Ms C Constantine v Blackwater Valley Veterinary Centres Ltd: 3307692/2023
EMPLOYMENT TRIBUNALS
Case No 3307692/2023
Between
Ms C ConstantineClaimantBlackwater Valley Veterinary Centres LimitedRespondent
Before
Employment Judge GeorgeIn person for claimantMr J Franklin (instructed by Counsel) for respondentDate 29 September 2025
JUDGMENT
The reserved judgment of the Tribunal is as follows: Wages[1]The complaint of unauthorised deductions from wages is well-founded. The Respondent made a series of unauthorised deductions from the Claimant's wages in the period May 2021 to 31 July 2023. The last such deduction was made less than three months before presentation of the claim.[2]The amount of the deduction and the amount that the Respondent shall be ordered to pay the Claimant is to be calculated following further submissions from the parties. The calculations are to be done using the gross sums – that is to say before deductions for tax or National Insurance.[3]The employment tribunal does not have jurisdiction to make an award in respect of deduction from wages paid to the Claimant on or before 3 July 2021.[4]In the absence of agreement, the amount to be paid by the Respondent to the Claimant in respect of unauthorised deduction from wages will be considered at a remedy hearing before Judge George in person in Reading Employment Tribunal with a time estimate of 3 hours. A separate Notice of Hearing will be sent.[5]No later than 13 October 2025 the parties are to send to each other and the tribunal their respective calculations of how much the respondent owes the claimant, based on the conclusions in this reserved judgment and whether they consider the remaining issues can be decided without a hearing. Disability discrimination[6]At the relevant times the claimant was a disabled person as defined by section 6 Equality Act 2010 because of chronic fatigue.[7]The complaint of direct disability discrimination is not well-founded and is dismissed.[8]The complaint of unfavourable treatment because of something arising in consequence of disability was not presented within three months of the act complained of, but it is just and equitable to extend the time limit.[9]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds. Unfair dismissal[10]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed. Compensation for unfair dismissal and discrimination[11]The respondent shall pay the claimant the following sums:a. A basic award of 6 X £643.00 = £3,858.00.b. A compensatory award of £8,925.81 calculated as follows:[14]Weeks net of 8,594.52 tax/NI after credit for earnings in mitigation1 Pension loss @ 3% of 331.29 £11,511.98 (gross wages over that period) 8,925.81 1 See paras.272 to 278 below. d. Compensation for injury to feelings: £5,000; e. Interest on compensation for injury to feelings calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: 22.08.2022 to 21.09.2025: 37 months @ 8% £1,233.33. The total award of compensation for unfair dismissal and disability discrimination is (£3,858.00 + £8,925.81 + £5,000 + £1,233.33) = £19,017.14 Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied.
REASONS
[1]Following a period of conciliation which lasted between 5 May 2023 and 6 June 2023, the Claimant presented a Claim Form on 3 July 2023. The complaints arise out of her employment by the Respondent as a Veterinary Surgeon between 1 January 2017 and 21 July 2023. Her employment ended on the expiry of a period of notice which she gave when she resigned on 21 April 2023.[2]Her complaints are unauthorised deduction from wages, constructive unfair dismissal and disability discrimination. They are defended by Grounds of Resistance which were entered in time. The case was case managed at a Preliminary Hearing on 18 December 2023 when the issues were clarified and the claim listed for Final Hearing.[3]I had the benefit of a joint hearing file of the relevant documents which ran to 321 pages. After she had given her evidence at the start of the second day of the Hearing, the Claimant applied for permission to put in evidence an additional document which had not previously been disclosed to the Respondent. This was a rota from 2017. After hearing the parties’ submissions I refused that Application for reasons which were given orally at the time and which are not now repeated. The parties are entitled to request written reasons for this decision. They should do so within 14 days of the date on which this Reserved Judgment is sent to them.[4]I heard oral evidence from three Witnesses. The Claimant gave evidence in support of her own claim. Mrs K Bell the Respondent’s Practice Manager and Mr Djordje Vuckovic the Director of the Respondent also gave evidence. The parties had exchanged written Witness Statements which the witnesses adopted in evidence and upon which they were cross examined.[5]The claim had originally been listed for a three day Final Hearing but due to unavailability of judicial resource, the time allocation was reduced to two days. I timetabled the Hearing at the start of Day 1 and decided to reserve my Judgment. As a consequence the parties had available to them the same amount of Tribunal time for evidence and oral speeches as had been allocated by the original timetable (page 39).[6]I was grateful to Mr Franklin for his offer to send to Ms Constantine his draft written submissions (RSUB) on the morning of Day 2. They were therefore written at a time when his own Witnesses had not yet given evidence but it meant that the claimant had time to read them before responding.[7]The disability relied on is that of chronic fatigue and the Claimant explained that she would need regular breaks. I outlined the normal Tribunal day of sitting between 10am and 1pm and then between 2pm and 4 / 4:30pm; each session typically having a break at some point. Ms Constantine agreed that this would be sufficient and I told her that she was welcome to have other breaks when she requested them. It was possible to have a longer break before closing speeches and with the Claimant’s evidence starting at about 11:30am on Day 1 all evidence and closing speeches was concluded by the end of Day 2.[8]Pressure of work and a period of leave meant that it has taken longer than I had hoped to complete this reserved judgment and I apologise to the parties for that delay.
The Issues
[9]The issue in the case had been drafted and inserted into an Annex to the Case Management Summary sent to the parties on 5 January 2024 (page 50). The parties had been invited to write after that Hearing to explain if any of the issues were incorrect. On 15 January 2024 the Claimant wrote (page 55) to say that the date of List of Issues (hereafter LoI) 6.2.6 was incorrect and should read August 2022. That is the complaint that proposing a new part time contract in August 2022 was an act of discrimination for a reason arising in consequence of disability. She also clarified in her email that, “… the complaint is not the proposal of a part time contract but rather the fact that the salary offered was disproportionately low compared to my full time salary and not pro-rata as claimed by the Respondent.”[10]She therefore proposed the amended wording, “proposing a new part time contract in August 2022 at a disproportionately low salary”.[11]The Respondent accepted that this was the basis on which they had understood they needed to meet the claim.[12]Mr Franklin did raise a question about whether there was an attempt by the Claimant to expand the List of Issues and drew attention to paragraph 79 of her Witness Statement which listed six bullet points and said that the discrimination had not been a single event. Those six bullet points did refer to incidents other than those directly concerned with the proposal of the part time contract. The original proposal of the part time contract had been on 22 August 2022 but a revised part time contract had been sent on 9 November 2022: see page 97. In addition, revised calculations of the proposed salary were sent on 20 October 2022 and an Addendum to the August 2022 contract was sent to the Claimant on 9 November 2022. That Addendum is found at page 105.[13]I asked the Claimant to clarify what she was asking me to consider as acts of discrimination arising from disability for which, if successful, she wanted the Tribunal to award compensation. Her answer was that it was only the amended wording in her claim on page 55. She clarified that the factual narrative that was the subject of the bullet points in paragraph 79 were not separate alleged acts of discrimination for a reason arising from disability or direct discrimination. It is fair to say that the penultimate bullet point in paragraph 79 is broadly the same wording as the allegation of direct discrimination. Nevertheless, this confirmed that the issues remained those in the Annex at page 50 as amended by the Claimant’s correspondence. That is not repeated lest this judgment be unnecessarily long.[14]The time limit issue had only been worded in respect of complaints under the Equality Act 2010 (hereafter the EqA). In closing, quite properly, Mr Franklin pointed out that – depending upon my findings – it was possible that I would find there had been unauthorised deduction from wages prior to October 2022 when the Respondent changed the rate at which it paid the Claimant for her reduced hours. In that situation, Mr Franklin argued, a time limit point in relation to the unauthorised deduction from wages complaint would arise.[15]Although no time limit point is set out in the Annex at page 50 in relation to the unauthorised deduction from wages complaint, time limits are a jurisdictional matter. Therefore if it comes to the Tribunal’s attention that a particular complaint may have been presented outside the primary limitation period that is something that the Tribunal needs to decide, whether or not it is an issue that has previously been listed for consideration.
Findings of Fact
[16]I make my findings of fact on the balance of probabilities taking into account all of the evidence both documentary and oral which was admitted at the Hearing. I do not set out in this Judgment all of the evidence which I heard but only my principal findings of fact, those necessary to enable me to reach conclusions on the remaining issues. Where it was necessary to resolve conflicting factual accounts I have done so by making a judgement about the credibility and reliability of the Witnesses I have heard based upon their overall consistency and the consistency of accounts given at different occasions when set against contemporaneous documents where they exist.[17]The Claimant had worked at the Practice as a Locum prior to the start of her formal contract of employment on 1 January 2017 (the contract is at page 57). During his explanation of why he said the Claimant knew and accepted throughout her employment that the Practice used the figure of 260 to represent the number of working days in a year, Mr Vuckovic said that as a Locum the Claimant had been paid for every shift that she worked and then, “Out of good will when you didn’t show up to work we paid you to recover”.[18]He emphasised that at that time she had in general been in full health so I understood him to be referring to occasional sickness absence and he suggested that since the Claimant was completing time sheets to send to the Agency to arrange for payment, she would be aware of this.[19]I do not see any connection between a practice (if it existed) of allowing a Locum to claim payment for booked shifts that they had not worked or not worked in full because of sickness and the asserted practice of working on the basis of a 260 day working year (regardless of the number of days on which an employee actually attended work). Besides, Mr Vuckovic prefaced the comment by saying it had been paid out of good will. Therefore, if the Practice did make those payments, they were not done because they considered themselves to have any legal obligation to do so. It does not seem to me to follow that the Claimant should have understood that its employees were treated as though they worked 260 days a year when their working hours in a particular seven day period would vary over a three week pattern. The number of working hours was not the same on all of the days that they were required to attend work and a full time employee may in fact have been rotared to work on a greater or lesser number of days in the year than 260.[20]Since, even if true, I do not see that this evidence could be relied upon as a basis for the Claimant’s knowledge and understanding about how a day’s wage should be calculated as an employee, I do not need to make a finding about whether this was in fact something the Practice did.[21]The only documentation dating from the start of the contract of employment is the written contract at page 57 which states that it is dated 28 December 2016. The preamble at the top of page 57 says that the document sets out the main terms of the Claimant’s employment, “… which together with your offer letter and Employee Handbook form the terms and conditions of your employment.”[22]Neither party referred me to an offer letter or to any sections of the Employee Handbook (if one exists). There were no examples of either in the Hearing file and therefore the only documentation from the inception of the Employment in evidence is the contract itself.[23]I particularly note Clause 10 which states that the Claimant’s hours of work, “are those necessary for the proper performance of your duties”.[24]Clause 11 states that she is entitled to a 60 minute paid break. Other than that, the hours of work or the hours during which the Claimant is expected to be at work or to attend at the premises, are not specified in the contract or in any covering documentation.[25]Clause 12 is headed “Short time working and lay off”. Under it the surgery reserves the right to introduce short time working, “…on proportionately reduced pay … where this is necessary to avoid redundancies, where work cannot be performed due to exceptional circumstances, or where there is a shortage of work.”[26]It was argued on behalf of the Respondent that this covers the situation where the Respondent had agreed that the Claimant should return to work on a phased return and then should work within the terms of her fitness certificates as will be set out in more detail below. Whether or not this Clause covers such a situation – and on its face it seems more apt to cover short time working or lay off due to the needs of the business rather than reasonable adjustments to the work load – it does provide some support for the principle that working fewer than normal hours should be on proportionately reduced pay.[27]Clause 16 sets out some entitlement to contractual sick pay. The reason I mention it is that the entitlement is, “your normal pay for five days in any 12 month rolling period”[28]This appears to be a situation where it would be necessary for the employer to calculate how much “normal pay” for a day would be but the contract is silent as to how that calculation should be done.[29]As will be seen, before me the Respondent has contended that there is no particular contractual provision as to how that calculation should be done. On the other hand, contemporaneous documentation from October 2022 (page 97) asserted that a daily rate was calculated for annual salaried employees by dividing the annual gross salary by 260 notional working days. The Grievance Outcome written by Mr Vuckovic asserted that this was the practice “as a company” and that it had been accepted since the start of the Claimant’s employment that all full time employees were deemed to work 260 days a year.[30]The only documents that I have been taken to which set out this as the basis of the calculation for a daily rate of pay are from October 2022 or later, after the dispute arose.[31]The Respondent argues that when applying for annual leave or taking company sick pay, the Claimant knew full well that the working week was regarded by the company to be a five day week.[32]The Claimant’s evidence was that, at the time of her sickness absence, her normal work schedule for several years had been Monday, Tuesday, Thursday and Friday 0900 – 1900 plus one weekend every three weeks (see para 2). When she worked weekends there were shorter opening hours for the surgery: Saturday was 0900 – 1700 and Sunday was 0900 – 1300. She stated that all full time Vets worked the equivalent of four days a week and one in three weekends. She calculated that to be an average of 44 hours a week, using the calculation at the top of page 211.[33]Mrs Bell’s evidence was that morning surgery would start at 0900 and evening surgery would finish at 1900 but that full time Vets typically were free to take a break between about mid-day and two o’clock; they were contractually entitled to a paid one hour break. She was unwilling to accept that the normal working hours on a scheduled work day which fell during a week day were 10 hours.[34]It appeared to be common ground that working hours on a Saturday were 8 hours (including a paid one hour break) and on a Sunday were 4 hours; that was certainly the Claimant’s evidence and the Respondent did not contradict that. Their evidence was that, when the Claimant started her employment, she worked on every day in the week but that two days were half days, which from surrounding evidence I find involved a five hour shift. The Claimant was unable to remember this in detail, or to remember when it had changed; she was clear that from some time in 2017 her recollection was that she was being rotared to work four full days and had a regular day off on Wednesday.[35]The Respondent claimed that when a Vet took a week’s holiday they would have five days deducted from their holiday allowance, rather than the four days that they would have attended had they not been on annual leave (KB para 14). However, the documentary evidence of requests for leave was equivocal with the Claimant pointing to a number of occasions in which she asked for specific dates, rather than for “a week”. Furthermore, the Respondent was not able to provide a satisfactory explanation for why they required employees to seek permission to be absent on a day when they were not required to attend work in any event. This was not weighty evidence that the Claimant clearly understood at all times that “a week” meant a notional 5 days – particularly when in order to take holiday over a period they were rotared to work a weekend the vets had to swop with a colleague. If that is the arrangement, then they are not taking leave from weekend working.[36]The payslips in the Hearing file were none of them dated prior to October 2022. Time sheets in the Bundle started on 1 March 2023. The payslips that were in evidence did not, until January 2023, break down the number of days and the rate at which the Claimant was paid.[37]There is simply no documentary evidence to support the Respondent’s case that from the start of the Claimant’s employment she knew full well that when a daily rate of pay needed to be calculated under her contract (e.g. for her to be paid for a day’s annual leave or company sick pay), it was done by dividing her annual gross salary by 260 days.[38]The Claimant had an annual salary which, until shortly before her resignation, was £44,000 gross per annum. She agreed that she was paid one twelfth of this annual salary every month, although it would be in the nature of her working schedule that she would have attended work on more days during some months than others because she worked one weekend in every three.[39]The holiday entitlement was set out in Clause 13 and it was to 36 days inclusive of recognised Public Holidays. That is in excess of the statutory minimum set out in regs.13 & 13A Working Time Regulations 1998 (hereafter the WTR). Nevertheless, one would expect at least the statutory minimum annual leave to be calculated in accordance with reg.16. This provides that ss.221 – 224 Employment Rights Act 1996 (hereafter the ERA) apply for the purposes of determining the amount of a week’s pay. Since there is no complaint of unpaid holiday pay in this claim, I have not heard arguments on the Working Time Regulations 1998, although it was agreed that if the Claimant is successful in her unfair dismissal claim a week’s pay for calculating the basic award would need to be calculated using ss.221 – 224 ERA.[40]I mention the applicability of reg.16 because it underscores the confused position that the Respondent’s case on calculating a day’s pay produces. That is because their position on what the contract provided for calculating a days pay would not produce the same result as the method stipulated in reg.16 WTR for how holiday pay should be calculated.[41]I find that the hours set out in paragraphs 2 and 3 of the Claimant’s Statement were her usual working hours immediatrly before she became sick. Whether or not they were her usual working hours at the start of her employment is not relevant to the decision I have to make.[42]Both sides agree that when it was agreed that the Claimant should work reduced hours, or attend on fewer days of the week, her salary should be “proportionate”. The Respondent was not at that time relying on the Clause 12 reference to “proportionately reduced pay”. In any event, to say that the salary will be proportionately reduced is insufficient as a means of deciding the amount of the reduction. What is meant by the ordinary word “proportionate” in relation to salary is that the proportion the reduced salary bears when compared with the full salary, should be the same as something else. Clause 12 does not explain what pay should be reduced proportionately when compared with.[43]As I explain in the applicable Law section, the Part Time Workers Regulations 2000 incorporate the pro-rata principal which is defined in reg.1(2) and (3) to mean that a part time worker is entitled to receive not less than the proportion of pay of a full time worker that the number of their weekly hours bears to those of the comparable full time worker. Furthermore, “weekly hours” means the number of hours a worker is required to work under his contract of employment in a week in which he has no absences from work. If that varies according to a cycle the average number of hours should be taken.[44]I mention that at this stage to illustrate that Clause 12 this contract did not say what the salary should be proportionate to. As I have said, the wording of that Clause more naturally fits with short time working or lay off than with adjustments from full time to permanent part time working. It does not assist in deciding the central dispute in this case.[45]In summary, each side says the contract means the proportion that the reduced salary bears to the full time salary should be the same as the proportion of working time for which the Claimant was at work when she worked reduced hours when compared with her full time work (which she said was the full time hours of every full time Veterinary Surgeon). The Respondent says that the parties should be taken to have agreed from the way the contract operated in practice that working time should be calculated in the number of days a full time Veterinary Surgeon was contracted to be on site, compared with the number of days the Claimant was contracted to be on site and that a full time Veterinary Surgeon was contract to be on site for 260 days a year although that was not the number of days they would in fact attend for work. The Claimant is arguing that it should be the proportion the number of working hours it was agreed she should work compared with the number of working hours on a full time contract. This leads to a disagreement both about how the Claimant’s salary should have been calculated when her hours were adjusted on her return to work from sickness absence and about how her salary should be calculated for a permanent part time contract.[46]I reject the Respondent’s evidence that from the start of the Claimant’s employment it was clear that all full time employees, such as herself, were deemed to work 260 days a year, working on the basis of a notional five day working week when in fact the employee worked 40 hours over the course of a Monday to Friday working week and then 12 hours one weekend in every three.a. There is no documentary evidence to support their suggestion that this was well known and had been accepted by the Claimant as a way of working.b. As will be seen, during the first period of the Claimant’s sickness absence, they calculated the amount of a day’s pay on the basis that there were 295 working days in a year and applied the same arithmetic when proposing a proportionately reduced salary for the contract variation. If 260 days in a year was so well known and well established as to amount to a contractual term, then it is hard to understand why for several months they calculated her pay on the basis there were 295 working days in the year.c. Had the Respondent consistently said that using the figure 295 was a mistake, then perhaps it would be easier to accept but before me it was argued that both were equally capable of being correct. They are not capable of being a contractual provision if two inconsistent positions are equally capable of being correct. This changing position tends to undermine their evidence that this was in fact well understood and how the parties conducted themselves in practice.[47]What I find, therefore, is that the contract is silent as to how a day’s pay should be calculated where necessary. It would have been open to the parties to agree that a notional 260 working day year could be used, although the contractual position should not conflict with the employee’s statutory rights to have their annual leave paid at the rate specified in the Working Time Regulations 1998, for example. However, there was no express agreement and no express term can be inferred from the surrounding circumstances.[48]The Claimant started a period of sickness absence in November 2020. The Claimant describes this as a burn out and initially took some booked annual leave before being signed off by her GP for December. The schedule of sick notes at page 298 shows that she was certified unfit to work from 1 December 2020 to 4 January 2021 because of anxiety state. The Certificate was signed on 9 December 2020 and it is a feature of the Certificates that they appear not to have been issued by the GP until some time after the expiry of the previous Certificate. In some cases it is by several weeks that the Certificate post-dates the start of the period that it certifies.[49]The Claimant was prescribed Sertraline and became unwell with diarrhoea in December 2020. The symptoms continued after stopping that medication. Broadly speaking I find that the Claimant did not over state the effect on her of weakness and tiredness. When the respondent was served with the evidence relied on by the Claimant and her Impact Statement (page 31), they stated that disability status remained an issue because the Claimant’s account of the effects of her alleged impairment of chronic fatigue on her normal day to day activities, “…does not in several aspects reconcile with the Respondent’s experience of working with the Claimant. There are contentions contained within the said statement in respect to which the Respondent intends to lead evidence at trial on the issue of whether the alleged chronic fatigue had a substantial and adverse effect on C’s ability to carry out normal day to day activities.” (page 37)[50]Although it was attempted to re-cast this more in the nature of a challenge to whether the Respondent knew or ought to reasonably to have known about the facts amounting to the disability, nevertheless this position makes clear that the Respondent asserted that some of the ways in which the Claimant said she was affected were exaggerations because they did not reconcile with their experience of her at work.[51]At the time of the Impact Statement at page 31, the Claimant described the impairment as chronic fatigue – she gave an oral account that she has since been diagnosed with Chronic Fatigue Syndrome but this diagnosis post-dates the index events and should be disregarded. She describes having “a far more limited amount of energy per day” than she had before the end of 2020 (Impact Statement para 3). In paragraph 4 of the Impact Statement, she compares the position before she was ill when she would do a number of day to day activities such as walking the dog, gardening, doing washing and so on, but that since February 2021 she has insufficient energy to do so many different things. She explains her coping mechanisms in paragraph 6 (page 32), being selective about the tasks she chooses. She refers to the support of Mr Clare who attended the Hearing with her, giving the example of not having to cook. I accept her oral evidence when challenged that this was not a change from her pre-illness habits that although she had not been the primary cook, she had baked and cooked at weekends and now does not, because of fatigue. She describes needing a lot more sleep, sometimes at inappropriate times which impacts on her ability to do as many tasks in the day as before.[52]She also states that she has aches and pains which means that sometimes she can struggle to tie her hair up and has had to adjust the way that she showers (paras 11 and 12, page 32). She states that she has muscle weakness so that lifting heavier weights disproportionately fatigues her and that standing up for long periods of time also fatigues her.[53]It was suggested that she was not sitting on the floor at work because she needed to but rather because that was her usual way of working. I accept the Claimant’s evidence that it had been her way of working in order to bond with particularly anxious patients. However, since she was ill she sat as much as possible because she needed to do so. She describes energy levels being low and gave evidence that in order to return to work she did not work two full days back to back, although she had reached a point before her resignation where she could work a full day followed by a half day. It will be seen that she did work at least one weekend after her return to work, which is an eight hour day followed by a four hour day.[54]In paragraph 18 and following on page 33, the Claimant explains that when she returned to work she asked not to do any abdominal surgery without backup and said that non-abdominal surgery could be completed by the Veterinary Nurse if she was unable to complete it because of fatigue or muscle weakness. She explained that these were steps taken to ensure the safety of the patients because of the risk that the Claimant would become overwhelmed with fatigue. She explains that she no longer had energy to socialise as much as before and had to plan her attendance at an event in order to conserve her energy levels.[55]It was initially suggested that her attendance at a Ball on 16 September 2022 following a day of work on 15 September 2022 and followed by a weekend of working on 17 and 18 September 2022 contradicted her evidence on this (KB para 8). However, the Respondent later accepted that the Ball had in fact been on the evening of 15 September 2022 and the rota at page 257 shows that the Claimant worked only in the morning on 15 September 2022. Furthermore, at page 73 is an email from Mr Vuckovic to the Claimant about the updated rota for September which states that, “We are okay for that Friday 16 September. You need to rest and be ready for the weekend.”[56]Therefore, where the Claimant was challenged about the voracity of her account of tiredness, pain and muscle weakness, I find that the contemporaneous documentation supports the Claimant’s account which overall was credible.[57]It is fair to say that the Respondent acted supportively in relation to the Claimant’s return to work. She initially had a trial day. The messages on page 224 seem to refer to that. They are dated May 2021 and it appears on 7 May 2021 the Claimant texted Mr Vuckovic to say it had been lovely to see them, “Shaky and weak today but not unexpected I am able to stay awake today so far so that’s good ”[58]It was put to the Claimant that the GP notes do not mention fatigue. They start at page 208 with a consultation of 21 January 2021 – the pages should be read in reverse order. It is true that the problem listed as being the reason for the consultation is not fatigue either on that page or a month later. The Claimant’s evidence was that everyone presumed that her tiredness was connected with anxiety and diarrhoea rather than an impairment in itself. However, she pointed to entries such as on 29 March 2021 (page 206) where the history states, “Energy levels remain low but are slowly improving”.[59]On 21 April 2021, she reported to her GP that she was, “Improving physically as well as mentally, has been getting out for drive also.”[60]On 12 May 2021, when she reported on the trial day return to work she stated, “Exhausted after and at present feels to return one day / week would be enough and to slowly build.”[61]At this point a statement of the Fit for Work with a diagnosis of anxiety state was issued. This seems to have recommended one day a week. By the following month (page 203) there is reference to an increase to one and a half days a week but always having at least one day off in between, again with the problem stated to have been anxiety state. The consultation on 15 September 2021 (page 202) shows that the Claimant reported contemporaneously to her GP that she felt fatigued and felt unable to perform surgery “when like this”. Page 201 indicates that the Claimant was being treated for anxiety in that she had medication for it and used mindfulness resources. At that time a statement was issued to cover the period 16 January 2022 to 16 March 2022 (see page 201). Although ultimately a Fit for Work Certificate was issued which covered a period from 16 March, it was not issued until 9 May 2022. The consultation notes for that consultation are at page 200 and the diagnosis included on the Fit Note at that time was “anxiety exhaustion”. The Claimant was reporting to her GP concern about how she felt physically and said that the exhaustion continued, “Feels doesn’t know when will “hit”. Not able to work two days in row. Has noted that is slowly improving but still not back to normal. Some improvement to muscle strength now able to lift 15kg.”[62]A comment is recorded in this consultation note that she needs a letter for work to state that she is getting physical symptoms and it is causing exhaustion and the Doctor has recorded, “Likely significant stress / anxiety that has contributed to exhaustion.”[63]By this time the Claimant had been working on reduced hours since May 2021. She had told Mr Vuckovic (as recorded in notes taken by Mrs Bell at page 182) at an Appraisal Meeting on 26 January 2022, “Mentally fine, physically stuffed, in a lot of pain and exhausted. Sleeps for 16 hours and in pain, no rhyme nor reason for this. Currently making a diary for dizzy spells and tiredness.”[64]She is also recorded as having told them that she wishes to start operating but, “the pain is too bad”. I understand the note that she is only to operate in Campbell and not at Frimley is because she is not to operate at the surgery where she would have been a Veterinary Surgeon working on her own. She clearly refers to it being helpful if she can sit down to work rather than standing for long periods since she says that doing dental work is good and that she has been “doing x-rays as not a lot of standing around”. The Respondent indicated that they would like to request a GP’s Medical Report to confirm that the recommendation of a three and a half day working week was not going to change and would like to look into updating her to a part time contract, “with this she would not have to keep requesting fitness to work notes”.[65]The Respondent suggested that it was stressful for the Claimant to have to request Fitness to Work notes but she refuted this saying that at this point they were covering quite long periods of time so it was not particularly onerous for her to have to request them. However, what does seem to have been problematic for the Respondent, and probably for the Claimant as well, was that uncertainty about whether a Fit Note would be renewed to restrict the Claimant to working (for example) three and a half days a week, meant that their practice of setting the Vets rotas a month in advance was disrupted. I can quite see that if, for example, they wished to issue the Vets Rota for March 2022 at the beginning of February 2022 but did not have a Fit Note for the Claimant covering 16 March 2022 onwards until 9 May 2022, that would be problematic for the Respondent if there was a prospect that the Claimant’s working days would go up or down.[66]The reasons for proposing the part time contract were explained by Mr Vuckovic in oral evidence as being primarily to alleviate the anxiety caused to the Claimant by requesting ongoing Fitness Notes but also to allow the business to function in a more orderly fashion, because the Fitness Certificates did not allow them to present the Vets Rota at the commencement of the month, never mind a month in advance. I accept his evidence that this was something that caused the Claimant some agitation because it would impact on her employer and on her colleagues.[67]Following the desire by the Respondent to have more specific medical information about whether the Claimant would return to full time working, they wrote to her GP on 17 February 2022 (page 66). In that they stated that she worked four days a week with eight hour shifts and two in six weekends. They asked whether her health was likely to improve over a period of three months, six months or a year and also what affect the condition had on the Claimant’s ability to carry out day to day activities.[68]The response is at page 69 from Dr Pugsley who was not the Claimant’s regular GP. Many of the consultations had been taking place over the telephone because of the Coronavirus pandemic but she was most usually seen by Dr Sudall. The Report from Dr Pugsley stated that the Claimant was suffering from anxiety and recounts the Reports and the history that is set out in the GP’s Medical Records. He recounts that the Claimant was frequently assessed as having no red flag symptoms which the Claimant explained to be symptoms that would cause concern about the Claimant’s safety or the safety of those around her given that she was diagnosed with anxiety and the role that she had. Dr Pugsley said it was not possible to assess when the Claimant would be ready to return to work full time but said that she had not reported being unable to carry out any normal day to day activities, “but finds the pressure of work a trigger of her anxiety”.[69]Both Mrs Bell and Mr Vuckovic accepted that the Claimant had discussed this letter with Mr Vuckovic and had explained to him in some detail that she did not think that it accurately set out the effects on her of her ongoing illness, or the way that she had reported those to the GP. The reference in paragraph 62 above in the GP consultation of 9 May 2022 to the Claimant needing a letter for work can only be a reference to the letter at page 71 dated 25 May 2022 which is directed to the Claimant at her home address. In that Dr Sudall says, “This is to confirm that you have been undergoing investigations and receiving treatment for significant stress, anxiety and physical exhaustion. Although there has been marked improvement to your symptoms particularly your mental health, unfortunately a lot of your physical symptoms do persist, although you do report having good and bad days. Your physical exhaustion is very debilitating and you have also been noticing reduced muscle strength. Although you are making slow but positive steps forward in your recovery, it will still take time and I do hope this is taken into consideration for you, particularly with regards to work so that you can be supported and allow your recovery process to continue.”[70]Ms Constantine says that she placed a copy of this letter into Mr Vuckovic’s in tray. The evidence of both Mr Vuckovic and Mrs Bell was that they had not seen this letter until it appeared in the Hearing file. However, both accepted that the Claimant challenged contemporaneously the original GP’s Report as being insufficient and not adequately describing the effects of tiredness and muscle weakness on her. Furthermore, when Mr Vuckovic was asked about page 71 in cross examination he said, “I don’t dispute a lot of it overlapping in what you have said … In my view you have expressed serious dissatisfaction with the previous letter saying it doesn’t address the core problem, it caused you quite a lot of agitation and anger.”[71]There was a further meeting on 22 June 2022 at which, amongst other things, the contract was discussed and the Respondent was going to look into issuing a new contract for a three and a half day week with two in six weekends, specifying that when the Claimant worked the weekend the day she worked during the week would be reduced “to cover the weekend work”. This was because there was a maximum working week on her Fit Notes so if she worked 12 hours at the weekend she would not be able to work three ten hour days during the week without doing more than the recommended 35 hour working week. It was agreed that she would not work Friday or Monday if she was working at the weekend. The Claimant told the Respondent that, “she was still not going out when she is off as she spends most of the time sleeping”. (page 183)[72]Page 183 not only contains notes of the meeting of 22 June 2022 but also a meeting of 22 August 2022 where it was recorded that she would still only do consultations at Frimley (again because of the risk of unpredictable tiredness or weakness meaning it was potentially unsafe for her to carry out surgery when she was working alone) and it was still recorded that she was unable to do two full days in a row with a reference of “unpredictability of tiredness”.[73]Following this meeting a proposed contract was sent to the Claimant with a covering letter dated 24 August 2022 (page 75). In that letter, Mrs Bell said, “Please find enclosed two copies of your updated contract of employment with the company.” She asked the Claimant to read and sign both copies of the contract and return one of the signed copies for Mr Vuckovic’s attention.[74]The draft contract starts at page 76. There is a slight difference (compared with that at page 57) in the wording of the preamble which no longer states that the offer letter and Employee Handbook would be contractual documents. Clause 7 provides that the Claimant’s pay would be £23,267.40 payable monthly on or around the last working day of each month in arrears. Clause 10 has been altered to say that her working week will comprise of three days per week according to a rota notified in advance. Clause 11 is a new clause headed “out of hours pay and extra shifts payment” which states, “The surgery will require you to perform a reasonable amount of work in addition to your normal hours of work depending on the needs of the business. You will be paid for extra shifts at your current rate of pay.”[75]The entitlement to a 60 minute paid break remained. The holiday entitlement was still stated to be 36 days in any holiday year and therefore had not been reduced pro-rata. Mrs Bell confirmed that Clause 11 was intended to give flexibility to mean that the Claimant could be rotared to work weekends but only a reasonable amount of work in total and that covered the arrangement that the hours worked during Monday to Friday would be adjusted to make sure that she did not work more than 35 hours a week in total during a week on which she was rotared to work at the weekend. The draft contract does not state how much a day’s pay would be or what the Claimant would be paid for working at weekends.[76]The Claimant queried the calculation by email to Mr Vuckovic (page 84) saying, “I’m assuming there is a misstype on the salary” and saying that what had been discussed was that she would be paid prorata based on her current salary and her old hours of 44 hours per week. She asked Mr Vuckovic to confirm what her full time working salary was per annum but he did not reply to state what the amount of her salary was, simply saying on 28 August. “Your salary remains the same based on your previous salary and prorated at 3 days.”[77]He said that he would ask Mrs Bell to explain the wording but that there had been no intention to change the salary from what she was being paid for her reduced hours.[78]On 9 September 2022 (pages 86 – 87) Mrs Bell wrote to the claimant and explained that she had worked on the basis that a five day working week for 52 weeks of the year was 260 days and that two days worked on each of 17.33 weekends (being one in three weekends assuming 52 weekends in the year) was 34.66 days which she rounded up to 35 days, meaning that she had calculated that there were 295 “days worked in a year”. Dividing that into £44,000 produced a daily rate of £149.15.[79]It appears that, from her return to work onwards, the Respondent had continued to pay the Claimant’s monthly salary of one twelfth of £44,000 but deducted from it the number of days that she was absent on unpaid authorised leave, or unpaid sickness absence. I make that finding based upon an email sent to the Claimant by Mr Vuckovic on 1 February 2023 (page 108) where he states that in July 2021 she had been paid her monthly salary which at the time was £3,491.25 and then deducted eight unpaid sick days at a daily rate of £142.02 per day which had been calculated by dividing the then gross annual salary by 295.[80]The payslips from this period are not in the Hearing file but based on those that are I can accept the Claimant’s evidence that the payslips she received from May 2021 to September 2022 inclusive, did not allow her to see how the Respondent had calculated the income she was receiving and that it was not until August 2022 when they proposed a salary for a three day working week that she was alerted to the fact that they had not calculated what she was owed for the days she was working in the way that she expected.[81]She set out at page 217 a summary of what she believes that she is owed from May 2021 to July 2023. She says that if a daily rate is to be calculated then it should be done with reference to the actual number of days that a full time Veterinary Surgeon was expected to attend at the premises. Mrs Bell agreed that, before the Claimant’s sickness absence, she was working four long days and one in every three weekends. A ‘long day’ is a 10-hour day during which the Veterinary Surgeon had a one hour paid break but may not have been required to work for a full 9 hours depending upon the demands of the day, although they may equally have been expected to stay later if there was an emergency. In essence, the Claimant said that if one was to ignore the number of hours required on any particular working day but treat all days as equivalent regardless of the number of hours the Vet was required to be at work, then one should look at the actual number of days at work. She calculated those to be (52 x 4) + (17.33 x 2). Rounding up the number of weekend days as the Respondent did, the Claimant came to 243 days. There is no more evidence that this was a method of calculating the day’s rate of pay that the parties should be regarded as having agreed from the outset, than there is of either of the two methods of calculation put forward by the Respondent.[82]After the written calculations sent by Mrs Bell on 9 September, Ms Constantine took advice from an Accountant and on 20 September 2022 in the absence of a detailed critique of the figures, Mrs Bell sent a further request for the return of the signed amended contract saying, “If you have not returned your copy by Friday 30 September 2022 and provided you have not challenged or disputed any of the contract terms, it will be implied that by continuing to work as normal, you have accepted the contract terms.”[83]On 25 September 2022, (page 90) the Claimant wrote to Mrs Bell saying that the situation remained under review. Mr Vuckovic replied to say that he was sorry to hear that there was still concerns and it would be more productive to know exactly what they were so that they could answer them in writing. On 30 September 2022, Mrs Bell wrote (page 93 at 11:22) saying that the Respondent had not received any further information about the review, “…therefore if we don’t hear from you by close of play today we will assume as stated in your letter dated 20 September you have accepted the new contract terms.”[84]This was an error and Mrs Bell intended to refer to her own letter of 20 September. The Claimant responded within a couple of hours saying that she thought she would have had an update for Mrs Bell but that the review was still ongoing because the information had been sent to an accountant whose opinion she was waiting for.[85]Ultimately, the claimant set out her review in four pages of calculations and analysis by her brother (page 210) which are followed by the accountant’s analysis. In essence, the Claimant was querying why 295 working days was used as the denominator for calculating the daily rate when she did not work on 295 days in the year. Alternative ways of calculating a daily rate were set out.[86]These pages were handed to Mrs Bell at a meeting on or about 12 October 2022. It was pointed out in them that if one worked backwards from a salary of £23,265 to the Claimant’s old working hours of four days and one in three weekends, the total salary would be £36,193.73 rather than the £44,000 that she was contracted to receive. This discrepancy suggested to the author that the method of calculating the pro-rata proposed salary for the contract variation was flawed. Instead of a notional number of working days, they proposed using the working hours of 44 hours a week as the baseline for calculating pay as those were the hours that the Claimant has always worked (see second full paragraph on page 211). Using that method, they said that a £44,000 gross annual salary was £19.23 an hour and a daily rate of £192.31 for a 10 hour day. This caused them to say that a pro-rata contract for a 3 day 30 hour a week contract would be £30,000 per annum gross and outlined that compared with £30,000 a contract of £23,267 was a 22.4% pay cut.[87]At the top of page 212 there is reference to something the Respondent had told the Claimant, which was that within her annual salary she was being paid for Wednesdays despite not working them and that this was what justified taking a notional five day working week. It was pointed out in the document handed to Mrs Bell on 12 October 2022 that if so, then that was a contractual benefit despite not being mentioned in the written document and should itself be pro-rated in any contract variation. At page 213 there are tables which set out what it is said the correct pay should have been based on the hours worked in the months from August 2021 to July 2022 on the basis that in order accurately to calculate an hourly rate of pay, the annual salary should be divided by the average number of hours the Claimant was contracted to work multiplied by 52, to achieve the total number of hours she was contracted to work in the year. Quite significant differences over those months are set out in those tables.[88]According to Mrs Bell, there was not much discussion of the Claimant’s position in the meeting on 12 October 2022, at which Mr Vuckovic was also present (see Claimant’s Witness Statement para 35).[89]That corresponds to the Claimant’s description that Mrs Bell and Mr Vuckovic were dismissive of this data. On Mrs Bell’s account they took those figures back to their own Accountants and Legal Advisors. The response to those detailed workings is in an email of 20 October 2022 (page 97) in which she told the Claimant that the Respondent had met with their Accountants and HR Consultant and “they confirm a daily rate is used for annual salaried employees”.[90]They then recalculated “your daily rate”, “working from your full time contract you work four days and 2:6 weekend, you have Wednesday off a week in lieu of you working the weekends.”[91]This led to adopting a notional five day working week which amounted to 260 days in the year. Dividing that into a gross salary of £44,000 led to a daily rate of £169.23. The email concludes by saying that the calculations have been confirmed by the Accountants and the HR Consultants and an Addendum to the contract would be issued to show “your new prorata salary”.[92]As Mrs Bell accepted in evidence, the argument that the calculation should be done on the basis of average working hours was not responded to nor that what was proposed would lead to a 22.4% pay cut. The table setting out the differences between what the Claimant was paid and what she would have been paid had her salary during her phased return and short term working been calculated on the basis of working hours, was not responded to. The tone of this email is very much take it or leave it in the sense that it is asserted that this is what the calculation should be, it leads to a three day a week salary of £26,399.88 and it does not invite any further consultation.[93]The Claimant had not received an Addendum so on 7 November 2022 she sent a WhatsApp message to Mr Vuckovic and asked him why she had not received the Addendum (see Witness Statement para 38). Mrs Bell then sent an email at page 98 attaching an Addendum at page 105 stating, “As no communication has been received I presume you are in agreement with the calculations.”[94]In her paragraph 39 the Claimant explains that she was distressed that she was concerned she had been underpaid for 18 months and there had been no response to that.[95]The Claimant responded on 15 November 2022 (pages 97 – 98). She pointed out that she had originally been assured that the calculation with 295 as the denominator was correct and it had subsequently been submitted that 260 should be used as the denominator making a difference of “over £20 per day” in the Respondent’s asserted daily rate. She goes on to say, “Whilst it is positive this has allowed the part time salary to be corrected, the greater concern currently is that I have been paid incorrectly since returning to work part time in May 2021”.[96]She asks for clarity on five matters before signing the proposed contract. She asks for the daily rate of £169.23 to be added to the contract and for the current full time salary (the full time salary for the position that was to be prorated) to be added to the contract wording. She also queried the question about how weekend working was to be calculated, suggesting that weekend working should be paid at one and a half day’s pay and explained that she made that presumption since that was the only way she was able to work back to a £44,000 full time salary from the £169.23 daily rate. She also seeks a review of her pay from May 2021, addressing the question of whether any money was owed and for the holiday entitlement in the contract to be prorated.[97]I note that the document at page 105 merely changes the amount of the salary and states, “All other terms and conditions of your contract of employment will remain the same.” It is therefore unclear whether the presumption is that the draft amended contract – which included the new Clause 11 – at page 76 was to be the Claimant’s contract or whether it was a reference back to page 57. This was not something explored with Mrs Bell in cross examination.[98]It does not seem to me to be reasonable to understand the Claimant’s response as to be an acceptance of a daily rate of £169.23 for all work she was to carry out under the varied contract, because she is challenging whether weekend working should be paid at the same rate and she is challenging, in effect, whether this still equate to a validly pro-rated £44,000 full time salary. Mrs Bell replied on 25 November 2022 addressing some other points in the Claimant’s email and then said, “Please can you confirm in writing that you accept our calculations, once agreed your backpay will be calculated, also once confirmed we would be happy to discuss any potential changes to terms.”[99]Ms Constantine explains that she read this as being a statement that once she accepted the Respondent’s calculations, then her backpay would be calculated when she understood then to have accepted that her pay had been calculated on the basis of an incorrect daily rate.[100]It was put to the Claimant in cross examination that when her monthly salary had been calculated by deducting a daily rate calculated using a denominator of 295, that had resulted in a smaller deduction than would have been the case had a daily rate calculated using a denominator of 260 been used. What was put to her was that days absence had been deducted at a full day rate using the 295 denominator and half days had been deducted at half that rate. However, there is no supporting documentary evidence to confirm that and the Claimant was not in a position to know how her pay had been calculated. It is not clear at what time the Respondent moved to pay the Claimant for the hours she attended at work, rather than by deducting from her monthly salary the hours she had not attended. Mrs Bell’s oral evidence was that in April 2022, “I just went to putting down the days that you worked” and said there had not been a particular conversation where the Claimant had agreed that that should be done.[101]In March 2023, the Claimant started to complete time sheets.[102]In summary the method of calculating the Claimant’s pay from May 2021 to December 2022 was not transparent. Furthermore, it was not done following an open discussion with the Claimant about how the calculation should be done and the contract did not provide for any particular methodology.[103]The Claimant repeated her question about whether Saturdays and Sundays equated to one and a half day’s pay, by email on 29 November 2022 (page 99). On 4 December 2022, (page 100) she said that she could not accept the calculations as they were, in particular saying that she did not see that the proposed salary was an accurate pro-rata salary for her full time salary of £44,000. She said that using the actual days worked, the daily rate should be £181.07 or £181.32.[104]On 3 January 2023, Mr Vuckovic emailed (pages 100 – 101) saying that they had checked the calculation again with their advisors and stated that as a company they, “…have agreed to calculate all full time vet salaries based on working 260 days a year. Veterinary practices do differ; however this approach is not wrong, and is agreed upon in your full time contract.”[105]Pausing there, if an employee works Monday to Friday then they are contracted to work 260 days in a year. It is quite possible for an employee and an employer to agree that, where days in a week on which the employee works vary from week to week, or the number of hours worked varies from week to week, where a calculation of a daily rate of pay is necessary for payment of a contractual benefit (or deduction of unpaid leave), that should be done on the basis of 260 days in a year. Provided that using such a calculation does not conflict with any statutory rights, for example under the Part Time Workers Regulation 2000 or the Working Time Regulations 1998, the parties are at liberty to agree a notional working week for simplicity. Mr Vuckovic seems to be saying in his email that that is a practice the company has adopted. However, his assertion is at odds with the way the calculation was originally carried out and it is not the case that it is agreed in the Claimant’s contract. I reject the Respondent’s evidence that it was a contractual arrangement in this case.[106]He goes on to say in the email (page 101) that Wednesday is a paid day off for weekends worked and adds this, “We corrected your daily rate to £169.23 when the error was noticed. Your back pay therefore will be calculated on this rate and will be paid to you in January 2023 subject to agreeing and bringing this matter to a close.”[107]The Claimant, therefore, reasonably understood Mr Vuckovic to be saying that the Respondent accepted that they had miscalculated her pay and owed her back pay but that paying her back pay was subject to her reaching agreement on the figure they asserted to be correct for the contract variation. The Respondent did not pay the Claimant the difference between what she had been paid and what she would have been paid had her daily rate been £169.23 until after the end of her employment in June 2023.[108]When Mrs Bell was asked about this, the Claimant asked her if she agreed that the re-calculation of the rate in October 2022 meant that there was back pay owed and she said, “From October 2022 when we re-calculated the days, yes.”[109]She also agreed that the back pay was paid in June 2023. However, when it was suggested to her by the Claimant that the Respondent had withheld the money from October 2022 until June 2023, she said, “We didn’t withhold it. We went through meetings trying to find a means to an end of the 260 days.”[110]I understood her to say that they were trying to achieve agreement to the Claimant’s salary for the contract variation being calculated on the basis of 260 days. When she was asked why there was a connection between getting the contract variation sorted out for the future and paying what was owed for the past, she said that she thought it was that the Claimant still did not accept the 260 days. The sum that was paid in June 2023 was a gross payment of £5,521.63 and a net payment of £3,745.70.[111]Following the email of 3 January 2023, the Claimant asked to arrange a meeting at which she would like to be accompanied by Mr Clare. This took place on 12 January 2023 and on 19 January 2023 the Claimant wrote setting out months for which her record did not agree with the Respondent’s records about the days that she had worked. She also took legal advice from a Solicitor and put in a Grievance on 14 March 2023 (page 128). Her Solicitors had written a ‘without prejudice’ letter on 10 March 2023 and Mr Vuckovic said that it was being dealt with internally through the Grievance Procedure.[112]The Claimant’s pay was increased by 3% to £45,320 with effect from 1 March 2023 and she was told (page 119) that that would mean a daily rate of £174.30. It is also clear that there was other correspondence in early February (for example page 109) about the detail of the calculations of what was said to be an under payment in previous months.[113]Mr Vuckovic conducted the Grievance investigation at a meeting that was taped and transcribed (page 136). The Claimant read from some preprepared notes, including a statement that she believed on the basis of her Solicitor’s advice that the current pay was a breach of contract and she still regarded the daily rate calculated on the basis of 260 days per year as incorrect and unfair.[114]The Grievance Outcome is in a letter dated 17 March 2023 (page 142). Mr Vuckovic did not uphold the Grievance repeating that, “As a company all full time employees are deemed to work 260 days a year”.[115]The Claimant explains in her paragraph 64 that she did not consider this to answer the questions raised. For example, she did not have an explanation as to how the original calculation with a denominator of 295 had occurred if the company always based full time Vet salaries on a denominator of 260 days. She regarded the statement by Mr Vuckovic that by saying she worked 243 days a year she considered herself to be a part time worker, “…showed DV had a complete lack of understanding of my grievance or that DV was being deliberately obtuse. Over the eight months that this had being going on I had time and again referred to myself and my work schedule before getting ill as full time.”[116]Mr Vuckovic did say in the Grievance Outcome that had she been regarding herself as part time she would have been over paid. The Claimant thought this was insensitive, given that it was accepted at this point that she was still owed thousands of pounds in back pay. That had been a significant part of the discussion, as can be seen from the Minutes at page 136 and indeed, was in the wording of the Grievance itself (page 128). She states there she has a complaint, “…about the value of, and method used to calculate, my pro-rata pay since returning to work after being off sick … I believe there is a breach of the Part Time Worker Regulations and an unlawful deduction from wages. I am working under protest.”[117]The Grievance Outcome asserts that the Claimant, contrary to her statement, had received an apology by Mrs Bell during the meeting, “on which you presented your six page document from your accountant at Frimley Green 19 October 2022”.[118]That meeting had been on 12 October and it was a four page document from her brother (page 213) with a one page document from the Accountant (page 215). Setting that to one side, Mrs Bell had scant recollection of having given an apology so I prefer the Claimant’s account that none was proffered.[119]Mr Vuckovic said that no further action would be taken and that the Respondent believed the salary had bee recalculated correctly.[120]The Claimant resigned on 21 April 2023 (page 156), the same day that she appealed against the Grievance Outcome (page 144). In the Appeal Letter she states that the value suggested in the discussions about the pro-rata rate are not proportional to her annual salary and results in an overall pay deduction. She states that it could not be demonstrated that the pro-rata rate relied on by the Practice – the basis of the contract variation – would equate to her current annual salary were she to return to a full time working schedule. She states in the penultimate paragraph that the Grievance Meeting was, “a monologue from myself” and therefore had not been a discussion about the matters in dispute, so she intended to begin Early Conciliation through ACAS. She explained in the final paragraph of the Appeal that given what she had set out in that Appeal document and all of the events over the last eight months, she felt she could no longer work as an employee. No further details of the reason for her resignation are set out in that resignation letter.[121]The Appeal Outcome is dated 31 May 2023 (page 162). It contains the following paragraph, “Having carefully considered the matters that you have raised, I have decided not to partially uphold your appeal because and pay out monies owed to you at a new daily rate of £169.26 prior to your pay rise on 1st of March 2023 and the daily rate of £174.30 following this increase.”[122]Despite the wording of that paragraph, given that the payment was then made in the June salary, it appears that in fact Mr Vuckovic decided to partially uphold the Appeal. The Respondent’s witnesses do not themselves appear to have actually accepted that those sums were owed, they stated in oral evidence that they had been advised to make the payment.[123]I accept that the reasons set out in paragraph 76 of the Claimant’s Witness Statement were all effective causes of her decision to resign, and so was the lack of response in the Grievance Outcome letter to the Claimant’s question about why the pay had originally been calculated on the basis of a denominator of 295 days. The details of her reasons include:a. that Mr Vuckvic’s response in his email of 28 August 2022 did not engage with the Claimant’s precise question about her full time salary;b. being sent an email on 30 September 2022 which presumed that by the end of the day, if she had not objected, that the rate of pay (subsequently accepted to be incorrect) would be the rate under which she would work thereafter;c. that she was not given detailed answers to the calculations that she produced at the meeting of 12 October 2022, including the calculation based of working hours. Although it might be said that none of the correspondence or contractual documentation suggests that working hours should be the basis of the calculation, the reason for the query was that the Claimant was unable to work backwards from the proposed pro-rated salary to her full time salary and it was therefore, effectively, a criticism of that calculation. The Respondent simply restated their position without explaining why the Claimant’s critique was inaccurate. Law applicable to the issues in dispute Time limits under the Equality Act 2010[124]Section.123 EQA provides that, subject to the effect on time limits of early conciliation, proceedings on a complaint within Part 5 of the EQA (which relates to employment) 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.”[125]Conduct extending over a period is to be treated as done at the end of the period. A failure to act is to be treated as occurring when the person in question decided upon the inaction and that date is assumed to occur, unless the contrary is proved, when the alleged discriminator does an act inconsistent with the action which it is argued should have been taken or when time has passed within which the act might reasonably have been done.[126]The discretion in s.123(2) to extend time is a broad one but it should be remembered that time limits are strict and are meant to be adhered to. The burden is on the claimant to persuade the Tribunal that the discretion should be extended in her favour: Robertson v Bexley Community Services: [2003] I.R.L.R. 434 CA. There is no restriction on the matters which may be taken into account by the tribunal in the exercise of that discretion and relevant considerations can include the reason why proceedings may not have been brought in time and whether a fair trial is still possible. The tribunal should also consider the balance of hardship, in other words, what prejudice would be suffered by the parties respectively should the extension be granted or refused?[127]In British Coal Corporation v Keeble [1997] IRLR 336 the EAT advised that tribunals should consider, in particular, the following factors:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had cooperated with any requests for information;(d) the promptness with which the claimant had acted once he or she had known of the facts giving rise to the cause of action; and(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she had known of the possibility of taking action. The meaning of disability[128]A person has a disability, for the purposes of the Equality Act 2010 (or hereafter the EQA), if they have a mental or physical impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.[129]The term “substantial” is defined by Section 212(1) EQA as meaning “more than minor or trivial”. It sets therefore, a fairly low threshold for a Claimant who bears the burden of proving that she is a disabled person for the purposes of the EQA (see Kapadia v London Borough of Lambeth [2000] IRLR 699 CA). As was explained by the EAT (Langstaff J presiding) in Aderemi v London and South Eastern Railway Ltd [2013] ICR 591: “14. It is clear first from the definition in section 6(1) of the Equality Act 2010, that what a tribunal has to consider is an adverse effect, and that it is an adverse effect not upon carrying out normal day-to- day activities but upon his ability to do so. Because the effect is adverse, the focus of a tribunal must necessarily be upon that which a claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a tribunal has then to assess whether that is or is not substantial. Here, however it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation; unless a matter can be classed as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”[130]What the employee is not able to do or is only able to do slowly or less easily is frequently taken into account to decide whether there is disability: Ekpe v Commissioner of Police of the Metropolis [2001] I.R.L.R. 605 @ 608 para 27. Furthermore, the EAT gave guidance on evaluating the adverse effects of an impairment in Goodwin where they said, “The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves. ”[131]As it says in paragraph B1 of the Guidance on the definition of disability (2011), this requirement reflects the general understanding that disability is a limitation going beyond the normal differences which exist among people.[132]When considering whether the adverse effects on the claimant’s ability to carry out day-to-day activities are substantial the following factors are taken into account (see the Guidance Section B),a. The time taken to carry out an activity,b. The way in which an activity is carried out,c. The cumulative effects of impairments,d. How far a person can reasonably be expected to modify his or her behaviour by the use of a coping or avoidance strategy to prevent or reduce the effects of the impairment,e. The effects of treatmentf. There may be indirect effects, such as that carrying out certain dayto-day activities causes pain or fatigue (See Guidance on definition of disability (2011) paragraph D22).[133]In the Court of Appeal’s decision in All Answers Ltd v W [2021] EWCA Civ 606, their summary of the relevant law is at paras 24 to 26: “24. A person has a disability within the meaning of section 6 of the 2010 Act if he or she(1) has a physical or mental impairment which has(2) a substantial and(3) long term adverse effect on that person’s ability to carry out day to day activities…. 25. Paragraph 2(1)(b) of Schedule 1 to the 2010 Act defines long term, so far as material to this case, as “likely to last at least 12 months”. “Likely” in this context means “could well happen”: see Boyle v SCA Packaging Ltd. [2009] UKHL 37, [2009] ICR 1056,... 26. The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in McDougall v Richmond Adult Community College: see per Pill LJ (with whom Sedley LJ agreed) at paragraphs 22 to 25 and Rimer LJ at paragraphs 30-35. That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. I note that that interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months, “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”.[134]The EQA provides that, where an impairment is being treated, then it is to be regarded as having a substantial adverse effect if, but for the medical treatment, it is likely to have that effect (Sch 1 para 5(2)). However, where the effect of continuing medical treatment is to create a permanent improvement rather than a temporary improvement it is necessary to consider whether, as a consequence of the treatment, the impairment would cease to have a substantial adverse effect (See 2011 Guidance at B16 and C11). And C5 and following.[135]Although the case of J v DLA Piper [2005] I.R.L.R. 608 EAT is frequently cited when considering alleged mental impairments, paragraphs 40 of the judgment of Underhill LJ is also of more general application, “40: Accordingly in our view the correct approach is as follows:(1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin.(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in paragraph 38 above, to start by making findings about whether the claimant's ability to carry out normal day-today activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.”[136]In closing remarks, Ms Constantine relied upon the stated impact on her ability to attend work and carry out the role of veterinary surgeon. The Guidance explains (paragraph D3 & D4, D8 – D10) that highly specialised activities would not normally be regarded as day-to-day. However, “many types of specialised work related activities may involve normal day-to-day activities such as sitting down, standing up …” (para.D10) Direct discrimination[137]The claimant alleges that the respondent deliberately withheld money owed to her between October 2022 and June 2023 and that doing so was disability discrimination contrary to s.13 EQA which prohibits direct discrimination. Direct discrimination contrary to s.13, for the present purposes, is where, by subjecting their employee to a detriment, the employer treats A less favourably than they treat, or would treat, another employee (B) in materially identical circumstances apart from that of disability and does so because of A’s disability.[138]All claims under the EQA (including direct discrimination, discrimination for a reason arising in consequence of discrimination, victimisation and harassment) are subject to the statutory burden of proof as set out in s.136. This has been explained in a number of cases, most notably in the guidelines annexed to the judgment of the CA in Igen Ltd v Wong [2005] ICR 931 CA. In that case, the Court was considering the previously applicable provisions of s.63A of the Sex Discrimination Act 1975 but the following guidance is still applicable to the equivalent provision of the EQA.[139]When deciding whether or not the claimant has been the victim of direct discrimination, I must consider whether she has satisfied me, on the balance of probabilities, of facts from which I could decide, in the absence of any other explanation, that the incidents occurred as alleged, that they amounted to less favourable treatment than an actual or hypothetical comparator did or would have received and that the reason for the treatment was disability. If I am so satisfied, then I must find that discrimination has occurred unless the respondent proves that the reason for their action was not that of disability.[140]I bear in mind that there is rarely evidence of overt or deliberate discrimination. As mentioned in the authority relied on by Mr Franklin (Talbot v Costain Oil, Gas and Process Ltd [2017] ICR D11 EAT), I need to make findings about any core events or primary facts and may need to look at the context to those events to see whether there are appropriate inferences that can be made from the facts as I have found them to be. I also bear in mind that discrimination can be unconscious but that for me to be able to infer that the alleged discriminator’s actions were subconsciously motivated by disability I must have a sound evidential basis for that inference.[141]The provisions of s.136 have been considered by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 UKSC – and more recently in Efobi v Royal Mail Group Ltd [2021] ICR 1263 UKSC. Where the employment tribunal is in a position to make positive findings on the evidence one way or the other, the burden of proof provisions are unlikely to have a bearing upon the outcome. However, it is recognized that the task of identifying whether the reason for the treatment requires the Tribunal to look into the mind of the alleged perpetrator. This contrasts with the intention of the perpetrator, they may not have intended to discriminated but still may have been materially influenced by considerations of disability. The burden of proof provisions may be of assistance, if there are considerations of subconscious discrimination but the Tribunal needs to take care that findings of subconscious discrimination are evidence based.[142]Furthermore, although the law anticipates a two stage test, it is not necessary artificially to separate the evidence adduced by the two parties when making findings of fact (Madarassy v Nomura International plc [2007] ICR 867 CA). I should consider the whole of the evidence when making my findings of fact and if the reason for the treatment is unclear following those findings then I will need to apply the provisions of s.136 in order to reach a conclusion on that issue.[143]Although the structure of the EQA invites me to consider whether there was less favourable treatment of the claimant compared with another employee in materially identical circumstances, and also whether that treatment was because of the protected characteristic concerned, those two issues are often factually and evidentially linked (Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL). This is particularly the case where the claimant relies upon a hypothetical comparator. If I find that the reason for the treatment complained of was not that of disability, but some other reason, then that is likely to be a strong indicator as to whether or not that treatment was less favourable than an appropriate comparator would have been subjected to.[144]In disability cases, the appropriate comparator must resemble the claimant in all material respects save only that they do not share the claimant’s protected characteristics. This has been interpreted to mean that they should share the same abilities as the disabled person but not be disabled: s.23(2)(a) EQA and paras 3.29 and 3.30 of the EHRC Code of Practice on Employment (2011). Discrimination arising from disability[145]Section 15 EqA provides as follows: “15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[146]Discrimination arising from disability is where the reason for the unfavourable treatment is something arising in consequence of disability. The example given in the EHRC Code of Practice on Employment (2011) (hereafter the EHRC Employment Code), is dismissal for disability related sickness. Another might be a requirement that an employee take annual leave to attend medical appointments for a disabling condition; they need regular absences for medical treatment in consequence of their disability and they are required to take annual leave to do that. It should not be forgotten that the treatment must be unfavourable nor that the defence of justification is available in claims of s.15 discrimination. “In considering whether the example of the disabled worker dismissed for disability-related sickness absence amounts to discrimination arising from disability, it is irrelevant whether or not other workers would have been dismissed for having the same or similar length of absence. It is not necessary to compare the treatment of the disabled worker with that of her colleagues or any hypothetical comparator. The decision to dismiss her will be discrimination arising from disability if the employer cannot objectively justify it.” EHRC Employment Code paragraph 5.6.[147]The importance of breaking down the different elements of this cause of action was emphasised by Mrs Justice Simler in Pnaiser v NHS England [2016] I.R.L.R. 160 EAT at paragraph 31, “the proper approach can be summarised as follows:(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant […].(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.(e) For example, in Land Registry v Houghton UKEAT/0149/14, [2015] All ER (D) 284 (Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g)[…]. (h) Moreover, the statutory language of s.15(2) makes clear […] that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the 'something' leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. […] (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of 'something arising in consequence of the claimant's disability'. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to 'something' that caused the unfavourable treatment.”[148]The test of justification is an objective one, according to which the employment tribunal must make its own assessment: see Hardy & Hansons plc v Lax [2005] ICR 1565 , paras 31–32, and Chief Constable of West Yorkshire Police v Homer [2012] ICR 704 , paras 20, 24–26 per Baroness Hale of Richmond JSC, with whom the other members of the court agreed. This requires the employer to show that the treatment is objectively justified, notwithstanding its discriminatory effect on the employee: Hardy & Hansons para.32. The Tribunal has to take into account the reasonable needs of the business but should: “make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary”. (ibid)[149]What is required is an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition. This is for the respondent to prove and “they must produce evidence to support their assertion that the treatment is justified and not rely on mere generalisations” (EHRC Code para.5.12).[150]The test for objective justification contrasts with that of the ‘band of reasonable responses’; the Tribunal emphatically is not considering whether no reasonable employer would have acted as this employer did but whether this employer has shown that their treatment of this claimant was genuinely done to achieve an aim assessed by the Tribunal as a legitimate business aim; whether the treatment was apt to achieve that aim and whether it was reasonably necessary with a view to achieving that aim.[151]The other potential defence is lack of knowledge of disability. This requires the respondents first to show that they did not know and could not reasonably have been expected to know that the claimant was disabled (constructive knowledge is discussed in the case of Gallop v Newport City Council [2013] EWCA Civ 1583 CA). That means that they knew or ought to have known the facts amounting to all three elements of the definition: the physical or mental impairment; the substantial and long-term adverse effect and that the adverse effect is on the employee’s ability to carry out normal day-to-day activities (see Gallop para.36.) The EAT when applying Gallop said that what is required is that the respondent knew or ought reasonably have known of the underlying facts which amounted to the disability and the effects of it, not of the condition itself: Urso v Department for Work & Pensions (UKEAT/0045/16 para:55).[152]In Gallop, the employer had accepted without question the opinion of an occupational health practitioner that the employee was not a disabled person within the meaning of s.6 EQA. The Court of Appeal held that it was the employer who was required to make the factual judgment as to whether or not an employee was disabled. The employer has a duty to do all that it reasonably can to find out if an employee has a disability. Constructive Dismissal[153]Section 95(1)(c) of the Employment Rights Act 1996 makes it clear that a dismissal includes the situation where an employee terminates the contract of employment (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. This is commonly referred to as constructive dismissal and the leading authority is Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 CA. If the employer is guilty of conduct which goes to the root of the contract or which shows that he no longer intended to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance of it. The employer’s conduct must be the cause of the employee’s resignation and thus the cause of the termination of the employment relationship. If there is more than one reason why the employee resigned then the tribunal must consider whether the employer’s behaviour played a part in the employee’s resignation.[154]In the present case the claimant argues that she was unfairly dismissed because she resigned because of a breach of the implied term of mutual trust and confidence; a term implied into every contract of employment. The question of whether there has been such a breach falls to be determined by the authoritative guidance given in the case of Malik v BCCI [1998] AC 20 HL. The term imposes an obligation that the employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. One question for the tribunal is whether, viewed objectively, the facts found by me amount to conduct on the part of the respondent which is in breach of the implied term as explained in Malik v BCCI. Whether the employment tribunal considers the employer’s actions to have been reasonable or unreasonable can only be a tool to be used to help to decide whether those actions amounted to conduct which was calculated or likely to destroy or seriously damage the relationship of trust and confidence and for which there was no reasonable and proper cause.[155]If that conduct is a significant breach going to the root of the contract of employment (applying the Western Excavating v Sharp test) and the employee accepted that breach by resigning then she was constructively dismissed. The conduct may consist of a series of acts or incidents which cumulatively amount to a repudiatory breach of the implied term of mutual trust and confidence (see Lewis v Motorworld Garages Ltd [1986] ICR 157).[156]Once she has notice of the breach the employee has to decide whether to accept the breach, resign and claim constructive dismissal or to affirm the contract. Any affirmation must be clear and unequivocal but can be express or implied.[157]An authoritative explanation of the last straw doctrine is found in the judgment of Dyson LJ in Omilaju v Waltham Forest London BC [2004] EWCA Civ 1493, [2005] IRLR 35, [2005] 1 All ER 75, [2005] ICR 481 CA. Omilaju is often referred to for the description by Dyson LJ of what the nature of the last straw act must be in order to enable the claimant to resign and consider him or herself to have been dismissed. “The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase "an act in a series" in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.” (paragraph 19)[158]The doctrine was also considered by the Court of Appeal in Kaur v Leeds Teaching Hospital [2018] IRLR 833 CA. Having discussed the development of the authorities in this area, Underhill LJ gave the following guidance, “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory)6 breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para [45], above.)(5) Did the employee resign in response (or partly in response) to that breach? None of those questions is conceptually problematic, though of course answering them in the circumstances of a particular case may not be easy.” (paragraph 45)[159]I must determine whether the repudiatory breach of contract was an effective cause of the resignation: it does not need to be the only or even the main cause of the claimant’s decision to resign so long as it is an effective cause of it.[160]If I find that the claimant was dismissed, I should go on to consider what was the reason for the dismissal (which in the case of constructive unfair dismissal is the reason for the breach of contract), whether it was a potentially fair reason and whether the dismissal was fair or unfair in all the circumstances. In the present case, no positive case is put forward by the respondent that, if the claimant shows there was a dismissal, the dismissal was fair. Unauthorised deduction from wages claim[161]Relevant provisions of the ERA include: “13.— Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision” , in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer. … 23.— Complaints to [employment tribunals]. (1) A worker may present a complaint to an employment tribunal — (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), (b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)), (c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or (d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1). (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, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, 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) applies 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. (4A) An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. (4B) Subsection (4A) does not apply so far as a complaint relates to a deduction from wages that are of a kind mentioned in section 27(1)(b) to (j). (5) No complaint shall be presented under this section in respect of any deduction made in contravention of section 86 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deduction of political fund contribution where certificate of exemption or objection has been given). 27.— Meaning of “wages” etc. (1) In this Part “wages” , in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, (b) …” 161. The question of whether a payment is payable may require the employment tribunal to resolve any issue as to the meaning of a contract of employment, including questions of interpretation and implication: Agarwal v Cardiff University [2019] ICR 433 CA. The tribunal must decide on the ordinary principles of common law and contract law the total amount of wages that was properly payable to the worker on the occasion and it may involve consideration of all relevant terms including any implied terms.[162]Contractual terms may be expressly agreed (either orally or in writing), incorporated with reference to rules governing particular aspects of the employment relationship or stem from statutory provisions. The existence of terms may be inferred from the conduct of the parties: if they have consistently behaved as though they had particularly legal obligations that is evidence that that must be what they agreed. Terms may also be implied into the contract where the parties must be taken to have agreed them because, for example, they are too obvious to need recording or because they are custom and practice in a particular trade or industry at the time the contract was entered into. The classic description of that sort of term is that it must be “reasonable, notorious and certain”. Terms can be implied if they are necessary to give “business efficacy” to the agreement as a whole. A term may be implied if it is necessary to do so in order to make it workable as a whole. The test is whether it is necessary, not simply reasonable or desirable and the doctrine does not apply where it is only necessary to one isolate aspect of the whole agreement.[163]In the present case, both parties are, in effect, arguing that there must be an implied term in the contract about how a day’s pay should be calculated. The legal basis of the respondent’s argument would appear to be that it is necessary to give business efficacy to the Clause 12 provision that the respondent can reduce hours on a proportionate wage, that they can be inferred from the parties’ conduct or, alternatively, that it can be implied as result of custom and practice.[164]Section 23(4A) ERA excludes from the jurisdiction of the employment tribunal so much of a complaint as relates to a deduction where the date of payment was made before the period of two years ending with the date of presentation of the complaint. This subsection applies to a deduction from wages falling within s.27(1)(a) ERA which covers the sums which are the subject of the present dispute. This claim was presented on 3 July 2023. Therefore, if successful, the tribunal is unable to order the respondent to make payments in respect of any deduction where the date of payment of the wages from which the deduction was made was earlier than 4 July 2021. This is likely to exclude May and July 2021 from the tribunal’s jurisdiction.[165]Section 23(2) ERA excludes from the employment tribunal’s jurisdiction deductions made from wages payable on at date more than three months before the date on which the claim was presented (subject to the effects of early conciliation on time limits). However, where a complaint is brought in respect of a series of deductions, time starts to run on the date on which the last deduction in the series was made. For a monthly salary that is not the same as the end of the month for which the payment was made but the date on which wages should have been paid.[166]The question of when there are a series of deductions has been the subject of guidance in Chief Constable of Northern Ireland v Agnew [2023] UKSC 33. Whether there is a ‘series of deductions’ is a question of fact that must be determined by taking into account all relevant circumstances, including the similarities and differences between the deductions; their frequency, size and impact; how they came to be made and what links them together. The facts of Agnew were that the deductions were found to be factually linked by holiday pay having been calculated by reference to the police officers’ basic pay rather than their normal remuneration.[167]What is the relevant law on how a day’s pay should be calculated if the claimant succeeds in showing that the amount she received on any particular occasions was less than it should have been? The starting point is, of course, the contract. I now set out other statutory provisions which were discussed in the hearing as the parties must be taken to have agreed to comply with the law and one might expect the parties to have agreed a contract which complies with particular legislation as to how a weeks pay or pro-rated pay should be calculated in other situations.[168]As set out above, PTWR 2000 reg.1(2) defines the pro-rata principle to mean that a part time worker is entitled to receive not less than the proportion of that pay bears to the number of weekly hours of the comparable full-time worker.[169]Under reg.3 PTWR a worker who was full-time and becomes part time can compare themselves following a variation of contract. There is no complaint under the PTWR 2000 in the present case.[170]Mr Franklin draws attention to the National Minimum Wage Regulations 2015 in CSUBS paras.31 to 34. He argued that the claimant’s contract would amount to salaried hours work under reg.21 NMW Regs 2015. That may be so, but it do not, in my view, illuminate the question of how this claimant’s part time rate of pay should have been calculated in the absence of express written terms.[171]Mr Franklin also correctly points out that the employer is entitled to deduct wages if the employee is absent from work due to sickness absence.[172]For a day’s holiday pay on termination of employment, the legislation expressly stipulates that the amount of the holiday pay should be calculated as set out in the WTR 1998. This reads into the WTR ss.220 to 225 ERA 1996. Section 221(2) reads as follows: “221 General (2) Subject to section 222, if the employee’s Remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.”[173]For the WTR 1998 therefore, the question in a s.221 case is first what are the employee’s normal working hours in a week and then what is payable under the contract of employment if the employee works those hours.[174]On the morning of Day 2 I drew to the parties’ attention the case of Hartley v King Edward the Sixth College [2017] UKSC 39, [2017] I.R.L.R. 763 UKSC. This was a case in which three Teachers had engaged in strike action and the Defendant College had deducted 1/260 of the annual sum of their salary from their pay for the day on which they were on strike. The Claimant brought proceedings contending that the appropriate figures was in fact 1/365. The basis of the Claimant’s argument was the Apportionment Act 1870 which is sited insofar as is relevant in paragraphs 3 and 4 of the Judgment of Lord Clarke.[175]The issues in Hartley are set out in paragraph 8 of Lord Clarke’s Judgment. The central question was how much the employer could withhold from the employee’s pay for each day of strike action. This required the Supreme Court to consider whether “the contracts of employment provided expressly or by necessary implication for their salary to be paid to them pro rata in respect of divisible obligations to perform work on each day of directed time so that [the Apportionment Act 1870] had no application to this case”. They then considered what was meant by Section 2 and Section 7 of the Apportionment Act 1870. Lord Clarke analysed the working time for which the Teachers were contracted and it was a critical feature of Hartley’s case that the contracts were annual contracts with the employees being paid an annual sum in equal monthly instalments.[176]I note in particular paragraphs 28 – 31. Some of that makes clear that there were fact specific matters that were relevant to the decision. In particular the Teachers’ activities were in part carried out in directed time, namely the time and days on which they were to attend work but in part on non-directed time. In paragraph 29 Lord Clarke says the problem in that case with 1/260 is that, “Given that the work done by the teachers described above was not limited to work during week days, it makes no sense to choose a calculation of 1/260 of the annual salary, which assumes only week day working.”[177]He pointed out that Elias LJ in the Court of Appeal had been discussing the figure of 1/190 by analogy with the pay of part time workers. Lord Clarke stated that both that and 1/260 assume that the working days are limited to days on which directed duties were carried out. In Hartley’s case, Lord Clarke stated that the only alternative figure put forward in argument was 1/365. He justified that on the basis of the statutory formula which provided that salary “shall … be considered as accruing from day to day, and shall be apportionable in respect of time accordingly” (para 30 of Lord Clarke’s Judgment)[178]His Lordship therefore stated that the most sensible approach in order to apportion the annual salary on a day to day basis was by treating each day as 1/365 of the annual salary. He said that that achieved an overall approach which was broadly fair because monthly payments were made every month including periods when the Teacher was on holiday and the work carried out was spread throughout the year and not limited to periods when the Teacher was carrying out directed work “but includes preparatory work and the like which can involve working in the evenings and weekends” (para.30). He acknowledged that that could give rise to surprising results but that is almost always true of deeming provisions which were chosen to have a simple rule which could be applied in every case.[179]The principles that I take from Hartley relevant to the present case are that there is a deeming provision in the Apportionment Act 1870 which where it applies means that salary should be taken as accruing from day to day and should be apportionable in respect of time accordingly. It is possible expressly to state that no apportionment should take place and to exclude the provisions of the Act. However, according to paragraph 34 of Lord Clarke’s Judgment, “The correct approach under section 2 to a case like this, where the contract is an annual contract, is to hold that the salary must be apportioned on a calendar day basis over 365 days which yields a daily figure of 1/365.”[180]Lord Clarke went on to say what was meant by an express stipulation that apportionment did not apply (falling within s.7 of the 1870 Act) but I have not been taken to anything in the present contract that suggests anything of the kind. Lord Clarke’s Judgment makes clear that the contract must in clear terms address that issue.[181]In summary in para.41, Lord Clarke stated that: “the amount of the daily rate provided for in section 2 which is to be ‘apportionable in respect of time accordingly’ will depend upon the terms of the particular contract. … absent a provision (I would say an express provision) to the contrary the principle of equal daily accrual will be the obvious principle to adopt. … I am of the opinion that 1/365 is the appropriate rate here. In any case the precise figure will depend upon the true construction of the particular contract. … In this case there is no express (or indeed implied) stipulation excluding the statutory apportionment so that section 7 has no application. A critical feature of the instant case which leads to a figure of a/365 is that the contracts are annual contracts. If the contracts were not annual contracts the position would be very different and would depend upon the terms of the particular contract.” Law relating to remedy[182]Compensation for unfair dismissal is calculated in accordance with ss.122 and 123 ERA. Section 122 sets out the statutory formula for a Basic Award. Section 123 provides that the amount of the compensatory award shall be “such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”[183]S.220 ERA and following sets out how to calculate a week’s pay for the purposes of the ERA. Where employees who do not work the same number of hours or days a week but their remuneration does not vary as a result, s.221(2) applies (see para.172 above). The respondent has not put forward evidence or argument that there should be any adjustment to compensation for failure to mitigate or because of conduct contributing to the dismissal (s.123(6) ERA) or before the dismissal (s.122(2) ERA).[184]Section 227 ERA sets out the maximum week’s pay for calculating the Basic Award. Where, as here, the effective date of termination was after 6 April 2023, the maximum is £643.[185]The law in relation to injury to feelings is well established. We remind ourselves of the case Armitage, Marsden and HM Prison Service v Johnson [1997] ICR 275 EAT where it was said, among other things, that the awards for injury to feeling should be compensatory rather than punitive and that, on the one hand, they should not be so low as would diminish respect for the anti-discrimination legislation but on the other they should not be excessive. We should also remind ourselves of the purchasing power of the value of the award of everyday life and balance that with the need that awards for discrimination should command public respect.[186]The injury must be proved, our findings must be evidentially based and the injury for which compensation is claimed must result from the discrimination which has been proved: MOD v Cannock [1994] IRLR 509 and Alexander v The Home Office [1988] ICR 604.[187]The well-known case of Vento v. Chief Constable of West Yorkshire Police (No. 2) [2003] ICR 318 CA (followed by Da’Bell v. NSPCC [2010] IRLR 19 EAT) set out three bands or brackets into which it was said that awards of this kind could fall. The level of the bands are increased annually by addenda to Joint Presidential Guidance. The 6th Addendum to the Presidential Guidance is applicable to the present case and it provides that the lower band of £1,100 to £11,200 should apply to less serious cases and a middle band of £11,200 to £33,700 to cases which do not merit an award in the upper band. Conclusions on the Issues[188]I now set out my conclusion on the issues, applying the law as set out above to the facts which I have found. I do not repeat all of the facts here since that would add unnecessarily to the length of the judgment, but I have them all in mind in reaching those conclusions. The disability issue[189]I refer back to but do not repeat my findings on the adverse effects that the Claimant experienced on her ability to carry out day to day activities from approximately December 2021 onwards. Her argument is that she should be regarded as being disabled by reason of chronic fatigue, notwithstanding the fact that even at the time of issuing these proceedings and completing her Impact Statement, she did not have a diagnosis of a condition which explained those symptoms.[190]The Respondent’s position is that had the impairment been pleaded as anxiety it would probably have been conceded (see R sub para 57). The Respondent argues that there is evidence of a long term mental impairment of anxiety but no evidence that it had a substantial adverse effect on (her ability to carry out) day to day activities. The Respondents argue that the Claimant’s attempt to increase her working hours and booking appointments for particular patients was inconsistent with there being any substantial adverse effect.[191]In this it seems to me that the Respondent is overlooking that the fact that a person can carry out particular day to day activities does not necessarily mean that their ability to carry them out has not been impaired. See the discussion of Ekpe in para.130 above.[192]When I consider the factors in the Guidance on the definition of disability (see para 132 above) it seems to me that the Claimant has shown that the time taken to carry out particular activities has been adversely affected. She explained that whereas previously she was able to carry out several day to day activities on one day, lower energy and exhaustion means that she would have to choose one. It is a reasonable corollary of that, that that particular activity has taken longer. In addition, the indirect effects should be considered. Doing a particular day to day activity has, I am satisfied, caused the Claimant unusual fatigue. The Respondent says that her presentation at work was not consistent with that described on her days off. However, hat point would be more relevant to the question of their knowledge of the fact of disability than to whether the Claimant did experience excessive or unusual fatigue.[193]Other matters referred to in the Guidance such as the way in which an activity is carried out, are also evidenced in this case. So the Claimant has indicated that she would previously, on occasions, have sat down to reassure anxious patients. On her return to work she explained directly to the Respondent that she was volunteering to be allocated types of work – such as dental work and x-rays – which she could carry out sitting down. She was at work but finding tasks to do within the scope of her job role which she could do sitting down because she needed to do so due to fatigue and pain. In several ways the Claimant has shown that the way she carried out day to day activities, or her ability to do so, has been adversely affected by lack of stamina, low energy and being caused pain.[194]It is true that the GP records do not include notes of her reporting that she was experiencing those specific symptoms. However, when she asked her GP to comment specifically on what she had relayed, the letter at page 71 was written by the GP with whom she had regular interaction. This letter does not contain specific dates, nevertheless it refers to physical exhaustion as very debilitating and reduced muscle strength. These matters are consistent with the steps taken for reasons of patient safety, when the Claimant returned to work, to ensure she would not to operate on her own in case she suffered unpredictable fatigue or weakness. Overall, the Claimant’s account has been consistent and there is sufficient support for it in the documentation that I find that from about December 2020 onwards she started to experience significant fatigue and the adverse effects she describes. She had started a period of sickness absence for anxiety in November 2020 (para.48 above). She was prescribed Sertraline but discontinued that in December 2020. Otherwise unexplained symptoms of muscle weakness and extreme tiredness have persisted since then (see para.49, 51 & 52).[195]These matters were more than trivial in the way that they adversely affected her ability to carry out the relevant day to day activities. As suggested in the case of J v DLA Piper,this is a case in which the existence of the impairment can be deduced from the substantial adverse effects which I have found. To say, as the Respondent does, that they may not challenge whether the adverse effects existed but the Claimant cannot show that she was disabled by reason of chronic fatigue because the diagnosis to which the symptoms were attributed at the relevant time was anxiety, is to take an overly technical approach.[196]However, in order to show that she is a disabled person within the meaning of Section 6, the Claimant additionally has to show that the substantial adverse effects were long term and this was not the case until December 2021, 12 months after the adverse effects began. The Claimant started a phased return to work, working one day a week which over time was increased to three days a week. Her first days back were in May 2021 at which time she had been experiencing these substantial adverse effects of fatigue and exhaustion for at least five months. There were unexplained symptoms and I am not persuaded that there is evidence from which I can infer that as at her return to work they could well have lasted a further 7 months. The Respondent accommodated the working pattern recommended by the GP.[197]The Claimant was disabled within Section 6 of the Equality Act 2010 by reason of chronic fatigue from December 2021 onwards. Knowledge of disability[198]AS a defence to the complaint of discrimination under s.15 EQA, it is for the Respondent to show that they did not have and could not reasonably have had knowledge of the Claimant’s disability.[199]The Respondent has shown themselves to be a flexible and supportive employer in supporting the changing work patterns that were dictated by the medical needs of the Claimant from May 2021 through to her resignation on 21 April 2023. This support causes me to accept Mr Vuckovic’s evidence that they wanted to keep the Claimant as a Veterinary Surgeon who had developed a good rapport with clients and patients.[200]The Respondent asked specific questions of the Claimant’s GP which were answered in the letter at page 69. One of the questions they asked was whether the Claimant had reported to the GP any inability to carry out normal day to day activities and this was answered in the negative (page 70).[201]As against that, the Respondent had their own knowledge directly from the Claimant. In particular some details were set out in the Claimant’s appraisal on 26 January 2022 (page 182) of the pain and unpredictable tiredness that she was experiencing. There are other short notes to the same effect in the June 2022 meeting at page 183. Specifically, the Claimant informed the Respondent that when not at work she was mostly sleeping and she was unable to work two full consecutive days because of “unpredictability of tiredness”.[202]Furthermore, in relation to the GP letter at page 69, Mr Vuckovic and through him Mrs Bell, knew that the Claimant considered that letter not sufficiently to set out the details of physical exhaustion that she was experiencing. Mr Vuckovic accepted that the description of the Claimant’s symptoms relayed by Dr Sudall on page 71, was broadly the same as the Claimant’s own description to him of the same symptoms. Since the Respondent made adjustments such as permitting the Claimant to not be rotared for two full days in a row and supporting her need only to be scheduled consultations (and not procedures) at Frimley (the location at which Vets would work on their own) the Respondent was making accommodations specifically for the effects of unpredictable tiredness and weakness that the Claimant was describing to them. Therefore, it is irrelevant whether they saw the actual letter at page 71 because they were aware of the gist of it directly from the Claimant and they responded as though what she told them was true.[203]The challenges within this litigation to the voracity and reliability of the Claimant’s account of her own symptoms have been shown in a number of respects to be inaccurate. For example, although the Claimant drove the eight minute drive between her own home and the Surgeries and the short drive between the two Surgeries, there are instances of her through WhatsApp informing people generally and Mr Vuckovic specifically that she was experiencing tiredness when driving and was not able to drive on all occasions. Mrs Bell’s evidence in her Witness Statement to the contrary is rejected.[204]For these reasons I conclude that the Respondent knew or ought reasonably to have known from December 2021 that the Claimant was disabled because of long term substantial adverse effects of tiredness on her ability to carry out day to day activities that she had a disabled status.[205]I will leave consideration of time limits until I have expressed my conclusions on the disability discrimination complaint and the unauthorised deduction from wages complaint. Direct disability discrimination[206]The alleged act of direct disability discrimination is that the Respondent deliberately withheld monies owed to the Claimant between October 2022 and June 2023.[207]From May 2021 to about April 2022, the respondent paid the Claimant a monthly salary calculated by deducting from her full time salary 1/295th of her annual salary for every day she was absence. Mrs Bell stated that from April 2022 she had started paying the Claimant for the days she actually worked, rather than deducting from her salary a per diem rate for the days that she had authorised sickness absence which was unpaid. From about April 2022, without any consultation, they started to pay her 1/295th of her annual salary for every day she attended work. As the payslips are not transparent it is not possible to be more particular about when that was.[208]The Claimant has shown that from October 2022 onwards, the Respondent started to calculate the daily rate which it regarded as being the correct rate for her remuneration on a different per diem basis. As a result it increased from £149.15 a day (page 87) to £169.23 a day (page 97). The Claimant had disputed that the former was the correct rate of pay and never accepted that the latter was the correct rate of pay. Nevertheless, on 20 October 2022, Mrs Bell wrote to state that the Respondent considered this to be the correct per diem rate and therefore an appropriate proportionate part time salary for a three day a week contract would be £26,399.88. This email is silent as to whether there should be a recalculation of sums paid up to that point.[209]On 15 November 2022, Ms Constantine wrote to Mrs Bell to express her concern that she had been paid incorrectly since returning to work part time in May 2021 and on 3 January 2023, Mr Vuckovic the Director, stated that back pay would be calculated on the daily rate of £169.23.[210]The Respondent stated on more than one occasion that paying what they described as back pay would be subject to her agreeing the figure they had proposed for the proportionately reduced salary in the contract variation. This is despite the fact that they described the calculation as an error. After they consulted their Accountant and Solicitor, they also stated that the Veterinary Surgery used a “daily rate … for annual salaried employees” and calculated the daily rate on a notional working week of five days, meaning 260 working days in the year (page 97). If that was the Veterinary Surgery’s practice, then the Respondent had no valid basis to say the Claimant’s pay between May 2021 and October 2022 had been correctly calculated. The Respondent was asked why they had failed to pay the sums which, to all intents and purposes, they accepted were due to the Claimant until after her employment ended. The only explanation given before me was Mrs Bell’s that they were “trying to find a means to an end” which I understood to mean a negotiating tactic so that the Claimant would agree the terms of the proposed contract variation.[211]Given those circumstances I think the Claimant has shown that the Respondent deliberately withheld payment between October 2022 and June 2023. The logical and natural consequence of their assertion that they based calculation of a daily rate on 260 days in a year, was that the Claimant’s pay since her return to work would have to be recalculated. Where the only explanation is tantamount to a negotiating tactic, I think it is reasonable to infer that it was a deliberate decision.[212]However, the Claimant then has to show facts from which in the absence of any other explanation, I could infer that this was less favourable treatment than would have been given to a hypothetical comparator and that the reason for the less favourable treatment was that of disability. I consider that a hypothetical comparator would have had the abilities of the Claimant and been in materially the same circumstances: namely someone who was unable to carry out their duties for the normal working hours of four 10-hour days every working week, plus one in three weekends but not for reasons to do with disability. I consider that an appropriate comparator would also be someone who had been paid incorrectly and where the Respondent genuinely, as I find, believed that the appropriate daily rate of pay for company sick pay and the appropriate daily rate of pay for days worked was to be calculated by taking the gross annual wage and dividing it by a notional 260 day working year. It appears that the Respondent had professional advice (in particular from their accounts) and genuinely believe it, despite there being no basis in the contract for that way (or any way) of calculating a daily rate.[213]It seems to me that I could, in the absence of any other explanation, infer that the reason was disability. However, there is no evidence that someone else in materially the same situation would have been treated better. I think that I should presume that the burden transfers to the Respondent when considering their evidence. It is very poor employee relations practice for an employer not to pay to an employee back pay resulting from an incorrect calculation of their salary as soon as practicable. However, my sense is that Mrs Bell and Mr Vuckovic were very dependent upon advice from accountants and solicitors and did not themselves immediately appreciate that there was an obligation to pay the difference which stood on its own merits separate to a continuing disagreement with the Claimant about how the salary under the variation of contract was to be calculated in the future.[214]The direct disability discrimination complaint fails because the Respondent has shown that the reason was nothing to do with the Claimant experiencing fatigue and muscle weakness itself, but entirely that they chose to combine discussions with the Claimant about their obligation to pay back pay for incorrectly calculated salary prior to October 2022 with negotiating the proportionately reduced salary for the contract variation. They chose to delay for tactical reasons and, however much I may disapprove of that, those reasons are not those of disability itself.[215]I stress that when I say that the calculation based on a denominator of 295 days was an incorrect calculation, that should not lead to an inference that I find that a calculation of a daily rate based on a denominator of 260 days was the correct interpretation of the contract and other applicable Law. It is simply that I accept that that was the Respondent’s genuine belief. Discrimination arising in consequence of disability[216]The core allegation said to amount to this alleged unlawful act is that of proposing a new part time contract at a disproportionate salary in August 2022 (see List of Issues 6.2.1 as amended at page 55). The Respondent did put forward a part time contract in August 2022 by which the Claimant was to have a permanent contract variation and her working week would be three days per week organised according to a rota which the Surgery would notify to her in advance. To understand what had been agreed, I need to refer to the context and not merely to the written terms of the contract.[217]The salary in the proposed contract (page 77) was £23,267.40 per annum, to be paid monthly in arrears. Other unspecified hours could be requested of the Claimant.[218]Notes of the meeting on 22 June 2022 and 22 August 2022 suggest that the expectation was that the Claimant would be rotared to work at weekends. A working day on one of Monday to Friday started at 0900 and ended at 1900, with one hour paid break. Whether the Veterinary Surgeon was fully occupied throughout that time depended upon the demands from day to day but they were paid to be available for 10 hours. Furthermore, Vets could be asked to attend early or stay late if needed to deal with emergencies. It was agreed that, when the Claimant was rotared to work weekends, her days would be altered through the normal working weeks either side of the weekend to ensure that she did not work Friday and Monday when working the weekend and worked no more in total that what was described in the 22 August 2022 meeting as 3 to 3 ½ days a week. I understood that to mean 30 – 35 hours a week.[219]The revised contract variation was sent to the Claimant on 9 November 2022, showing a calculation of what the Respondent claimed to be a proportionately reduced salary of £26,399.88 per annum using the notional 260 working days in the year.[220]For the Respondent to persist in arguing that the salary in the draft contract provided on 22 August 2022, was not disproportionately low is contrary to their evidence that the Practice had worked throughout the Claimant’s employment on the basis of a 260 day working year. From 12 October 2022 onwards the Respondent’s stance in correspondence was to insist that this was something that was known to the Claimant and had been known throughout her employment. Their argument is that since the daily rate could be calculated with reference to a 260 day working year, when calculating how much to deduct for a day’s authorised unpaid leave or how much to pay for company sick pay or annual leave (at least on their account), a lawful proportionate way to calculate the appropriate salary for the Claimant in a part time role as Veterinary Surgeon was to multiple that daily rate by three to represent three days’ work and then for 52 weeks in the year. To persist in arguing that the 22 August 2022 salary was not disproportionately low is illogical.[221]As I drew to Mr Franklin’s attention during closing speeches, had the Claimant accepted the terms of either the contract of August 2022 or that of November 2022, she could have continued to work under the new terms while bringing a complaint under the Part Time Workers Regulations 2000, that she (a part time Veterinary Surgeon) was not paid the same as a full time Veterinary Surgeon using herself in her full time role prior to the contract variation as a comparator. Reg.3 PTWR defines a comparable full time worker to include as a worker who was identifiable as a full time worker and following a variation of their contract continued to work under a varied contract that required them to work for a number of weekly hours that was lower than the number that they were required to work immediately before the variation. That is exactly what was proposed in the case of the Claimant. The effect of reg.3(2) is that for a claim of less favourable treatment on grounds of part time working under reg.5, a worker in the Claimant’s position would be enabled to compare themselves with their pre-variation full time selves.[222]As explained above, the pro-rata principle in the Part Time Workers Regulations 2000 says that it should be applied with reference to a comparison between the working hours of the full time worker and the working hours of the part time worker. If the working hours vary from week to week then an average of those hours should be used. This means that the Claimant’s argument that an average of a 44 hour working week would be used were she bringing a claim under the Part Time Workers Regulations 2000.[223]She has not brought such a claim, she chose to resign. However, it seems to me to be relevant that the contract proposed in August 2022 was not only less than the annual salary that the Respondent subsequently agreed to be the correct proportionate rate but both of those were less than the annual salary which would have met the pro-rata principle as that is defined in the Part Time Workers Regulations 2000.[224]The immediate or proximate reason for the contract variation was the need for certainty on the part of the Respondent and the Claimant. They had been working on sequential and late Fit Notes over an extended period of time and this was difficult for the Respondent to manage and causing anxiety for the Claimant. It was not possible for the Respondent to reconcile their desire to support the restrictions on the Fit Notes as certified by the Claimant’s GP with sending timely rotas to the other Vets. However, the reason that they needed to wait for Fit Notes from the Claimant was the Claimant’s ongoing lack of fitness to carry out full time hours. Therefore, in reality, this factual reason amounted to that asserted in the List of Issues at 6.3.1: namely that the Claimant was unable to work her contracted hours because of chronic fatigue. That, as is worded within the issue itself, arose from the disability of chronic fatigue. The Respondent has not shown a lack of knowledge.[225]The aims relied on List of Issues 6.6 were “ameliorating the Claimant’s concerns about meeting her contractual hours” and “ensuring that the Claimant was afforded an opportunity to work the hours that she was willing and able to contractually discharge.”[226]Although I have found that the Respondent had an additional aim of seeking certainty in their workforce planning so that rotas could be sent out well enough in advance, I am not persuaded that the Respondent was motivated by the Claimant’s concerns about meeting her contractual hours. Neither Mr Vuckovic nor Mrs Bell said the Claimant’s concerns were about whether she met her contractual hours or not; rather they said she was concerned about the need to obtain Fit Notes. However, I am satisfied that the Respondent, through Mr Vuckovic, was keen to retain the Claimant in employment and that therefore one of the aims of the part time contract was to provide certainty on a number of hours that the Claimant was medically able to discharge. I am satisfied that the second of the two suggested legitimate aims has been evidenced.[227]It is argued on behalf of the Respondent that it was not a detriment to offer a contract variation. However, that would only be the case if it had been offered at a proportionate rate. The contract as a permanent variation was not offered at a rate which would comply with the Part Time Workers Regulations 2000. Any reasonable employee would consider themselves to be disadvantaged by such an offer.[228]I have found that there was no contractual provision about how a day’s rate should be calculated for the purpose of deducting unpaid authorised day’s leave. I reject the Respondent’s position that there was a notorious and certain provision based on a notional number of working days in the year. In any event, I do not think it is reasonably necessary to achieve the aim of supporting the Claimant to work the hours she was medically able to discharge to offer that she do that that at a contractual rate which contravened secondary legislation.[229]The correct calculation based on working hours was set out in the documents written by the Claimant’s brother and handed to Mrs Bell on 12 October 2022. Most of the negotiations and discussion from then on engaged with the Respondent’s assertion that a daily rate should be the basis of the calculation. However, the Claimant had from the outset referred to working a 44 hour week. She continued to say that she did not think the proposed salary was the correct proportion of her full time salary.[230]In all of those circumstances the Respondent has not shown that offering a contract in August 2022 at a disproportionately low rate was a proportionate means of achieving a legitimate aim.[231]The Claimant argued in closing that this should be regarded as a continuing act since the discussions had continued after August 2022. A revised figure, as I have said, was offered in November 2022 which was still not correctly calculated in accordance with the Part Time Workers Regulations 2000. However, the core allegation the one that I am concerned with, is that of proposing the new contract in August 2022 and the Claimant confirmed at the start of the Hearing that it was that that she was relying on as the basis of her compensation claim and that alone.[232]The additional bullet points in paragraph 79 of her Witness Statement are not relied on as specific acts of unlawful discrimination. A complaint based upon the contract that was sent to her on 22 August 2022 should have been the subject of a claim to the Employment Tribunal (or at least to contact ACAS) no later than 21 November 2022. In fact, the Claimant contacted ACAS on 5 May 2023 and the Claim Form was presented on 3 July 2023. Therefore if one looks at this act in isolation, the claim was presented more than eight months late.[233]As Mr Franklin said, it is for the Claimant to show that the claim was presented in time, or that it is just and equitable to extend time within which the claim should be presented. The Claimant’s argument was that because of the continuing discussions the claim was not in fact out of time. However, she is a litigant in person, she may not appreciate she could argue an alternative case and did in fact put in evidence matters that seem to me to be relevant to whether it is just and equitable to extend time in respect of this complaint which has succeeded.[234]The first is that there was significant ongoing discussion between the parties in an attempt on both sides to resolve the situation. Ultimately this led to a grievance being presented in March 2023 and the outcome being delivered on 17 April 2023. The next point is that after these discussions, the Respondent did change their position and increase the salary which they considered to be the appropriate level for the contract variation. Therefore the Claimant had some reason to think that continued discussion might lead to improved results. Next there is the question of the Claimant’s health and I accept that throughout this period working was taking a considerable amount of her energy which limited the amount of time and energy she had to take advice from people about what her rights were. The picture was complicated by several months during which the Respondent had paid at one rate and then stated that the correct rate was a different amount, meaning that the Claimant focused on trying to calculate an accurate assessment of the amount that she had been underpaid since her return to work in May 2021.[235]I asked Mr Franklin in closing submissions whether there was any prejudice to the Respondent caused by the delay in presenting a claim based upon the offer of a contract in August 2022. He accepted that the complaint had been dealt with. He argued that a Respondent is always in a difficult position where time limits are dealt with at a Final Hearing because they are arguing their case on the evidence that has been admitted and it would in effect seem inconsistent or strange to have to at one and the same time suggest that they had been disadvantaged in having to respond late to the allegations and seek to persuade the employment tribunal to rely on their evidence. However, in the end he argued that the prejudice was having to spend time dealing with the allegation and that that had contributed to the evidence required in the Hearing. He argued that in reality time limits were there for a reason and generally should be adhered to unless there was a good reason not to.[236]That is true and I do not overlook that the delay in the case is quite long. However, the prejudice alleged to the respondent would not compare with the Claimant’s in being unable to proceed with and be awarded compensation for a meritorious claim. On balance I consider it just and equitable to extend time because of the factors set out in para.234 above. The Claimant succeeds on this head of claim. Unfair dismissal[237]The pleaded allegation of the matters amounting to a breach of the implied term of trust and confidence are set out at page 50, paragraph 2.1. Namely, did the Respondent do the following things:a. Fail to respond to the Claimant’s queries formally or informally?b. Withhold monies owed unless the Claimant accepted proposed new contractual terms?[238]Dealing with the second of those first, for reasons explained above in connection with the alleged direct discrimination, I accept that the Respondent did withhold monies that they accept were owed and linked that with the Claimant’s acceptance of their proposed new contractual terms. Those terms included a salary calculated on the basis of a daily rate which the Claimant did not agree to. Whether or not as a matter of fact those sums were owed is something I shall decide during the course of the unauthorised deduction from wages claim but the Respondent accepted through Mr Vuckovic’s email of 3 January 2023, that back pay calculated on the revised rate would be paid to the Claimant in January 2023 (subject to agreeing and bringing this matter to a close). There were detailed discussions in late January and early February 2023 (see pages 108 and 109) about whether the Respondent’s records of the days worked were accurate and so on, with Mr Vuckovic concluding on 1 February 2023 (page 109) that, if the Claimant agreed with their figures for the underpayment over a number of months, they would be able to include them in the next payslip. However, the Respondent’s assessment of the underpayment was not paid until June 2023. A similar statement had been made on 25 November 2022 by Mrs Bell (page 98).[239]The facts underpinning the first allegation; that of failing to respond to the Claimant’s queries formally or informally, are as follows: although Mr Vuckovic did respond on 28 August 2022 to the Claimant’s query about whether the proposed part time contract had been correctly calculated, it is clear on a fair reading of her email at page 84 that she asked him to state what her full time working salary actually was. That was because she is comparing her old hours of 44 hours a week with her new hours of 30 hours a week and suggested that the proposed salary of £23,267.40 was wrong. Simply to say that the salary remains the same and has been pro-rated at three days does not answer the question. Nevertheless, this does not seem to be particularly grave since it was a very speedy response over a weekend and he directed the Claimant to discuss it with Mrs Bell who had done the mathematics.[240]The tenor of the communications through September does pre-suppose that the Respondent has not made an error and does not encourage further discussion. However, the Claimant simply said that the situation was under review and had not made a detailed criticism or positive assertion that the figure was incorrect so one could perhaps overlook Mrs Bell wanting to force the pace a little bit to bring matters to a conclusion by stating as she did on 20 September and 30 September 2022 that the Respondent would presume the Claimant had agreed to the figures unless they heard to the contrary by a deadline.[241]However, when the Claimant presented her detailed figures produced by her brother and the Accountant at the meeting on 12 October 2022, there are a number of ways in which their analysis was overlooked and the response did not engage with the basis of the criticism. In particular, the Claimant (through the documents handed in on 12 October 2022) stated as she had from the start, that a comparison should be made between the working hours she was to be contracted to work and the working hours that she had been working. The Respondent did not engage with why this might be the proportionate way to calculate a salary reduction but simply repeated that they worked on the basis of working days. There was no apology for having so significantly underestimated the daily rate of pay prior to October 2022, even on their own account. The Claimant’s argument that if the proposed new salary was properly pro-rata it should be possible to work backwards from it up to her full time salary was not addressed. The situation stems from a lack of sufficient explanation in written form at the outset of any purported basis for calculating a daily rate of pay. The Respondent stated that the 260 working days a year was agreed in the Claimant’s full time contract (page 101) but it was not. They told the Claimant in January 2023 that she had a paid day off on Wednesdays for weekend working when, insofar as I can see, that was the first time that that was mentioned in writing. It had apparently been mentioned previously as the Claimant (through her brother’s analysis) pointed out that if as a full time worker she had had the benefit of a paid day off during Monday to Friday, she should also have at least a pro-rata paid time off as a part time worker and yet there was apparently no provision for that in the proposed varied contract. This argument was not addressed at any time.[242]In fact the Respondent’s analysis seems to unnecessary complicate the position which was that the Claimant worked full time, an average of 44 hours a week and received a salary in 12 equal monthly instalments. The Claimant on 15 and 25 November 2022 attempted to engage with the Respondent’s method of calculation and to suggest a way by which it was possible mathematically to work back to her original full time salary from the proposed part time salary, namely by presuming that weekends were remunerated at time and a half. One variation of the Respondent’s rationale was that instead of working Wednesdays the full time Vets worked one in every three weekends but as the Claimant pointed out, that meant that they were paid for 52 Wednesdays in the year in order to work 34.66 recurring (or 35 rounded up) weekend days. Hence her suggestion that this could only be pro-rata if weekends were valued at time and a half. The corollary would be that a weekend rate of time and a half should be paid to the Claimant when rotared to work weekends on her part time contract. This suggestion was not responded to. It was also not responded to on two further occasions. The Grievance Outcome simply re-stated the Respondent’s original position without explaining the anomalies in it which were drawn to their attention through the Claimant’s presentation in the Grievance.[243]It is suggested that in the Respondent’s submissions, paragraph 89, that the Respondent had a reasonable and proper cause not to pay back dated pay because the Claimant had refused to accept the conditional attempt to resolve the dispute over, “the figures that was based on a not incorrect interpretation of the contract and C’s initial working pattern”.[244]That was not the conditional link that was made in the correspondence which was that they would pay the back pay if the Claimant agreed prospectively to the figure in the contract. The reason they didn’t pay back pay was a negotiating tactic which was not a reasonable and proper cause.[245]The position the Respondent attempts to take now that it was equally valid contractually for the daily rate to be £149.15 per day or £169.29 per day, is unsustainable. A contractual daily rate of pay should be capable of only one finding. Overall the contemporaneous documentation suggested that the Respondent accepted there had been an error in the earlier calculation. Mr Vuckovic refers to it as an error and the sums to be calculated and paid are referred to as back pay. It is a serious matter for an employer to accept that they have miscalculated an employee’s pay and not promptly to transfer it to them. The existence of a disagreement as to how to calculate a proportionate rate of pay when there was a permanent variation of contract, is not a reasonable and proper cause for failing to pay sums that were due. When I say due, I mean due by the Respondent’s own assessment.[246]I reject the argument on behalf of the Respondent that they did respond to the Claimant’s concerns. As I have set out above, they did not address the detail and the fundamentals of her objections.[247]As I have explained above, a part time contract on that salary would have offended against the pro-rata principle under the Part Time Workers Regulations 2000. In those circumstances the Claimant has shown that the Respondent’s failure to engage with the concerns that she raised about their calculation of the daily rate of pay as the basis for her salary in the future, was not something for which they had a reasonable and proper cause.[248]For an employer to fail to address the important question that, on their own account, they had been underpaying their employee for a number of months and to say that that would only be addressed if the employee agreed to adopt a method of calculation of salary in the future which she disagreed with on reasonable grounds; for them to repeat that and not to engage with her criticism, is all conduct which taken as a whole is likely to destroy or seriously damage the relationship of trust and confidence.[249]As I set out in paragraph 123 above, these were all reasons why the Claimant resigned.[250]It was argued in cross examination (but not pursued with any vigour in closing submissions) that the Claimant had affirmed the contract before resigning with any breach having crystalised on 3 January 2023. This was based on the suggestion that the Respondent made clear on that date that they were not going to vary their position about the amount of salary offered under the varied contract. However, both the Claimant and Mr Vuckovic gave evidence that the Claimant’s challenges to the proposed salary continued. There were discussions about them in minutia of how any back pay would be calculated in early February 2023. The Claimant consulted a Solicitor who wrote a without prejudice letter but also entered a Grievance, which sought a formal resolution on this issue and stated that she was working under protest. In those circumstances I do not consider that the Claimant’s actions show unequivocally that she had accepted the breach; quite the contrary.[251]The Claimant has shown that she was dismissed. The Respondent did not advance a positive case on a potentially fair reason for dismissal. That would need to be the reason for the acts in response to which the Claimant resigned.[252]Even if the Respondent genuinely believed that they were in the right in their calculations, that is not something that amounts to a potentially fair reason under the Employment Rights Act 1996 and in any event, I do not consider the dismissal to be fair in all the circumstances where no reasonable employer would have persisted in offering a salary that did not comply with the pro-rata principle under the Part Time Workers Regulations 2000 or without engaging with the detail in the criticisms raised by the Claimant.[253]The Claimant was unfairly dismissed. Unauthorised deduction from wages[254]The Claimant sets out two different versions of the amounts that she says were owed. At pages 300 and 301 are tables leading to a total of £4,206.32. This is calculated using a per diem rate based on the actual days the Claimant attended for work when she was working full time, namely 243 days in a year. However, this calculation is simply one put forward by the Claimant as being fair and representative of the total days she was contracted to attend for work. Thos tables do set out the number of hours worked in particular months after the return to work, on the Claimant’s case. It was not suggested that she had inaccurately set out the hours and days she had worked.[255]The Respondent appears to argue that the working time Monday to Friday for a full day for a full time Vet was actually only 8 hours of the 10 hours between 0900 and 1900. I do not accept that. The Surgery was open throughout that period. I have accepted that the Vet could be and was from time to time called upon throughout that period, before it and after it to answer correspondence or telephone calls or to check on patients who had had an operation. In addition the Vet was entitled to an hour’s paid break. So the annual salary was paid for 10 hours during a working day that fell Monday to Friday, 8 hours if the working day fell on a Saturday, 4 hours if the working day fell on a Sunday and such other hours as were necessary to carry out the role.[256]The tables in the Claimant’s brother’s analysis go up to July 2022 (page 213). They are a calculation done in approximately October 2022 of the difference between sums paid August 2021 to July 2022, set against what the Claimant (through her brother) argued should have been paid, had an hourly rate been calculated by dividing her average weekly hours into her week’s salary. The week’s salary being found by dividing her annual gross by 52.[257]However, I refer back to but do not repeat my discussion of Hartley in para.174 to 179 above. The contract between the Claimant and the Respondent is silent as to how a daily rate of pay should be calculated. It is silent as to how a phased return to work should be paid. Some phased return Policies specify that the Apportionment Act 1870 does not apply. Some specify that phased returns should be paid on the basis of hours worked only and that would have out of necessity been inconsistent with the Apportionment Act 1870.[258]There is a deeming provision in the Apportionment Act 1870 which, where it applies, means that salary should be taken as accruing from day to day and should be apportionable in respect of time accordingly. If salary has to be apportioned in respect of a period of time such as a day, the amount of salary attributable to that day would be 1/365th of the annual salary. As Lord Clarke states, the precise figure would depend on the true construction of the particular contract, which remains the starting point from which to understand the parties’ rights and obligations. However, a critical feature of Hartley’s case which is present in this, is that the contracts are annual contracts. As in the present case, the teacher’s contract involved many different obligations and was not restricted to directed work, five days a week.[259]One of the difficulties with the respondent’s use of 260 working days is that it presumed only weekday working. The attempt to explain why that was fair was the notion that the Vet was paid for Monday to Friday but didn’t work one of those days (in the claimant’s case she didn’t work Wednesday) instead working 1 in 3 weekends. That explanation was illogical and incoherent unless weekend working was more highly remunerated than Monday to Friday.[260]The present is a situation where, in an annual contract where the employee is paid monthly she does not work a regular Monday to Friday working week. The contract does not say how a daily rate should be calculated. As in Hartley, there is no express stipulation that apportionment under the Apportionment Act 1870 should not apply. However, the respondent is entitled to deduct wages for every day the claimant is absent from work. In the absence of an express provision, the periodical payments of income accrue from day to day. Following Hartley, 1/365th of the annual salary is, by law, the appropriate rate as the deeming provision has not been disapplied. This is an equal daily apportionment (see Hartley para.37). It may give surprising results. One might be that the same deduction for a day would be made when the employee was due to work 10 hours as when they were due to work 8 hours. One might be that the month’s wage produced by this calculation is likely to be more than the calculation using the pro-rata principle. However that is, as Lord Clarke says, because it is a deeming position – a default position - from which the parties can agree to depart.[261]It was argued in closing by Mr Franklin that a deduction would therefore need to be made for every single day that the Claimant did not attend. So for example given that she attended for one day in May 2021, Mr Franklin argued that the Claimant had worked three days in May 2021 and taken 28 days off, so should have been paid less than she was.[262]That is not my reading of the decision in the Hartley case which was that the Teachers’ pay should be reduced by one day because of one strike day on which they were absent. To do as Mr Franklin suggests would mean that every employee on the standard contract, every week would have two days’ pay deducted because they did not attend at work at the weekend for two out of three weekends. That cannot be the correct interpretation because it would mean every employee employed on such a contract automatically had deductions of 69 days in a year. It is only when they do not attend on days they are contracted to work that the employer may make a deduction. The rate of the deduction authorised by the Apportionment Act 1870 is 1/365th the gross annual salary for each day of absence.[263]How many days are to be deducted from the month’s salary would depend upon the number of days that the employee would have been rotared for had it not been for their authorised absence. If in a twelve week period an employee would have been rotared for 48 days between Mondays and Fridays and 4 weekends, that would be a total of 56 days in the twelve week period. If in that twelve week period the employee was only be working for two days a week and no weekends, that would be 24 days meaning the employer could deduct 32 days’ pay for the days they would otherwise have been rotared but did not attend.[264]The information presently available (pages 300 & 301) sets out the days worked, not the number of days absent. I do not have the evidence available from which to calculate the precise amount of the shortfall but it is clear that there has been unauthorised deduction from wages. However, if the first day at work can be identified, then the probable number of days absent can be calculated by dividing the time into 12 week periods, counting the number of days the claimant was present in each period and subtracting that from 56.[265]The parties are to calculate what they each say is the amount of the deduction each week from 1 May 2021 to 31 July 2023. Their calculations should include the date of the claimant’s return to work, her gross salary in the financial year and the week, the date on which payment should have been made that month, the number of days worked in each week (set out week by week), the number of days that the claimant should be regarded as absent in each 12 week period, the amount to be deducted at the rate of 1/365th annual salary for each day’s absence.[266]I will list a remedy hearing but hope that the parties will be able to resolve the outstanding issues. When their write to each other and the Tribunal with their updated calculations, they should say whether or not they consider it necessary for the issues to be determined at a hearing..[267]The Respondent argues that this claim was out of time because any unauthorised deduction from wages ceased in October 2022. It is clear from my finding about the deeming provision having an application in this case that that is not the case. From April 2022 onwards the Respondent only paid the Claimant for days that she attended, rather than paying her her monthly salary less an amount for any days for which she did not attend. The daily rate calculated by the Respondent for their deductions was always going to be more than had they used the 1/365 figure. It therefore seems that the claim succeeds but the calculation is not as the Claimant has carried out.[268]However, time affects the amount which the Employment Tribunal has jurisdiction to award in another respect. S.23(4A) ERA (see para.164 above) explains that the Employment Tribunal cannot make an award that the Respondent pay to the Claimant any sum if the wages from which the sum was deducted were paid to the Claimant more than two years before the date on which the claim was presented. In the present case, that means that any deduction from wages originally payable on or before 3 July 2021 cannot be the subject of the claim before me. Remedy for Unfair Dismissal[269]The claimant’s calculation of what is owed as compensation for unfair dismissal is in paragraph 90 of her witness statement. She correctly calculates the Basic Award as 6 weeks @ £643.00 = £3,858.00.[270]For the compensatory award she claims 14 weeks’ loss of earnings for 1 August 2023 to 9 November 2023. Any argument that she failed to mitigate her loss by failing to find alternative work during that period is not seriously pursued. Loss of earnings in that period are caused by the act of the respondent in unfairly dismissing the claimant and are recoverable. The question is what is the weekly rate of pay at which those lost earnings should be calculated, given my findings about what deductions from the full time salary were authorised under the Apportionment Act 1870.[271]The Claimant has calculated a daily rate based on 243 working days in a year of £186.50. Her arithmetic claims 14 X 3.5 days a week X £186.50 which is £9,138.50. However that would pay her for the days she attended at work. She should have been paid her monthly salary less the days she did not attend at work.[272]The contractual working days over a three week period were as follows: Week 1 Mon, Tue, Th, Fri 4 days Week 2 Mon, Tue, Th, Fri 4 days Week 3 Mon, Tue, Th, Fri Sat & Sun 6 days Total over 3 weeks 14 days[273]On the Claimant’s reduced hours she was going to attend for work on 3.5 days but, since the salary accrues at an equal rate daily under the Apportionment Act 1870, it does not matter how many hours the Claimant was rotared to attend for. The deduction could only lawfully be made for the days she did not attend. Therefore, in a 3 week period that would be 2 days: she attends on 4 days in each week which is 12 days over a 3 week period. She would have attended for 14 days on a full time basis. The employer can deduct 2 days’ pay every 3 weeks.[274]The calculation of the number of days which could be deducted in 14 weeks is therefore 14 ÷ 3 x 2 = 9.33. At the time of dismissal her gross annual salary was £45,320. Divided by 365 produces a daily rate of £124.16. In a 14 week period, if the Claimant worked 3.5 days a week, the Respondent would have been able to deduct 9.33 X £124.16 = £1,158.41. I have used gross figures for these calculations.[275]Her weekly gross as a full time Vet would have been £45,320 ÷ 52 = £871.54. 14 weeks @ £871.54 = £12,201.56 gross of tax and N.I.. After deduction of £1,158.41 for the days she did not work, the Claimant would have been paid £11,043.15 in that 14 week period. Pension contributions of 3% would have been paid on that of £331.29. There is no claim for loss of statutory rights. The claimant earned £300.00 (presumably gross of tax and N.I.) during this period and credit is given for that.[276]However, the Compensatory Award should be awarded on the basis of net take home pay so I need to work out what the incidence of tax would have been on the £10,743.15 which is the shortfall in income after giving credit for earnings in alternative employment.[277]Page 297 is a payslip which shows Year To Date figures as follows: Gross salary 11,511.98 Tax 1463.80 N.I. 745.14 Total deductions 2,208.94 (2,208.94) Salary net of tax/N.I. 9,303.04 Marginal rate of tax/N.I. 20%[278]The net amount of lost earnings for those 14 weeks (after giving credit for earnings in mitigation) is £10,743.15 x 0.80 = £8,594.52. Total Compensatory award = £8,594.52 + £331.29 = £8,925.81. Remedy for Disability Discrimination[279]The claimant explained that the discussion about the August 2022 proposed contract left her “shaken” (C para.28). She believes that it was done knowingly because her impairment would restrict opportunities for alternative employment (C para.82). She told her GP on 3 May 2023 (page 199) that she felt pressured to accept the contract which supports a finding that she was still upset about the respondent’s act in sending the August 2022 contract and a disproportionately reduced salary and the pressure she felt under the accept it when she resigned the following July. She comes across as upset about it still although probably more upset at the failure to engage with her concerns and the failure to pay her the amount of the underpayment.[280]Although the award of £5,000 sought might seem an undervalue considering the distress that the experience as a whole has caused to the claimant, that is only if one ignores that only the complaint of discrimination arising from disability is that of being given the contract variation in August 2022. That was the start of a chain of events which included a number of actions by the Respondent that ultimately led to the Claimant concluding that they had behaved in a way that meant it was intolerable for her to stay. However, while still upset about it, she has not argued that proffering the contract at that disproportionate rate can fairly be said to have caused her resignation, except in a very distant sense when added together with their failure to deal with her criticisms and complaints.[281]In those circumstances, £5,000 is an appropriate award for the act that has been complained about. Interest will be awarded on that from 22 August 2022 to 21 September 2025 (the date this calculation is done). That is 37 months @ 8% = £1,233.33. Approved by: REMEDY JUDGMENT
Findings of Fact
[1]The respondent is to pay to the claimant the sum of £19,300.09 in respect of unauthorised deduction of wages. That figure has been calculated gross but will be paid after the appropriate deductions for tax and National Insurance.[2]The amount of unauthorized deduction from wages is calculated as follows: Wages if no absences 04.07.2021 to £89,464.38 31.07.2023 Permitted deductions (£11,185.12) Wages paid 04.07.2021 to 31.07.2023 (£58,979.17) Unauthorised deduction £19,300.09 Approved by: