Miss P Rose v Staton’s Estate Agents LLP: 3309088/2022
JUDGMENT
[1]The claimant was constructively unfairly dismissed by the respondent.[2]The claimant was discriminated against for a reason arising out of her disability as defined by section 15 of the Equality Act 2010.[3]The claimant was directly discriminated against on the grounds of her disability as defined by section 13 of the Equality Act 2010.[4]The claim of sex discrimination was dismissed upon withdrawal by the claimant.[5]The claim for unlawful deductions from wages was dismissed on terms agreed between the parties.[6]The respondent must pay to the claimant the sum of £46,652.74 in damages. EMPLOYMENT TRIBUNALS Claimant Respondent Miss Paige Rose v Staton’s Estate Agents LLP Heard at: (CVP) On: 16-20 October 2023 Before: Employment Judge R Wood: Mr F Wright; Mrs D Clarke Appearances For the Claimant: Mr D Poster For the Respondent: Mr Gray-Jones (Counsel) RESERVED DECISION ON REMEDY[1]This is a claim brought by Miss Paige Rose (“the claimant”) against her former employer, Staton’s Estate Agents LLP. The claimant alleged unfair constructive dismissal, sex and disability discrimination, and unlawful deductions from wages. The Tribunal heard these claims between 16-19 October 2023, and handed down an extempore decision on 20 October 2023. In summary, the Tribunal found that the claimant had been constructively unfairly dismissed, and had been the subject of disability discrimination, primarily under section 15 of the Equality Act 2010 (“the Act”), but also under section 13 of the Act.[2]In addition, the Tribunal also made a deduction of 20% in respect of the ‘Polkey’ principle, to be deducted from the compensatory award of unfair dismissal only. In relation to contributory fault on the part of the claimant, the Tribunal made a deduction of 10%. This was to be deducted from the compensatory award for unfair dismissal only.[3]The Tribunal then moved on to consider the question of remedy. The claimant sought compensation only. Our general approach, in the light of the findings we had made, was to make a basic award for the unfair dismissal. In addition, we awarded compensation to reflect the finding of disability discrimination, as this was likely to be more advantageous than the corresponding award for unfair dismissal (which was subject to the ‘Polkey’ and contributory fault deductions) .[4]The parties agreed the calculation for the basic award which was 4.5 x £846.15 = £2569.50.[5]We also made an award for loss of statutory protection in respect of unfair dismissal in the sum of £400.[6]In terms of compensation for unfair dismissal, the claimant sought only an award in respect of the period from 7th April 2022 to 1st September 2022. The net weekly income for the clamant at the relevant time was agreed between the parties at £641.96.[7]The appropriate calculation is therefore 21 weeks x £641.96 = £13,481.16. As stated, neither the deductions under ‘Polkey’, or for contributory fault, applied to the award for discrimination.[8]We were invited to reduce the figure for compensation (and the basic award) on the basis that the claimant had breached certain provisions of the ACAS Code of Practice for grievance and Disciplinary Procedures. In essence, it was suggested by Mr GrayJones that as the claimant had refused to attend either her disciplinary or her grievance hearing, that her conduct justified a deduction. We did not agree. We had found that the claimant had resigned and had thereby accepted a repudiatory breach of contract by the respondent. She had not refused to attend the hearings. She had been constructively dismissed before the procedures had played out. It was our judgment that to make a reduction in her award on this ground would amount to a criticism of her accepting the employer’s repudiation, which made no sense in the broader context of this case.[9]We also make an award in relation to injury to feelings (a ‘Vento’ award). In respect of claims presented on or after 6 April 2022, the ‘Vento’ bands are as follows: a lower band of £990 to £9,900 (less serious cases); a middle band of £9,900 to £29,600 (cases that do not merit an award in the upper band); and an upper band of £29,600 to £49,300 (the most serious cases), with the most exceptional cases capable of exceeding £49,300.[10]It was the respondent’s case that it fell, either to the top of the lower band, or the bottom of the middle band. The claimant suggested that the appropriate award was £40,000.[11]As it so often the case, the reality lies in between. It was our view that although there was no direct medical evidence as to the impact of discrimination and dismissal on the claimant, there was sufficient for us to infer that it had had a detrimental impact on her well being in a general sense. We saw medical evidence that there had been a deterioration immediately post dismissal. The Tribunal were aware that this is a condition was is exacerbated by factors such as stress in general terms. We also accept the claimant’s evidence that she felt belittled by the treatment she had received, and that the events had a significant impact on her. We note that the respondent was aware that she was recovering from a flare up of her Crohn’s disease, and had had two recent serious operations. At the time of the relevant matters, she was described by one of the respondent’s witnesses as ‘vulnerable’. As a result, these events were likely to have had a serious impact on the claimant’s psyche. We do not accept that the conduct was unwitting. The respondent knew better, and had chosen to use the claimant’s illness to side line her within the business.[12]Accordingly, we find that this case falls with the middle band. We award £25,000 in respect of injury to feelings.[13]The total award is therefore: Basic Award: £2569.50 Loss of Statutory Protection: £400 Compensation: £13,481.16 Injury to Feelings: £25,000[14]There is interest to be added to theses figure. We adopted the approach set out in the ‘Employment Tribunals Remedies Handbook’. The appropriate interest rate is 8%. The number of days from the date of the discrimination (I have taken 28/2/22), to the date of Judgment is 85 weeks and 4 days = 599 days. Interest on basic award is: 599/2 x .08 x 1/365 x 2569.50 = £168.67 Interest on compensation is: 599/2 x .08 x 1/365 x 13881.16 = £911.212 Interest on Injury to feelings: 599 x .08 x 1/365 x 25,000 = £3,282.19.[15]This means that total is £16,450.66 + 25,000 + 1,079.88 + 3,282.19 = £45,812.73.[16]This figure must then be subject to grossing up to have regard to the fact that the claimant will be taxed on an award of over £30,000. Again, we adopted the approach set out in the ‘Employment Tribunals Remedies Handbook’. It was calculated as follows: £30,000 - (£2569.50 + 168.67) (already a gross figure) = £27261.83 Amount to be taxed is: (13881.16 + 911.212) + (25,000 + 3,282.19) - 27,261.83 = £15,812.73 Grossing up this figure: 15,512.73 / .8 = 19,390.91 Total compensation is therefore: £27261.83 + 19,390.91 = £46,652.74.[17]The Tribunal therefore makes a final award of £46,652.74.