlight any financial issues or irregularities. We are satisfied that she did so diligently, whenever such matters came to her attention. We are not satisfied that she was treated any differently after raising any particular matter than she was before it.

195.2 The Claimant’s witness statement refers to some alleged incidents in January to March 2019. The implication is that Mr Joshi was angry with her because she highlighted wrongdoing by him in that period, and that he subsequently disciplined or dismissed her because of it. However, the three reset meetings were January 2020, November 2020 and May 2021. So the first of those was 9 months after the alleged highlighting of his wrongdoing. The first written warning was not until November 2021. The chronology does not lend weight to the Claimant’s argument, and, while we do not ignore the possibility of an unscrupulous person being so devious as to wait a long time for revenge - precisely so that they could argue that it was implausible that someone would wait so long to retaliate - there are no facts which cause us to infer that any of Mr Joshi’s actions were motivated by his opinion of what the Claimant had said or written, to him or about him, either in the period January to March 2019, or at all.

195.3 We have also noted [Bundle 412 to 417] and the Claimant’s reference to those pages in her witness statement. There are some alleged discrepancies which are later than March 2019. However, in fact, many of those actually post date the first warning in November 2021. The sums are fairly small, and there is no evidence that these were anything more than the type of routine matters which a diligent administrator would notice, and seek resolution for. In the main, in those documents, the Claimant is suggesting incompetence on Mr Joshi’s part, and/or a failure to understand her role rather than making allegations of any dishonesty, or cover-up, or that Mr Joshi was retaliating against her for some improper motive. 42 of 49

195.4 As against the Claimant’s argument that Mr Joshi had some hidden reason for seeking to dismiss her, there is substantial contemporaneous evidence that both Mr Joshi and Mr Willis regarded the Claimant’s lateness as being something which had to be addressed, and which they attempted to address, and for which they sought HR’s assistance and advice.

[196]For the second question, we are satisfied that Mr Joshi did have reasonable grounds for his belief that the Claimant was guilty of persistent poor timekeeping.196.1 We will discuss documents at [Bundle 348] and [Bundle 439] in more detail below, but on the dates that he was in the office, Mr Joshi had the evidence of his own eyes that the Claimant was not present at 10am. On the days he was not in the office, he relied on information from Mr Bell. He also had the Claimant’s own comments, both before and during the 13 January 2022 meeting. In the meeting, the Claimant did not deny being late, and actually accepted that she had been. She put forward explanations for some specific occasions, and more generally accepted having been late without having notified the Respondent in advance.

196.2 Mr Joshi did have reasonable grounds to decide that, at 10am, the Claimant was not already working elsewhere in the building, before going to her own desk for the first time. He had reasonable grounds for concluding that she was significantly late very often. That included that the Claimant did not seek to persuade him that she had already been in the building every day, or on specific occasions, and his own assessment that her work elsewhere would take no more than 10 minutes or so, coupled with his instruction to her that she should be present, in her own office and ready to work, by 10am.

196.3 The Claimant did not state during her employment (or at the appeal) that she had been in the building working away from her desk at 10am. It was not necessary for Mr Joshi to specifically address his mind to an argument that he did not believe to be true, and which had not been raised by the Claimant. The issue of whether there were reasonable grounds for him to reject, on 13 January 2022, a specific argument that was not presented does not arise. However, he did have reasonable grounds to believe that she was not at work by 10am, as per the requirements of her contract, and as per his previous instructions to her as her manager.

[197]For the third question, our decision is that the procedure fell outside the band of reasonable responses which a reasonable employer could adopt.197.1 Not every defect in a procedure would lead to that conclusion. The standard is reasonableness, not perfection.

197.2 Furthermore, not only is it totally irrelevant how the Tribunal might have handled the procedure, the fact that some other employers might have done 43 of 49 things differently is not the test either. Another system for recording the Claimant’s arrival time could have been created, but it does not follow from that that it was outside the band of reasonable responses for Mr Joshi to rely on direct observation by himself and Mr Bell.

197.3 The investigation did not entail gathering evidence (CCTV or witness statements) from the ground floor to find out if the Claimant was in the building working away from her desk. However, this was not an argument raised by the Claimant in any of the informal meetings about her lateness, or when she was invited to the first disciplinary hearing or the second disciplinary hearing. It was not raised by her on 13 January either, and so it was not necessary to adjourn and investigate that point further.

197.4 We do not think it was a breach of the ACAS code for Mr Joshi to be the decision-maker in the circumstances. Nor was it a breach of the ACAS code that there was no separate meeting deemed “investigation meeting” with either Mr Joshi or anyone else. As the Claimant’s line manager, it was not unreasonable that he was the person who collated the evidence of alleged lateness, and that he was the decision maker on the dismissal.

197.5 It was also not unreasonable that he was the person who issued the first warning and later then final warning, and was also the decision maker on the dismissal. Apart from anything else, there had been no formal challenge to those warnings. The Claimant had the right to appeal and did not do so. It is not plausible that the Claimant was unaware of the right to appeal, but, even if that is hypothetically true, the Respondent did nothing to create that state of ignorance.

197.6 The Claimant had every opportunity to request a different hearing officer, or to request an investigation meeting. She did neither. It was not unreasonable for the Respondent to decide that neither such thing was required.

[198]However, the following defects cause us to decide the process was outside the range of reasonable responses and therefore unfair.198.1 The Claimant was told both on 30 January 2020 [Bundle 188] and 24 November 2021 [Bundle 287] that her lateness was being recorded on the ADP system. While we accept that it is factually accurate that Mr Joshi made a good faith attempt to do so:198.1.1 his entries [Bundle 439] were not consistent with the data presented to the Claimant on 13 January [Bundle 348];

198.1.2 his ADP entries were not provided to the Claimant so that she could consider if they provided help to her to defend the allegations; 44 of 49

198.1.3 his ADP entries were not taken into account by Mr Joshi prior to making the decision to dismiss, and nor were they considered by Mr Poole for the appeal.

198.2 We are satisfied that neither [Bundle 348] nor [Bundle 439] was deliberately manipulated to try to make the Claimant’s timekeeping look worse than (in Mr Joshi’s genuine opinion) it actually was. However, according to Mr Joshi’s account (which we accept as being truthful) each of them was created based on the same evidence (his own personal knowledge of the Claimant’s arrival time, the emails which he sent her, and the emails which Mr Bell sent to him). Neither was created entirely contemporaneously ([Bundle 348] being created entirely after the events in question, and for the purposes of the disciplinary hearing, and [Bundle 439] being at least partially completed later than the day in question, when Mr Joshi returned to work after his holiday). However, a reasonable investigation would have been one which revealed that two different documents which, in theory, ought to have contained the same data did not in fact do so. Further, a reasonable procedure would have been one in which the Claimant was supplied with the information from ADP, so that she could have sought to challenge the accuracy of [Bundle 348]. The Claimant had specifically been told historically that – because her lateness was perceived as a problem – accurate records of arrival times would be put on ADP. It was unreasonable, in those circumstances, to fail to provide the data from ADP to the Claimant, and unreasonable for the employer to fail to check it and cross-reference it to [Bundle 348].

198.3 We are not persuaded by the Respondent’s evidence that the Claimant was handed, on 13 January, printouts of all the emails which had allegedly been sent to her showing her absence on specific dates. Even if we are wrong on that:198.3.1 none of them were sent with the hearing invitation letter, and that was unreasonable if it was the Respondent’s intention to suggest that they were evidence of specific arrival times, and ask her to account for the reasons for lateness (or to dispute the time, as the case may be)

198.3.2 when they were (on the Respondent’s case) handed to the Claimant in the meeting, the Claimant was not offered time to read through them all, and consider them, and prepare what she might want to say in response.

198.4 It is common ground that the list on [Bundle 348] was handed to the Claimant in the meeting. However, it was not sent to her in advance of the meeting, and the Claimant was not offered time to consider each entry one by one, and consider if there were grounds to challenge them with specific evidence. The Claimant did know, before the hearing, that it was about lateness. She 45 of 49 did not necessarily know which specific dates or alleged arrival times the Respondent had in mind.

198.5 The Respondent’s procedure did not uncover that 18 and 19 December 2021 were weekend days, and days on which the Claimant was not working and was not required to work, and so the entries for those dates were false accusations of lateness. (False in the sense of being inaccurate; they were not fabricated and it is not the case that the Respondent knew that she was not late on those dates). The Respondent’s procedure was such that the Claimant did not have an adequate opportunity to spot that for herself prior to Mr Joshi’s dismissal decision.

198.6 Although it is true that, on the Respondent’s case, the Claimant had received emails contemporaneously alleging lateness on specific dates, it does not follow that she knew which of those specific dates would be dealt with on 13 January 2022. Furthermore, on Mr Joshi’s own evidence, he believed that the Claimant was ignoring these emails and was not opening them.

[199]In some circumstances, defects at an initial stage can be cured on appeal: Taylor v OCS Group

[2006] IRLR 61

.199.1 In this case, Mr Poole had some knowledge of the events prior to the dismissal, and of Mr Joshi’s decision. That, in itself, does not breach the ACAS code or render the appeal unfair.

199.2 We accept his evidence on oath that, on a conscious level, he was willing to listen to the Claimant’s arguments, and, potentially, overturn the dismissal.

199.3 However, the Claimant had asked to speak to him in December, and he decided that was not necessary because she was already in discussions with Natalie Cumino from HR. Thus, he was not simply aware that one of his reports (Mr Joshi) was dealing with a disciplinary matter; he had made up his mind by that stage that there was no reason for him to meet the Claimant.

199.4 However, the defect of failing to give the Claimant the evidence in advance of the meeting, coupled with the fact that the Claimant had been required to leave the premises on the day of the dismissal, meant that the Claimant had not had the opportunity before the appeal hearing to check her own work records (emails sent, for example) to attempt to refute any given alleged arrival time.

199.5 We do accept that there was time after the dismissal decision, and before the appeal, such that the Claimant could at least have spotted 18 and 19 December were weekends, and she might have also been able to access information from other sources to confirm her own whereabouts on particular 46 of 49 days. But the defect in the procedure which led to the decision on 13 January was not cured by the subsequent appeal opportunity.

[200]Thus, the dismissal was unfair because the procedure was outside the band of reasonable responses.

[201]Based on the extent of the lateness as Mr Joshi and Mr Poole genuinely perceived it, and on the fact of the previous warnings, it was not outside the band of reasonable responses that the decision was dismissal. The Claimant’s length of service was not ignored, and she was given every opportunity to out forward explanations or mitigation. There are reasonable employers who would have decided that no sanction short of dismissal was appropriate. We will address the lack of notice, and the pay in lieu of notice, below.

[202]At the remedy stage, we will make a decision in relation to Polkey.202.1 This will include an assessment of whether the Claimant would still have been dismissed on 13 January 2022 had the Respondent acted fairly by (either providing the evidence in advance or), for example, by offering a break in the hearing for the Claimant to consider the evidence and formulate her response and/or to consider asking for the raw data on which it was based.

202.2 It will include an assessment of whether the 13 January hearing might have been adjourned for a few days to enable those things to happen

202.3 It will include an assessment of whether the Claimant, having been provided such an opportunity, might have been able to persuade Mr Joshi that the evidence was flawed and that, rather than dismissing her at that stage, he should make a decision that the Claimant was still under a Final Warning,

202.4 We will decide whether the approach will be to decide that the Claimant’s dismissal would have been delayed, but was inevitable, or else whether to apply a percentage reduction to the compensatory award to reflect the uncertainty.

[203]At the remedy stage we will also make a decision on contributory fault. It is our provisional view that there will need to be a percentage reduction to both basic award and compensatory award because of blameworthy conduct by the Claimant. We are likely to follow the guidance of applying either 25%, 50%, 75% or 100%, rather than a different amount. Breach of Contract

[204]We are satisfied on the evidence that the Claimant was frequently late. We do not think that [Bundle 348] or [Bundle 439] is sufficiently reliable that we can decide on specific arrival times on specific dates. However, regardless of whether she was 47 of 49 sometimes at her desk on time, or sometimes she was downstairs working at 10am, it is clear to us that there were many occasions over many years that the Claimant did not arrive until a long time after 10am. This lateness continued even after the final written warning.

[205]Even if there was tolerance of this lateness at some periods during the Claimant’s long period of employment, the Respondent never varied the contract so that she could have a flexible arrival time. On the contrary, she was told many times that it was not flexible.

[206]The Respondent had made clear that the arrival time should be 10am. This was a change from a fixed arrival time of 9.30am and was agreed to attempt to accommodate her. It was agreed that she could take a shorter lunch break, thereby keeping her weekly hours and pay the same.

[207]The Respondent offered her a later time, and she refused. The offer made was that she could start later than 10am, but still finish at 6pm. The Claimant knew that this would mean fewer weekly hours and a pay reduction. She rejected this offer. She knew that the Respondent required her to be there for 10am as a condition of her contract, and as a condition of her continuing to receive the same weekly pay (that is, without the reduction in pay that would have been the result if she had accepted the offer of a start time later than 10am).

[208]The Claimant knew that the Respondent did not regard making up the lost time as an acceptable alternative to arriving for 10am. It had told her she had to take at least 30 minutes as lunch break, and that she was required to leave promptly at 6pm.

[209]In 2021, the Claimant was given first warning and then a final warning, reiterating the 10am requirement.

[210]It was a serious breach of contract on the Claimant’s part to be often late. Whether it was a deliberate choice to be late or was accidental, it was still a breach of contract.

[211]However, on the evidence we are not persuaded that the Claimant intended her actions to flout the contract. She believed that she was complying with the more important obligations by getting the work done including working through lunch and so on. She was committed to working for the Respondent and wanted to carry on.

[212]We have taken into account the full list of examples of gross misconduct in the handbook (and of the fact that they are examples, not an exhaustive list), including that “serious breach of company policy / procedure” is one of the examples mentioned. 48 of 49

[213]Although a repudiatory breach can be conduct on the employee’s part which is accidental or negligent, rather than deliberate misconduct, our decision is that the Claimant’s breach was not so serious that it was repudiatory. Since there was no repudiatory breach, the Respondent breached the contract by purporting to accept a repudiatory breach by its summary dismissal.

[214]The Claimant was entitled, in accordance with clause 11 of her contract, to either be given 12 weeks' notice, or else a payment in lieu of that period. She received some payment in lieu, but less than her full entitlement.

[215]There was therefore a breach of contract, and the amount of damages will be assessed at the remedy stage. Outcome and next steps

[216]Following announcement of our liability decision with reasons, we heard submissions about re-employment. We have sent a separate reserved decision about that.

[217]We also arranged a hearing for 19 March 2024 to deal with other remedy issues and the Claimant’s application for a preparation time order. REMEDY JUDGMENT(1) The Respondent is ordered to pay the Claimant £2753.71 for breach of contract (failure to give proper notice).

(2) The Respondent is not ordered to pay anything to the Claimant as compensation for unfair dismissal because (i) The claimant caused or contributed to the dismissal by blameworthy conduct and it is just and equitable to reduce the compensatory award payable to the claimant by 100%. (ii) It is just and equitable to reduce the basic award payable to the claimant by 100% because of the claimant’s conduct before the dismissal.

(3) These were the only successful complaints and so the aggregate sum which the Respondent must pay is £2753.71. Case No: 3306595/2022 COSTS JUDGMENT

(4) The Claimant’s application for a preparation time order is refused.