Mr P Martin and Mrs E Martin v Achieve Lifestyle: 3312048/2021 and 3312049/2021

EMPLOYMENT TRIBUNALS

Case No 3312048/2021, 3312049/2021

Between

Mr P Martin (1)Claimant

Achieve LifestyleRespondent

Before

Employment Judge Anstis

Mr P Starcevic (instructed by counsel) for claimant

Mr S Hoyle for respondent

Date 24 October 2023

JUDGMENT

The claimants were employees of the respondent when actually working and for the duration of any “Assignments”.

REASONS

[1]The claimants are a married couple. The respondent operates two leisure centres in Runnymede, one of which has a swimming pool. The respondent offers swimming lessons at that centre. Both claimants were swimming teachers who worked for the respondent. They bring various claims (described elsewhere) arising out of the final months of their work for the respondent and the ending of their work with the respondent.

[2]Some of those claims depend on them being employees of the respondent. The respondent does not accept that they were its employees, but it does accept that they were “workers” and employees in the extended sense that applies for the purposes of discrimination law. The respondent also agrees that the claimants were not self-employed. Mr Hoyle rejected my suggestion that people in the claimant’s position fell within binary categories of self-employment or employment, arguing that the so-called “limb (b)” worker was a status in its own right, and that that was the status held by the claimants. Page 1 of 12

[3]At a hearing on 24 August 2022 EJ M Bloom directed this preliminary hearing “to determine the claimant’s employment status”. Case management matters are dealt with in a separate order.

[4]I heard evidence from both claimants and from Hazel Aitken, the chief executive of the respondent. I also had a bundle of documents that included the contracts under which the claimants worked. Having heard evidence and the submissions of the parties, I reserved my decision. This document records my decision and the reasons for it. THE CONTEXT

[5]The respondent provides swimming lessons at one of its centres. These were not described in any great detail to me, but the hearing proceeded on the basis that they were largely if not entirely lessons for children. The children would be signed up for lessons by their parents, and these lessons would be outside the usual school day, though it seemed that there could be some lessons during the school day either for school groups who visited or for pre-school children. In generally these lessons continued year-round with three sets of two week breaks during school holidays. Children would be expected to move on from one class to another on achievement of particular milestones.

[6]Ms Aitken explained (and I accept) that these swimming lessons were a new venture for the respondent following the opening of the centre with the swimming pool in 2019. The extent of demand for the classes was, at least at first, uncertain. The respondent had to be able to respond to fluctuations in demand, and may open and close teaching sessions depending on demand. Payment for most if not all of the classes was by monthly direct debit, and presumably the intention was that if the children were to gain any benefit from the classes they would need to regularly attend for a reasonable period of time. This did enable the respondent to plan ahead, and the fluctuations in demand were not such that they respondent was unable to plan on a week-by-week or month-by-month basis. In general, once a particular class had started at a particular time it was expected to continue at that time on a weekly basis. No doubt from time to time the respondent had to rearrange classes, but I accept the evidence I heard that once a class was established at a particular time it could be expected to continue more-or-less indefinitely, barring some unforeseen slump in demand or occasional reorganisations by the respondent. The children that made up the class would graduate to other classes, but could be expected to be replaced by others moving up to that class or those newly starting lessons.

[7]I will come on to the respondent’s arrangements for staffing those classes later, but I note that it was the respondent’s (and the parents’) expectation that in order to get the maximum benefit from the classes there would have to be some continuity in the teacher for any particular class. This was expressed clearly in an email from the Lisa Collyer of the respondent to the claimants (and, Page 2 of 12 presumably, other swimming teachers who worked for the respondent) in which she said: “Following feedback from parents regarding the continuity of lessons being taught by a regular teacher, and an increasing rise in cover for classes being asked for by some swim teachers, has led to the introduction of attendance targets for class cover, this is to help minimise repeat or last minute cover requests, as the impact of different teachers in classes is having a negative impact on customer satisfaction. The rule of thumb is that it should be the exception rather than the norm. We try to be as flexible as possible and appreciate last minute issues arise from time to time, however, we also require continuity for the teaching of classes within terms i.e. between breaks. To help move this forward to gain a more positive outcome, an attendance minimum of 85% will be expected for all scheduled lessons …”

[8]While I am discussing this in terms of teachers taking individual classes, in fact it seems that the most common form of work was for a teacher to commit to a particular period of work during which they would teach a number of consecutive classes so, for instance, a teacher might be booked to teach from 09:00 – 12:00 on Saturday mornings, during which time they would lead multiple classes consecutively.

[9]Although this point was not discussed before me, it appears that the respondent’s view was that any of its swimming teachers were capable of delivering any of its lessons. The desire for continuity was more about the teachers getting to know the children, their progress and the best approaches to take with them individually than it was about particular teachers being considered particularly suitable for particular classes. Perhaps there were teachers who in practice were thought best suited to beginners or others who were thought most suited to improvers, but on the whole the idea seemed to be that any teacher was capable of doing the work involved with any class.

[10]The classes had operated for around a year before the first Covid-19 lockdown started. The first lockdown amounted to an absolute bar on swimming lessons of the kind offered by the respondent. I was not taken through the restrictions in any detail, but it appears that on the initial lifting of lockdown lessons restarted in a more limited, socially distanced, way, in accordance with guidelines prepared by the ASA. By December 2020 there was a further lockdown period during which lessons of any kind were prohibited, which as I understand it continued until the end of the claimants’ contracts. THE WRITTEN TERMS Page 3 of 12

[11]The claimants had identical “statements of employment particulars”, in a standard form prepared by the respondent and that Ms Aitken said was used for all casual workers, not just casual swimming teachers.

[12]The statement of employment particulars that each of them held was described as setting out “certain particulars of the terms and conditions of your employment … in accordance with section 1 of the Employment Rights Act 1996”. They pre-date the extension of s1 to cover “workers” as well as employees.

[13]There are multiple references across the six pages of this document to “employment”, “employer”, “employee” and so on. I have not counted them all, but those words are used perhaps twenty times, across multiple different clauses. This includes such things as “the title of the job in which you are employed is swimming teacher”, “any lawful payments due to [the respondent] on the termination of your employment will be deducted from your final salary” and (in a data protection clause) “after you have ceased to be an employee”.

[14]In those circumstances I was somewhat surprised that the respondent sought to argue that the claimants were not employees.

[15]The reference to the claimants being employees continued up to and including the eventual ending of their contracts, where they are described as “causal employees”.

[16]Mr Hoyle based his argument that the claimants were not employees on paras 1.5 and 1.6 of the statements of particulars of employment, which read: “This Agreement governs the individual’s engagement from time to time by the Company as a Bank Worker. This is not an employment contract and does not confer any employment rights on the Individual (other than those to which workers are entitled). In particular, it does not create any obligation on the Company to provide work for the Individual and by entering into this Agreement the Individual confirms their understanding that the Company makes no promise or guarantee of a minimum level of work to the individual and they will work on a flexible “as required” basis. It is the intention of both the Individual and the Company that there be no mutuality of obligation between the parties at any time when the individual is not performing an Assignment. Each offer of work by the Company which the Individual accepts shall be treated as an entirely separate and severable Assignment. The terms of this Agreement shall apply to each Assignment but there shall be no relationship between the parties after the end of one Assignment and before the start of any subsequent Assignment. The fact that the Company has offered the individual work, or offers the individual work more than once, shall not confer any legal rights on the Individual and, Page 4 of 12 in particular, should not be regarded as establishing an entitlement to regular work or conferring continuity of service.”

[17]There are also clauses 7.1 and 7.2, as follows: “There are no regular hours for this appointment and you may be offered work as and when it becomes available, however you have no obligation to accept it … However, it you do accept a shift, and subsequently cannot fulfil that shift, you must give as much notice as possible, to allow the shift to be offered out to others.” THE OPERATION OF THE CONTRACT

[18]The claimants and other teachers were paid an hourly rate based on timesheets they submitted. The timesheets reflected work they had actually done (including if they covered for other people) rather than the work they had been booked to do.

[19]There seemed to be broad agreement between the parties as to how the contract operated in practice. A teacher had the expectation of being offered a regular class or classes by the respondent. Subject to possible one-offs or different arrangements such as school lessons, if this occurred it would be offered indefinitely on a weekly basis subject to the respondent’s usual holiday breaks. It was not suggested to me that there were casual staff under these contracts who had never been offered classes. The respondent was not under any obligation to offer anyone holding these contracts any particular classes, but the circumstances in which someone was offered no classes at all would be very unusual, and I was given no instance of that happening. If a class was offered there was no obligation on an individual to accept it, but presumably it was in their financial interests to accept what they were offered to the extent that they could.

[20]While it was the claimants case that they would always honour any class they had committed to teach, it was clear that substitution of teachers occurred regularly. That much is clear from the 85% attendance target, which is not the 100% attendance target that might otherwise be expected. We also have instances of the claimants covering for others, Mrs Martins arranging cover for her classes when she was unable to take them and, on at least one occasion, Mr Martin covering for Mrs Martins.

[21]I accept that entering into this contract did not oblige the respondent to offer particular hours to anyone (though they usually did), and that teachers were free to refuse the hours offered. I also accept that even after they had accepted a class they were not obliged to teach it. They had to keep to 85% attendance and give as much notice as possible, but otherwise they could arrange cover Page 5 of 12 from other of the respondent’s teachers or the respondent would arrange it itself.

[22]At one point Mr Hoyle suggested that the claimants and other teachers were not obliged to complete a session once they had started it, suggesting that a teacher starting due to work from, say, 09:00 to 14:00 on a Saturday could leave at 10:00 if they felt like it. That surprising suggestion was not supported by the evidence, and was rejected by Ms Aitken who said that anyone who did such a thing (at least without very good reasons) would not be offered any more work. I find that once a teacher had started a session they were obliged to complete it, in the absence of some personal emergency or other very good reason. FURTHER RELEVANT MATTERS

[23]This decision does not need to go into the events leading up to the end of the claimants’ engagement with the respondent, nor how their engagements came to be ended. I note, however, that correspondence from the respondent to the claimant is replete with references to employment (typically “casual employment”), and the letters ending their engagement say: “Re: Termination of Contract – Causal Employment I write to regretfully inform you that your services as a casual Swimming Teacher with Achieve Lifestyle are no longer required, and this has resulted in your casual employment terminated with immediate effect.”

THE LAW

[24]Section 230 of the Employment Rights Act 1996 contain the following definitions: “(1) … “employee” means an individual who has entered into or works under … a contract of employment … (2) … “contract of employment” means a contract of service … whether express or implied … (3) … “worker” means an individual who entered into or works under …(a) a contract of employment, or

(b) any other contract, whether express or implied … whereby the individual undertakes to do or perform personally any work or service for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual …” Page 6 of 12

[25]A different definition of “employee” applies for the purposes of discrimination law, and it is agreed that the claimants meet that definition.

[26]A “worker” under s230(3)(b) is sometimes called a “limb (b)” worker, and while it is often the “limb (b)” worker who is the focus of arguments around worker status, it is clear from the statute that “worker” is a category that encompasses all employees.

[27]Discussion of the law around employment status typically starts with Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance

[1968] QB 479

at 515, which gave three elements that comprise employment: “(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.”

[28]These concepts have been developed over time, with the concept of “mutuality of obligation” assuming particular significance in the case of “casual employees” after Carmichael v National Power Plc

[1999] 1 WLR 2042

described it as being the “irreducible minimum” necessary to constitute a contract of service. Mr Hoyle based the respondent’s case on this “irreducible minimum”. It was not part of the respondent’s case that if there was mutuality of obligation there was something else (such as a lack of sufficient subordination or control) that would mean the claimants were not employees and, as I have mentioned before, it was the respondent’s position that the claimants were not self-employed.

[29]Exactly what mutuality of obligation amounts to or how it should be understood has been controversial from the start, but all the more so since the review of employment or worker status in cases such as Autoclenz Limited v Belcher

[2011] UKSC 41

and Uber BV v Aslam

[2021] UKSC 5

. While (so far as I am aware) none of these have suggested that mutuality of obligation is not necessary for an employment contract, the understanding of what such mutuality of obligation is has developed over time.

[30]HMRC v PGMOL

[2021] EWCA Civ 1370

is a modern case with useful commentary on employment and worker status. At paras 118 and 119 Elisabeth Laing LJ looked at mutuality of obligation in the following way: “i. The question whether a single engagement gives rise to a contract of employment is not resolved by a decision that the Page 7 of 12 overarching contract does not give rise to a contract of employment. ii. In particular, the fact that there is no obligation under the overarching contract to offer, or to do, work (if offered) (or that there are clauses expressly negativing such obligations) does not decide that the single engagement cannot be a contract of employment. The nature of each contract is a distinct question. iii. A single engagement can give rise to a contract of employment if work which has in fact been offered is in fact done for payment. Those authorities do not support any suggestion that the criterion of mutuality of obligation is the sole, qualifying test for the existence of a contract of employment, so that if there is some mutuality, but it is not the right kind of mutuality, there can be no contract of employment …”

[31]I take the modern position from Nursing and Midwifery Council v Somerville

[2022] EWCA Civ 229

, which was decided after (and took into account) the most recent authorities on employee and worker status.

[32]Somerville is a case on (limb (b)) worker status, though I note that concepts of mutuality of obligation appear to be similar in employee and limb (b) worker cases, subject to questions of subordination that do not arise in this case (see, e.g para 91 of Uber).

[33]The passage cited above was approved by the Court of Appeal in Somerville, and at para 55 it went further to say “the fact that the claimant could withdraw from the agreement to [carry out work] even after he had accepted it does not alter matters.”

[34]It is clear from that that a right for the individual to withdraw from work that they have previously committed to does not mean that there is no mutuality of obligation. (See also para 122 of PGMOL: “… if there is a contract, the fact that its terms permit either side to terminate the contract before it is performed, without breaching it, is immaterial. The contract subsists (with its mutual obligations) unless and until it is terminated by one side or the other.”) DISCUSSION AND CONCLUSIONS Employment when working or during an “Assignment”

DISCUSSION AND CONCLUSIONS

[35]I mentioned earlier my surprise that the respondent should say the claimants were not employees despite being issued with “statements of particulars of employment” and later dismissed from “casual employment”. There are profound difficulties with such an argument.

[36]The first relates back to my initial discussion with Mr Hoyle about whether the claimants were employed or self-employed. Setting aside esoteric statuses Page 8 of 12 such as officeholders, it seems to me that individuals in the claimant’s position are bound to be either employees or self-employed. Workers falling under s230(3)(a) are employees. Workers under s230(3)(b) are typically selfemployed. There is no distinct legal status of “limb (b)” worker that means that someone is neither employed nor self-employed. It being the respondent’s position that the claimants were not self-employed, the only realistic explanation of their status seems to be that they are employed, at least while actually carrying out work.

[37]It may be that Mr Hoyle was intending to refer to “self-employed” as a status outside that of worker. Sometimes that is how things are spoken of, but if so that still leaves the problem that there is no distinct status of “limb (b)” worker explaining the basis on which the claimants worked.

[38]The second is that almost everything in the statement of particulars of employment and the respondent’s dealing with the claimants suggests that they are employees. They are described as such in the statement of particulars of employment.

[39]I have said that Mr Hoyle placed considerable reliance on paras 1.6 and 1.7 of the statement of particulars of employment. To break down those paragraphs: 39.1. The description of the claimants as “bank workers” is not inconsistent with employment status. We know that “employees” are “workers” even if not all workers are employees. “Bank” adds nothing to that which would suggest they are not employees. 39.2. A phrase saying something is not a contract of employment when it is entirely set up as a contract of employment is absurd and cannot be allowed to prevent employment status when everything else points that way. 39.3. I accept in principle that there is no obligation under the agreement for the respondent to provide work or a minimum level of work to the claimants, but that says nothing about what their status might be when actually working for the respondent. 39.4. It is said that there is no mutuality of obligation “at any time when the Individual is not performing an Assignment”. There are two points that seem to follow from that. The first is that excluding mutuality of obligation where there is no “Assignment” seems to me to suggest that there is mutuality of obligation during an “Assignment”. If there was not, there would be no need to exclude it outside an “Assignment”. Beyond that, there must be mutuality of obligation when an individual is actually working. I do not see that there is any other way in which the agreement could work. To say there is no mutuality of obligation when working would mean that an individual could simply walk out during a lesson (which both Ms Aitken and I have already rejected), conduct a lesson poorly or that Page 9 of 12 the respondent could refuse payment for sessions carried out by the individual without there being any legal consequences. That cannot be right. 39.5. Treating each offer of work as a separate assignment (to which “the terms of this agreement shall apply”) simply emphasises that each individual assignment is carried out by the individual as an employee. 39.6. An “entitlement to regular work” or “continuity of service” are separate matters which do not suggest that there is no employment when the individual is actually working.

[40]Para 1.7 says: “there shall be no relationship between the parties after the end of one Assignment and before the start of any subsequent Assignment”. As far as I can tell “Assignment” is not defined in the statement of particulars, but the start of para 1.7 says “each offer of work by the Company which the Individual accepts shall be treated as an entirely separate and severable Assignment”. That raises the question of what an “offer of work” might be. As I understand it, except for occasional cover or perhaps school lessons, the “offer of work” made by the respondent to a teacher was for regular weekly hours, which typically did not have an end date. In general the respondent did not offer arbitrary hours to arbitrary teachers from week to week. We have seen that the respondent sought continuity. So far as possible, and assuming the teacher was satisfactory, they sought the same teacher for the same sessions each week. In those circumstances, the most common “offer of work” would be a booking of a period of hours at the same time each week indefinitely unless or until there was a reorganisation or removal of particular classes. In those circumstances periods “between Assignments” would seldom in practice arise unless, for instance, a teacher left to do other things for a few months and then returned to pick up work.

[41]Somerville and PGMOL make clear that clause 7.2 (permitting an individual to withdraw from work previously accepted) does not assist the respondent in showing that there was no mutuality of obligation.

[42]It seems to me beyond any doubt that the claimants were employees when actually conducting classes. I am also satisfied that they were employees during “Assignments”. That is consistent both with the written agreement and with the way in which matters actually operated.

[43]Given this, I strongly suspect that the continuity of service provisions at s212 of the Employment Rights Act 1996 are sufficient for the claimants to establish continuity of service at least up to their dismissal, even without there being ongoing obligations between periods of work. However, this was not the question that I was asked to decide and Mr Hoyle indicated that he had only been briefed at the last minute, so he was not in a position to address that point at this hearing and I did not hear any evidence or argument on it. Page 10 of 12 An “overarching” contract?

[44]I will go on to consider whether the claimants can be regarded as employees on an ongoing basis between and beyond Assignments.

[45]This is more what paras 1.6 and 1.7 seem intended to guard against, and I heard much from Mr Hoyle about the significance of mutuality of obligation and what that might mean for periods between work. The key point here is whether what is stated in para 1.7 about there being “no obligations” between “Assignments” is actually true.

[46]A striking feature of this case is that if there were no obligations between the parties at a time when they were not working, the respondent’s dismissal of the claimants is meaningless. The respondent has undertaken something which, on its case, it had no obligation to do. Similarly, the obligation on the claimants to give one week’s notice (which appears to apply even in the absence of any actual work being done or any Assignments being offered) is meaningless. There clearly are some obligations that apply between Assignments, otherwise there is no need to provide generally for termination of the contract or for the respondent to give notice. “Termination of employment” is considered in the statement of particulars of contract to be a meaningful concept, as there are post-termination restrictions at 14.2 that apply only on “termination of your employment”. This is not said to be limited to periods of work, or during Assignments.

[47]That is peculiar, and goes to suggest that the claimants were employees even between “Assignments”. However, I accept the terms of their contract with the respondent were such that there was no obligation on the respondent to offer, nor for them to accept, Assignments. If an Assignment ended, the respondent was not under any obligation to offer another, nor was a claimant obliged to accept any Assignment offered. In those circumstances, both PLMOG (see para 105 in respect of the decision of the FTT and UT) and Somerville (para 30) show that there is no “overarching” contract of employment that applied between Assignments.

Conclusions

[48]The answer to the question that I have been set is that the claimants were employees of the respondent. More fully, the claimants were employees when actually working and during Assignments. They were not employees between Assignments.

[49]Unfortunately that answer is insufficient to establish that they are employees with the right to claim unfair dismissal. Given the history of this case I foresee the possibility, indeed likelihood, of further disputes on matters that were not discussed in any detail before me and that I was not asked to decide, such as what an Assignment might be and whether s212 of the Employment Rights Act 1996 steps in to give the claimants continuity of service that they may otherwise Page 11 of 12 not have had. I have indicated in this decision that my provisional view is that the “Assignments” offered by the respondent were, in many cases, indefinite and had no end point. I have also indicated my view that it seems likely that any gaps in continuity could be filled in by s212 on the basis that they arose from sickness or “temporary cessation of work”, such as the holiday periods or lockdown periods, but again I have not had sufficient evidence or heard submissions that would allow me to reach a concluded view on that.

[50]A further order will provide for the respondent to set out its position on continuity of service (including any extension of the effective date of termination such as would allow the claimants have two years’ service). It may be the respondent’s position that the claimants do not have two years’ service, but if so I hope that they will have come to that position on full consideration of the facts and law, rather than on the basis of any desire to take every point they can think of against the claimants, whether arguable or not.

[51]Under s122(2) ERA (Issue 4.8.1), the relevant test is whether it is just and equitable to reduce compensation in light of conduct of the Claimant prior to the dismissal. The conduct need not contribute to the dismissal. The EAT has confirmed that the same test of “culpable or blameworthy” applies to the s122(2) reduction question as to s123(6) ERA – Langston v Department for Business, Enterprise and Regulatory Reform

UKEAT/0534/09

[52]Under s123(6) ERA (Issue 4.8.2), the test is whether any of the Claimant’s conduct prior to dismissal was “culpable or blameworthy” – Nelson v BBC (No.2)

[1980] ICR 110

, CA. This requires the Tribunal to look at what the Claimant in fact did, as opposed to being constrained to what the Respondent’s assessment of C’s culpability was – Steen v ASP Packaging Ltd

[2014] ICR 56

[53]The EAT in Steen summarised the approach to be taken under s122(2) and s123(6) ERA – paragraphs 8-14:53.1 Identify the conduct which is said to give rise to possible contributory fault;

53.2 Ask whether that conduct was blameworthy, irrespective of the Respondent’s view on the matter;

53.3 Ask, for the purposes of s123(6), whether the conduct which is considered blameworthy caused or contributed to the dismissal; and, if so,

53.4 Ask to what extent the award should be reduced and to what extent it was just and equitable to reduce it.

[54]Steen also indicated that a reduction of the basic award to nil would be a rare finding. Direct disability discrimination – s13 EqA

[55]Employees are protected from discrimination by s39 EqA: “(2) An employer(a) (A) must not discriminate against an employee of A’s

(b) (B) - … (d) by subjecting B to any other detriment.”

[56]Direct discrimination is set out in s13 EqA: “(1) a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[57]There are two parts of direct discrimination:(a) the less favourable treatment and

(b) the reason for that treatment. Sometimes however it is difficult to separate these two issues so neatly. The Tribunal can decide what the reason for any treatment was first: if the reason is the protected characteristic, then it is likely that the claim will succeed – Shamoon v Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. “Because of”: reason for less favourable treatment

[58]In terms of the required link between the claimant’s race and the less favourable treatment she alleges, the two must be “ inextricably linked” - Jyske Finands A/S v Ligebehandlingsnaevnet acting on behalf of Huskic: ECLI:EU:C:2017:278.

[59]The test is not the “but for” test, in other words it is not sufficient that, but for the protected characteristic, the treatment would not have occurred – James v Eastleigh Borough Council

[1990] IRLR 288

[60]The correct approach is to determine whether the protected characteristic, here race, had a “significant influence” on the treatment – Nagarajan v London Regional Transport

[1999] IRLR 572

. The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?” - Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

. This is a question of fact for the Tribunal to determine, and is a different question to the question of motivation, which is irrelevant. The Tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.

[61]If there is more than one reason for the treatment complained of, the question is whether the protected characteristic (in this case, race) was an effective cause of the treatment – O’Neill v Governors of ST Thomas More Roman Catholic Voluntary Aided Upper School

[1996] IRLR 372

. Discrimination arising from disability – s15 EqA

[62]S15 EqA provides: “(1) A person(a) (A) discriminates against a disabled person

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

[63]Under this section, no comparators required. The question is simply whether unfavourable treatment suffered by the claimant: in this context unfavourable treatment requires the Tribunal to consider whether a claimant has been disadvantaged. this requires an assessment against “an objective sense of that which is adverse as compared to that which is beneficial” - T-System Ltd v Lewis

UKEAT/0042/15

. Because of something arising in consequence

[64]First, it is necessary for the tribunal to identify the “something” that is said to be the cause of the alleged unfavourable treatment. Second, it is necessary for that “something” to have arisen in consequence of the claimant’s disability. These are the two causal steps that are required by s15 EqA.

[65]The Tribunal must determine what, consciously or unconsciously, acted on the mind of the alleged perpetrator. The relevant test is whether the “something” had a significant influence, or was an effective cause, of the unfavourable treatment – Pnaiser v NHS England

[2016] IRLR 170

. Motive is irrelevant under s15.

[66]Under s15, the sole requirement of knowledge on the part of the respondent is knowledge of the claimant’s disability. It is not necessary for the respondent to know that the “something” arose from that disability. Indirect discrimination – s19 EqA

[67]S19 EqA provides: “(1) A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.” Provision, criterion or practice

[68]The terms “provision, criterion or practice” (“PCP”) are not defined within the legislation, and are to be given their ordinary meaning; they are broad and overlapping terms and should not be narrowly construed – Ishola v Transport for London

[2020] EWCA Civ 112

. A PCP can cover informal as well as formal arrangements.

[69]The finding of a PCP is a matter of fact for the Tribunal – Jones v University of Manchester

[1993] IRLR 218

. Application of PCP

[70]The effect of a seemingly neutral PCP on persons who do not share the claimant’s protected characteristic must be considered, regardless of whether the PCP is indeed applied to others or not. Particular disadvantage

[71]There is no need for the disadvantage suffered by the claimant to be “serious, obvious and particularly significant” - McNeil v Revenue and Customs Commissioners

[2019] EWCA Civ 1112

. it is sufficient for the claimant, because of their protected characteristic, to be disadvantaged in some form.

[72]It is not necessary for every person who shares the claimant’s protected characteristic to suffer the particular disadvantage relied upon by claimant. Neither is it necessary for a claimant to produce statistical evidence demonstrating a particular disadvantage. Failure to make reasonable adjustments – ss20/21 EqA

[73]Ss20/21 EqA provide: “20(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4)… (5)… (6)... (7)... (8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. … 21(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.”

[74]The first requirement of this claim is that there be a PCP. This matter is covered above, under indirect discrimination. Substantial disadvantage

[75]There is no requirement under ss20/21 for a comparator to be considered regarding the alleged disadvantage suffered – Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

: ''It is well established that the duty to make reasonable adjustments arises where a PCP puts a disabled person at a substantial disadvantage compared with people who are not disabled. The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP. That is not a causation question … For this reason also, there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person's circumstances.”

[76]The definition of “substantial” is at s212(1) EqA, which provides that substantial means more than minor or trivial. Reasonableness of adjustments

[77]The ECHR Code of Practice on Employment (2011) sets out various factors that may be relevant when considering the reasonableness of any proposed adjustments:  “whether taking any particular steps would be effective in preventing the substantial disadvantage;  the practicability of the step;  the financial and other costs of making the adjustment and the extent of any disruption caused;  the extent of the employer's financial or other resources;  the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and  the type and size of the employer.”

[78]There is no requirement that adjustment suggested by a claimant should remove the substantial disadvantage in its entirety – Noor v Foreign and Commonwealth Office

[2011] ICR 695

. The statute states that the reasonable adjustment should “avoid” the disadvantage. Therefore, a respondent will not avoid liability solely by demonstrating that the disadvantage would have been suffered even with the adjustment. If the adjustment would have acted to avoid the disadvantage, that is sufficient for liability to attach under ss20/21.

[79]The knowledge required of respondents under ss20/21 is that they are aware that(a) the claimant is disabled and

(b) that the claimant would likely be placed at the substantial disadvantage in question. The issue of knowledge covers both constructive and actual knowledge. In other words, as set out in Eastern and Coastal Kent Primary Care Trust v Grey

[2009] IRLR 429

, at para 11, a respondent will escape liability if it: “(i) does not know that the disabled person has a disability; (ii) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled; (iii) could not reasonably be expected to know that the disabled person had a disability; and (iv) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.” Victimisation

[80]S27 EqA sets out: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because: (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act;

(d) Making an allegation (whether or not express) that A or another person has contravened this Act.”

[81]The relevant subsections in the present claim are ss27(2)(c) & (d).

[82]Regarding “doing any other thing for the purposes or in connection with this Act”, this is the catch-all provision. Under pre-Equality Act legislation, it was held that the requirement that something be done “in reference to” the Race Relations Act would be met if it was done by reference to that Act “in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act” – Aziz v Trinity Street Taxis Ltd and ors

[1988] ICR 534

∫.

[83]In terms of “making an allegation...”, although it is not necessary for the Equality Act to be mentioned, it is vital that the facts as set out by the claimant would be capable of amounting to a breach of that Act.

[84]The meaning of detriment is set out above. For a detriment to be because of a protected act, it is necessary that it had a significant influence on the perpetrator, where significant simply means “more than trivial” – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

[2005] ICR 931

Findings of fact

[85]Mr and Mrs Martin have been swimming teachers for some time. They often work for the same pools. Mr Martin, at the relevant time, also held the position as a teacher at a school, at which he had been for approximately five years.

[86]Mr and Mrs Martin commenced working for the respondent on 4 March 2019 as swimming teachers. At that time, it was understood by all that they were casual workers; however, at a hearing on 16 January 2023, and by way of a reserved judgment dated 23 January 2023, it was held that both claimants were in fact employees of the respondent. The claimants’ employment with the respondent terminated on 25 February 2021. Policies and procedures

[87]The claimants’ contracts required either side to give one week’s notice of termination of employment – [77]. Both contracts also made reference to a disciplinary and grievance procedure which were noncontractual. The contracts stated that those two processes “may be amended from time to time” by the respondent – [77].

[88]We have the grievance policy in the bundle, but not the disciplinary policy. The grievance process sets out three stages; stage 1 is an informal stage at which a complaint should be raised with the employee’s manager. Matters then normally progress to a formal grievance, or stage 2, which should be dealt with by a grievance manager more senior to the employee who raised the grievance. Finally, an employee has the right to appeal against the outcome of the grievance. This is stage 3, and is normally dealt with by a manager more senior to the grievance manager and who has not previously been involved in the case – [99/100].

[89]The grievance policy states that a grievance manager, at stage 2, “will meet with the employee who raised the grievance and carry out a thorough and impartial investigation” – [97]. Lockdowns 1 and 2

[90]In March 2020, the country went into lockdown due to the Covid-19 pandemic. This evidently led to many employers and employees suffering financially. The Coronavirus Job Retention Scheme (“CJRS”) was put in place in order to support both employers and employees. Within that scheme was the ability to furlough employees. For any employees who were furloughed, the government would reimburse the employer for 80% of those employees' wages. The employer would still have to pay pension contributions, and national insurance contributions, as well as associated holiday pay, and the remaining 20% of employee wages (unless employees agreed to be paid 80%).

[91]The country went through several lockdown periods, meaning that employees had to work from home where possible. Swimming pools were also closed. Evidently, employees who were not able to work from home (such as swimming teachers) were not able to work.

[92]When the first lockdown occurred, four members of the Martin family were working for the respondent as teachers; Mr and Mrs Martin, and their two children, Christopher and Rhianne. The family had a joint email account, crepmartin@aol.com. Correspondence to and from that email account was understood by the respondent and the Martin family to be to or from all four members of that family. We understand that Christopher and Rhianne had individual email addresses as well.

[93]During Lockdown 1, all four members of the Martin family were placed on the furlough scheme and paid 100% of their wages.

[94]When the swimming pool reopened after that first lockdown, Rhianne did not return to teach there.

[95]When Lockdown 2 was announced, those understood to be casual workers were sent an email by Ms Aitken, setting out that there is a net cost to the respondent for placing workers on furlough – [102]. The email also made clear that the respondent was facing financial hardship in light of the lockdowns, and that this hardship was evidently worse than the financial position at this stage of Lockdown 1.

[96]Ms Aitken’s email set out that workers would be included in the furlough scheme if they had “recently worked” for the respondent – [102].

[97]During Lockdown 2, Mr and Mrs Martin and Christopher were all in receipt of furlough pay. However, this time round, they received only the 80% that the respondent could recover from the government. December 2020

[98]In November 2020, Mrs Martin was diagnosed with breast cancer. She underwent surgery on 1 December 2020, which thankfully appears to have been successful.

[99]Mr Martin asked for leave from his school job for the week of Mrs Martin’s operation. On 3 and 5 December 2020, Mr Martin covered Mrs Martin’s shifts that she had booked in for the respondent.

[100]On Monday 7 December, Mr Martin attended school as usual. However, his headmistress sent him home as it was understood that he may have been in contact with someone who had Covid-19. He did not receive a track and trace notification from the NHS, but did as his headmistress instructed and returned home, to isolate for a two-week period. This took him up to the end of term and the Christmas holidays.

[101]Mrs Martin was provided with a fit note stating that she was not fit to work due to surgery from 16 December 2022 to 4 January 2021 – [104]. She provided this to the respondent. Mr and Mrs Martin did not inform the respondent of the reason for Mrs Martin’s surgery at this time. January 2021

[102]On 13 January 2021, Ms Aitken sent an email to Mr and Mrs Martin at crepmartin@aol.com, regarding Lockdown 3 – [105]. That email set out the arrangements for furloughing staff during Lockdown 3.

[103]For this period of lockdown, the criterion applied by the respondent was that casual staff would be furloughed (on 80%) if they had “demonstrated a frequency of regular working prior to closure”; the frame of reference used for application of this criterion was hours worked in December 2020. On this basis, Mr and Mrs Martin were informed that they had worked insufficient hours in December to be eligible for furlough for Lockdown 3.

[104]Mr Martin telephoned Ms Aitken on 13 January 2021, to register his and his wife’s upset at not being included within the furlough scheme this time round.

[105]He followed this up with an email the following day, stating that both he and his wife felt the decision was unfair and setting out the reasons for their absence from work in December - [106].

[106]In relation to Mrs Martin, it was stated that she had to have an operation on 1 December, which she had forewarned her manager, Hailey, about; Mrs Martin had told Hailey that she would be unable to work for two weeks following that operation. Mrs Martin had provided cover for all her classes in advance of this two-week period. She then provided a sick note to cover the period from 16 December 2020 to 4 January 2021 - [104].

[107]In relation to Mr Martin, he set out that he was instructed by his headmistress on 7 December to self-isolate. He let Hailey know of this, and that he would be unable to work until 17 December. He noted that confirmation of this was sought by the respondent from his school.

[108]In summary, Mr Martin explained that they had no control over their absences in December and that, on their usual timetable, they would have been eligible for further payments in Lockdown 3.

[109]Mr Martin concluded that email by stating “I said yesterday that I feel that we are an exception” and went on to explain that they were both good workers who had built up attendance of classes at the respondent, and who had never abused the holiday or time off systems at the respondent.

[110]At this juncture, we notice that much was made by Mr Hoyle as to the reason why Mr Martin thought he and his wife were an exception. It was put to Mr Martin that he meant they were an exception due to their good service and attendance records. Mr Martin made it clear in his evidence that this was one factor, however another factor was that their absences in December were not of their own making. Mr Martin felt that this needed to be considered and made them an exception as well as their good records. We accept that evidence; we found Mr Martin to be a credible witness, although on some points he lacked clarity and was repetitive. We do, however, consider his evidence was clear as to what he meant by being an “exception”. This interpretation is also consistent with an objective reading of his email of 14 January, taken as a whole. It is clear on the reading of that email that he was asking the respondent to consider their particular circumstances, those being their good service and the reasons why they were absent in December.

[111]On 15 January 2021, Ms Aitken replied to Mr Martin stating they she would bring the matter to the Board of Trustees the following week - [107].

[112]We have heard from Ms Aitken that there was a board meeting on 20 January at which Mr and Mrs Martin’s eligibility to be included in the furlough scheme was discussed.

[113]On 21 January 2021, Ms Aitken sent an email to Mr Martin explaining that she had discussed their situation with the Board of Trustees – [108]. She explained that the conclusion had been that Mr and Mrs Martin simply did not meet the criterion applied for eligibility for furlough pay. The reason given was that of financial difficulties experienced by the respondent.

[114]On 26 January 2021, Mr Martin replied to Ms Aitken’s email, having taken advice from the solicitors at the Institute of Swimming – [109]. In this email he disclosed to her the fact that Mrs Martin’s surgery was in relation to a breast cancer diagnosis in November 2020, stating that their situation was therefore covered by the Equality Act 2010. He accepted that they should have communicated this reason to the respondent earlier but that the reason for not doing so was that Mrs Martin did not want anyone at Egham to know.

[115]Just on this point, Mr and Mrs Martin’s evidence was that they did not wish the respondent to know about Mrs Martin’s diagnosis, as they were very concerned that Mrs Martin’s mother would learn of her condition. They wanted to do everything possible to protect her from that knowledge, given her age and her own ill-health.

[116]Both claimants were cross-examined as to why they did not tell the respondent about Mrs Martin’s cancer earlier. The Tribunal finds that anyone with a diagnosis of cancer must deal with it in any way they see fit. If Mrs Martin chose not to tell the respondent, that is entirely a matter for her. We in no way criticise her for not informing the respondent earlier.

[117]Returning to the 26 January email from Mr Martin, it appeared to link Mr Martin’s self-isolating to Mrs Martin’s cancer (“the need for Paul to self-isolate took things to a different level (given Ellen’s increased vulnerability)”). It is clear to us now, as confirmed by Mr Martin, that this was not the reason for his self-isolation. As set out above, we find he self-isolated following an instruction from his headmistress. We are satisfied that Mr Martin was not attempting to mislead the respondent in the wording of this email, but that it was just clumsily written. This finding is supported by the fact that the claimants were open in their grievance statement about Mr Martin’s need to isolate being due to contact with a pupil, not Mrs Martin’s vulnerability - [115]. Had Mr Martin been attempting to mislead the respondent, he would not have been transparent in this communication.

[118]In this email, Mr Martin asked the question: “If Egham are still unwilling to grant him furlough, is there not a case for SSP?”

[119]Mr Martin conveyed to Ms Aitken that their solicitor felt that, with the full background now known to the respondent, “there was more than enough reason to grant furlough” – [109].

[120]This 26 January 2021 email is said to be:120.1 an assertion of statutory right for the purposes of the claimants’ s104 ERA claim, regarding the comment about SSP set out above;

120.2 a protected disclosure, tending to show a failure or likely failure to comply with the legal obligation to pay SSP, for the purposes of the claimants’ s103A ERA claim; and

120.3 a protected act for the purposes of the claimants’ s27 EqA claim.

[121]On 27 January 2021, Ms Aitken replied, attaching a copy of the grievance policy – [112]. She stated that: “As the informal approach [of the grievance procedure] has not been successful, please commence the procedure from Stage 2, whereby you are required to fully submit your grievance in writing”.

[122]In Ms Aitken’s statement, she stated that she informed the claimants that they would need to raise a formal grievance which she would pass on to the Board of Trustees – [HA/WS/11].

[123]In response to this, Mr Martin replied, asking for the email address of the grievance manager who would be handling their complaint – [112]. The following day, Mr Martin sent a grievance statement to Ms Aitken, asking her to forward it to the person who would be handling the grievance – [114].

[124]The grievance itself is at [115-116]. This is also relied upon as being a protected act and a protected disclosure. In this grievance the claimants repeated the email of 26 January 2021, and added: “If any other month had been chosen to base the decision on whether to give us furlough, we would have qualified. Therefore, the fact that you have limited eligibility period to one month, puts Ellen at a disadvantage because of her disability and Paul because of his self-isolation due to him being in contact with a pupil who had Covid. … As far as I understand the Equality Act 2010, you cannot discriminate against someone who has some type of disability and this includes illness and the like. I know I have said this before but we were both unable to attend work due to reasons of illness (both possible and real) and no account has been made of this … The background to our absence has not been considered. … We would like to finish this letter by saying that this whole situation could be resolved by the [respondent] agreeing to pay us furlough”

[125]Ms Aitken took this grievance along to the Board of Trustees meeting on 1 February 2021. At this meeting the Trustees were informed of the contents of the grievance, and the fact of Mrs Martin’s cancer. The Trustees’ view was that their criterion for eligibility for furlough was not affected by this new information. In Ms Aitken’s own words in cross-examination; “Mrs Martin’s illness never came into any of the decision-making. That is why it was never considered to be a factor in the decision-making”.

[126]On 2 February 2021, Ms Aitken responded to the claimants by email – [117]. She went through the history of the matter, explaining that the claimants’ initial challenge to furlough pay by telephone and email on 13 January and Ms Aitken’s response to it was the informal stage of the grievance process. The matter was then raised with the Trustees, and the unanimous decision was that the respondent was “not in a financial position to make changes to the criteria casual staff [sic] for inclusion into the Job Retention Scheme due to the burden of cost already being met by [the respondent] during closure”. Finally, she said that, having brought the matter to the trustees’ attention again, the decision remained unchanged and was final.

[127]On 24 February 2021, Mr Martin sent an email to Ms Aitken – [118]. He complained that their grievance had not been looked at by anyone impartial, and stated that the respondent had not even followed its own grievance procedure. He asked for a formal grievance meeting to be held and that it be chaired by someone impartial, someone other than the Trustees.

[128]Mr Martin made the point that the respondent seemed to be relying on the “floodgates” argument: that if the respondent paid Mr and Mrs Martin furlough pay, they would have to do the same for all casual workers. Mr Martin countered this argument, by stating that their situation must be unique but that no one had given it any consideration.

[129]He again ended the email by saying “this matter could be amicably resolved by furlough being paid”.

[130]Ms Aitken says in her witness statement that, following this email and in light of the telephone conversation with Mr Martin, “the respondent now considered communications with the claimants quite threatening”. Ms Aitken was asked what was threatening about the email of 24 February. Her answer was that it was the sentence “this matter could be amicably resolved by furlough being paid” – [118]. When pressed as to what she thought the claimants were threatening to do she agreed that those words potentially could be a threat to take their complaint further. Mr Heal in his evidence stated that he thought the claimants were threatening to bring a Tribunal claim.

[131]This email, specifically the phrase “this matter could be amicably resolved by furlough being paid” is relied upon as being a protected act for the purposes of the claimants’ s27 EqA claim.

[132]The following day, 25 February 2021, the respondent sent Mr and Mrs Martin letters ending their work with the respondent – [119]. The letters stated as follows – [110/111]: “I write to regretfully inform you that your services as a casual swimming teacher with Achieve Lifestyle are no longer required, and this has resulted in your casual employment terminated [sic] with immediate effect.”

[133]That was the only correspondence the claimants received on the matter of their termination.

[134]The claimants commenced the ACAS early conciliation process on 29 April 2021; this process concluded on 24 May 2021. The claimants’ claim form was presented on 23 June 2021. Reason for dismissal

[135]It is the respondent’s case that the claimants were dismissed for gross misconduct, namely a suggestion from Mr Martin that was deemed to be fraudulent by Ms Aitken and the Trustees (“the fraudulent suggestion”). Given that Mr Martin always communicated on behalf of both himself and his wife, the respondent took his suggestion to come from both of them. Therefore, Mrs Martin was dismissed for the same conduct as Mr Martin.

[136]The fraudulent suggestion is set out in Ms Aitken’s witness statement at [HA/WS/13]. She states that, on 2 February 2021, Mr Martin called her to discuss the rejection of their grievance. Ms Aitken’s evidence is that Mr Martin: “Suggested that I should claim furlough pay for himself and [Mrs Martin], and that he would recompense any costs to the respondent”.

[137]During Mr Martin’s evidence to us, it was put to him in cross examination that the telephone call including the fraudulent suggestion took place on 26 January 2021. It was then however pointed out that Ms Aitken’s evidence had this call as being on 2 February 2021. On having clarified instructions with Ms Aitken, the respondent’s case became that the fraudulent suggestion was made in a call on 24 February 2021.

[138]The respondent’s case, and Ms Aitken’s evidence, on the telephone calls was inconsistent. From Ms Aitken’s witness statement, it appears that there were telephone conversations on the following dates:138.1 14 January 2021 – [HA/WS/9];

138.2 2 February 2021 – [HA/WS/13].

[139]In cross-examination of Mr Martin it was suggested that there were two telephone calls between him and Ms Aitken. However, in her oral evidence to us, Ms Aitken told us that she had had at least three telephone calls with Mr Martin. She believed that telephone conversations had occurred on the following dates:139.1 13 January 2021;

139.2 2 February 2021;

139.3 24 February 2021.

[140]In terms of the fraudulent suggestion, during her evidence, Ms Aitken clarified that what Mr Martin actually said to her was something along the lines of: “If you give me my £800, I will give you back the £50 it cost you to get the furlough, I can’t see a problem with that”.

[141]These precise words were not put to Mr Martin, or Mrs Martin, nor do they appear in Ms Aitken’s witness statement.

[142]Ms Aitken’s evidence changed from that of her witness statement in that, during her cross examination, Ms Aitken said that the fraudulent suggestion had been made in at least two conversations. That was her explanation for her entry into her notebook of “Paul Martin call (2) – give me my money” – [145] (detail of the notebook is set out below). This is contrary to her witness statement, in which she is clear that there was one call in which the fraudulent suggestion was made, and that this was in the call on 2 February 2021.

[143]Mr Martin’s evidence on this point, supported by that of Mrs Martin, is that no fraudulent suggestion ever took place. He accepted he had several calls with Ms Aitken, however as far as he was concerned they were always amicable. He highlighted the fact that Ms Aitken had never pointed out to him that, in her view, he had made a fraudulent suggestion. In fact, the written communications from her remained amicable throughout.

[144]Ms Aitken kept a notebook during the Covid pandemic; she called it “her bible”. We have in the bundle one page of this notebook – [145]. The original notebook was brought to the hearing and was available for inspection.

[145]The page in question sets out various notes Ms Aitken made in relation to Mr and Mrs Martin’s complaint and conversations she had with Mr Martin on the telephone. There are no dates on this page other than a reference to “Jan 21” on the right-hand side. There are many exclamation marks on this page and asterisks marking the comment “painful explaining”. It is evident that Ms Aitken found Mr Martin conversationally difficult to deal with; she explained to us that she felt she was going round and round in circles with him. Having heard evidence from Mr Martin, it is fair to say that we noticed a certain amount of repetition in what he was saying to us. We can understand that, particularly in a position where there are two opposing views, Mr Martin’s communication could be seen by the other party as frustrating.

[146]The most relevant comments on [145] are: “Paul Martin call (2) give me my money -> WTF! Deception/money!! Cover furlough costs – No! … Concern - Asked to break the law - Corrupt practice - Blackmail window HMRC – what is the rule FLAGS = INTEGRITY/HONESTY … Dishonest Practices Integrity compromised! No further work”

[147]We find that nothing said in any conversation between Ms Aitken and Mr Martin reached the level of a fraudulent suggestion. It may well have been that Mr Martin, in his desperation, suggested some way in which furlough could be paid to him and his wife (“the furlough request”).

[148]The respondent’s allegation of gross misconduct is that Mr Martin “suggested that Ms Aitken should claim furlough pay for himself and Mrs Martin, and he would recompense any costs to the respondent” and that this “amounted to fraud and was for his financial benefit” and further that Mr Martin had “breached trust and integrity” – HA/WS/13.

[149]We find that Mr Martin said something in that telephone call in a last-ditch attempt to get the respondent to place them on furlough.

[150]We need not find exactly what was said as, taking the respondent’s case on what Mr Martin said, that “he would recompense any costs to the respondent”, we are not satisfied that Mr Martin had sufficient knowledge of the law around furlough to know that, if that was what he was suggesting, that would amount to fraud.

[151]Having heard evidence from Mr Martin, it is clear to us that his grasp of the furlough scheme, and general employment rights, is vague at best. We find that any suggestion he made could not reasonably have been understood to be a deliberate or underhand attempt to circumnavigate any laws or guidance relating to the furlough scheme. He simply did not understand the scheme well enough, including who paid what under that scheme, and the amount of any cost to the respondent.

[152]Therefore, even if Mr Martin had said what the respondent alleged he said, we find that he did not have the intent or understanding of the implications of what he was asking, and therefore did not act in such a way as to breach trust and integrity. Neither was this an act of fraud.

[153]In terms of Mrs Martin – although we accept that Mr Martin acted for her, we find that, once again, Mrs Martin was not aware of the legal framework of furlough, or the legal implications of suggesting that the claimants pay anything back to the respondent, if that was in fact what was suggested.

[154]We do however accept that Ms Aitken was genuinely taken aback by whatever it was that Mr Martin said. However, we find that her reaction was objectively unreasonable.

[155]We note that the respondent set out what the costs to them were in the 10 November 2020 email at [102]. However, we accept that the claimants did not take in the meaning of this part of the letter: at that stage they were just satisfied that they were going to get furlough pay.

[156]We find that, from the time of obtaining legal advice, the claimants followed that advice, parroting back to the respondent what they had heard from their legal advisors. We find that they did not have a firm grasp on their legal position at this point, in relation to furlough pay, and also statutory sick pay (“SSP”). We accept Mr Martin’s evidence to us that SSP was mentioned as it “was advised to us by people who are smarter than me”.

[157]We have analysed the words that are now alleged to have been said by Mr Martin, namely “If you give me my £800, I will give you back the £50 it cost you to get the furlough, I can’t see a problem with that”. Firstly, we note that the figures appear to be plucked from thin air: having looked at the claimants’ payslips, allowing for the fact that by Lockdown 3 the respondent was only paying 80% of wages, the cost to the respondent would have been solely the claimants’ National Insurance contributions, totaling around £3 for each claimant. Secondly, there is nothing in that sentence that indicates an understanding that this would be in breach of any law, regulation, or guidance. We find that the words alleged equate to an attempt to figure out a way that the claimants could be paid furlough pay.

[158]In fact it seems, from Ms Aitken’s note on [145] of “HMRC – what is the rule”, that she did not have a firm grasp on whether a suggestion of making a payment to the respondent would be a breach of any rules or laws. In her evidence to us she said that what was going through her mind was, if they had done what Mr Martin asked, would they have broken any HMRC rules, and where would it leave her and the respondent.

[159]We find that Ms Aitken jumped to an unreasonable, irrational, although genuine belief that the claimants were seeking to get the respondent to act unlawfully. We therefore find that the reason for Mr and Mrs Martin’s dismissal was, in part, Mr Martin’s furlough suggestion.

[160]We are not, however, satisfied that this was the only factor that weighed into the respondent’s decision to dismiss. Mr and Mrs Martin were never told by Ms Aitken or anyone at the respondent that Mr Martin’s telephone communication had been understood to be a fraudulent suggestion, that undermined their integrity and honesty and trust that their employer had in them. The most that was said to Mr Martin by anyone on this matter was Ms Aitken simply saying something along the lines of “that’s not appropriate”.

[161]As set out above, we find that Ms Aitken was frustrated and annoyed at Mr Martin, for what she perceived to be his constant badgering and his going round in circles in his communication. As far as she was concerned, the issue around furlough had been dealt with. We find that this frustration was passed onto the Board, if not expressly, then implicitly, in the manner in which Ms Aitken communicated with the Board about the Martins. The Board became annoyed at Mr Martin’s persistence, in the manner in which he was dealing with his complaint around lack of furlough pay.

[162]We find further that the Board understood that the Martins did not have two years’ service, and also thought that they were casual workers (not employees). The point about their understanding of employee status was made again at this hearing, despite the previous finding of Employment Judge Anstis, that the claimants were employees.

[163]We find that the Board thought that it could terminate the claimants’ contracts without any process, and without any risk of litigation.

[164]We find that the combination of the unreasonable understanding of the furlough suggestion, the fact that Mr Martin was proving to be difficult, and the respondent’s understanding of the claimants’ employment status, were the reasons for the claimants’ dismissal.

[165]In terms of Mrs Martin’s cancer, as Ms Aitken said in cross-examination; “...Mrs Martin’s illness never came into any of the decision-making – that is why it was never considered to be a factor in the decision-making”.

[166]This evidence actually related to the decision as to whether to pay the claimants any furlough pay. However, we find that this was in fact true of all decision-making taken by the respondent in relation to Mr and Mrs Martin. The fact that Mrs Martin had cancer was considered irrelevant by the respondent. Conclusions Length of service/wrongful dismissal

Conclusions

[167]In order to determine whether the Tribunal has jurisdiction to deal with the ordinary unfair dismissal claim under s98 ERA, it is necessary for us to determine whether or not the claimants were in fundamental breach of their employment contract. This requires us to consider the actions of Mr Martin, and by proxy Mrs Martin.

[168]The respondent alleges that the claimants were in fundamental breach of their contract, by Mr Martin making a fraudulent suggestion.

[169]We have found above, that Mr Martin did not make a fraudulent suggestion, or anything that could have been taken to be such. Further, he did not breach trust and integrity as suggested by the respondent.

[170]In light of the facts as we have found them to be, we find that Mr Martin and therefore Mrs Martin did nothing to equate to a repudiatory breach of their contract of employment justifying summary dismissal. Mr Martin’s furlough suggestion was not sufficient to amount to a fundamental breach of contract; it was innocent and innocuous.

[171]This leads us to two conclusions. Firstly, the claimants were entitled to their statutory notice pay of one week. Therefore, the respondents were in breach of contract by not paying that figure. As such, the claimants’ breach of contract or “wrongful dismissal” claim regarding their notice pay succeeds.

[172]Secondly, due to the effect of s97(2) ERA, the claimants’ period of service is extended by one week, meaning that the notice would have expired on 4 March 2021. As such, both claimants have exactly 2 years’ service, meaning that the tribunal has jurisdiction to deal with their unfair dismissal complaints under s98 ERA. Reason for dismissal

[173]Given the fact that we have found that the claimants had two years of service, the burden of proof in relation to the reason for dismissal for the ordinary unfair dismissal claim, and both automatic unfair dismissal claims, is on the respondent.

[174]In relation to the dismissal claim under the head of direct discrimination, unfavourable treatment, and victimisation, the burden of proof initially asks us to consider whether there is evidence from which we could conclude, in the absence of any other explanation, that the respondent had discriminated against the claimants. If that burden is met, then the burden shifts to the respondent to show that they have not discriminated against the claimants (s136 EqA).

[175]Both claimants were asked the question as to why they thought they were dismissed. The claimants’ answer to this question is of limited, if any, use to us: what we need to consider are the thought processes, motivations, and conscious or unconscious reasoning of those who made the decision to dismiss. Mr Hoyle made the point in submissions that this is a claim manufactured by the claimants’ solicitors. We do not accept this. Lay persons frequently know or feel that they have been wronged in the course of their employment, unsurprisingly without necessarily being able to pigeonhole their claims within the correct legislation. They quite rightly then seek legal expertise and advice from lawyers. It is the lawyers’ job to then frame their clients’ complaints within the most appropriate legal framework.

[176]We have found as a fact that there were three reasons for dismissal:176.1 Ms Aitken’s unreasonable understanding of the furlough suggestion;

176.2 the fact that Mr Martin was proving to be difficult; and,

176.3 the respondent’s understanding of the claimants’ employment status.

[177]Below, we consider in turn each of the claims relating to dismissal. Direct disability discrimination – s13 EqA

[178]In considering the mindset of the decision makers, we conclude that Mrs Martin’s cancer simply did not enter the respondent’s mind. We have set out Ms Aitken’s evidence in our findings of fact above, and have found that, to the respondent, Mrs Martin’s cancer was simply irrelevant to its decision making in general.

[179]As such, Mrs Martin’s disability, and Mr Martin’s association with that disability, were not the reason for their dismissal, in that Mrs Martin’s cancer was not a significant influence on the respondent’s decision-making.

[180]The direct discrimination claims for both claimants therefore fail. Discrimination arising from disability – s15 EqA

[181]At the point at which the decision was made to terminate Mrs Martin’s contract of employment, the respondent knew of her disability. The respondent had actual knowledge of Mrs Martin’s cancer on 26 January 2021 - [112].

[182]We have set out our findings as to the three reasons for Mrs Martin’s dismissal in our findings above. We are not satisfied that her absences in December due to her cancer impacted on the respondent’s decision to dismiss at all. We conclude that her December absences were not an effective cause of her dismissal.

[183]We therefore reject this claim, and it fails. Indirect discrimination – s19 EqA

[184]We are satisfied that a PCP existed, in that the respondent implemented a policy that only those employees who had “demonstrated a frequency of regular working prior to closure” in December 2020 would qualify for furlough pay - [105]. This is clear from the wording of the 13 January 2021 email at [105].

[185]The application of that PCP meant that Mrs Martin suffered a disadvantage, in that she was unable to attend work with the required regularity/frequency in December 2020; she was unable to comply with the PCP. The ultimate consequence of this was that she was not paid furlough during Lockdown 3. Her inability to attend work was due to her cancer, and associated surgery.

[186]We have to consider whether the PCP places the claimant at a particular disadvantage compared to those who do not share her disability.

[187]We note the following evidence:187.1 Mrs Martin was diagnosed with breast cancer in late 2020;

187.2 She was signed off as unfit to work due to surgery and recovery from 16 December 2020 to 4 January 2021.

[188]We compare Mrs Martin’s case to a group of people who have not been recently diagnosed with breast cancer. We consider that Mrs Martin’s evidence that she needed a two-week period off work for surgery and recovery soon after diagnosis as evidence that those with newly diagnosed breast cancer are likely to need time off work for some form of medical procedure and recovery.

[189]Compared to others without newly diagnosed breast cancer, we consider that she (and others sharing her specific protected characteristic) would be more likely to need time off work for medical procedures and recovery.

[190]We therefore conclude that Mrs Martin was placed at the requisite particular disadvantage by the PCP.

[191]The respondent has not raised the defence of justification, and so this claim succeeds. Failure to make reasonable adjustments – ss20/21 EqA

[192]As above, we are satisfied that there was a PCP in place.

[193]Mrs Martin was placed at a substantial disadvantage, in that she could not comply with the requirement to work regular hours in December, due to her cancer, and related surgery. This ultimately meant that Mrs Martin did not receive furlough pay for Lockdown 3. We consider that, objectively, losing out on pay that would otherwise have been available to her is a substantial disadvantage; it is more than minor or trivial.

[194]The reasonable adjustment suggested by Mrs Martin is that the respondent should have paid her furlough pay, and so in effect set aside the December requirement. It was also suggested by the claimants that the respondent could have used a different reference period, as opposed to just looking at December 2020 attendance.

[195]We conclude that this would have been a reasonable adjustment to make, to pay Mrs Martin furlough pay. The respondent refused the claimants’ request to pay furlough pay on the basis of the financial burden it would place on it - [117]. However, in fact there would have been a very limited cost to the respondent, in the realms of £3 per month, given that, by this point, the respondent had agreed with other employees not to pay the 20% difference between furlough pay and full pay.

[196]The respondent’s case is that it did not have knowledge of Mrs Martin’s disability until the email of 26 January 2021 - [109]. This, however, pre-dates the date on which it made its final decision not to pay Mrs Martin furlough pay. This decision took place on 2 February 2021 - [117]. Therefore, the respondent had the requisite knowledge of the claimant’s disability at the point it made its final decision on this issue.

[197]In terms of the respondent’s knowledge that the PCP would likely place Mrs Martin at a disadvantage, we find that the respondent had the requisite knowledge by the time of its final decision. It was aware, by the time of Ms Aitken’s email of 2 February 2021, that the claimant had been unable to comply with the PCP due to her disability and related surgery.

[198]Therefore, at the time of making the final decision not to make reasonable adjustments, the respondents had the required knowledge.

[199]Mrs Martin’s claim of failure to make reasonable adjustments therefore succeeds. Victimisation – s27 EqA Protected act

[200]The first question is whether the three alleged protected acts actually amount to protected acts at law.

[201]The protected acts relied upon are:201.1 Mr Martin’s email of 26 January 2021,

201.2 The grievance statement, dated 28 January 2021; and

201.3 Mr Martin’s email dated 24 February 2021.

[202]The suggestion that any of the telephone calls between Mr Martin and the respondent amounted to protected acts was not pursued by the claimants.

[203]We are satisfied that the emails of 26 and 28 January 2021 are protected acts. In the 26 January email, Mr Martin disclosed that Mrs Martin had cancer and made specific reference to the EqA, suggesting that “with this background to our situation, there was more than enough reason to grant furlough”. This is in our view clearly “doing any other thing...in connection with [the EqA]” as required by s27(2)(c) EqA.

[204]In relation to the email of 28 January, it is specifically stated that “the fact that you have limited the furlough eligibility period to one month, puts Ellen at a disadvantage because of her disability” - [115]. This is a clear allegation that the respondent has not acted in line with its obligations under the EqA, and so satisfies the definition of protected act under s27(2)(d) EqA.

[205]Mr Martin’s email of 24 February 2021 is a complaint in relation to the grievance process. It includes the words “this matter could be amicably resolved by furlough being paid”. It is alleged that this is a threat of litigation, and therefore falls under s27(2). We are not satisfied that an objectively reasonable interpretation of Mr Martin’s words is a threat of litigation. We conclude that nothing in the 24 February 2021 email constitutes a protected act. Reason for detriment (dismissal)

[206]We have found that there were three reasons for dismissal, as set out above. One of those reasons was the fact that the respondent considered Mr Martin to be frustrating, and a pain in his persistence regarding furlough pay and the grievance process.

[207]The question then becomes whether it was the protected acts themselves, or the manner in which the protected acts were made, that led to the view that Mr Martin was difficult (“the separability principle”).

[208]We conclude that it was the manner in which Mr Martin raised his concerns, in other words the fact that he was tenacious in pursuing his complaints, and Ms Aitken’s feeling that they were going round in circles, that led the respondent to be frustrated by Mr Martin.

[209]Therefore, we find that it was not the protected acts themselves that was the reason for the decision to dismiss, but the manner of doing those protected acts.

[210]The claim of victimisation is therefore rejected. Ordinary unfair dismissal – s98 ERA

[211]To the extent that part of the reason for dismissal was a conversation that was deemed to be gross misconduct, we will consider the Burchell factors. We remind ourselves of the conduct alleged by the respondent to have led to the claimants’ dismissal – Grounds of resistance [38] paragraph 6.2.23: “the claimants’ persistent demands of the respondent to misuse the furlough payments amounted to unethical behaviour, casting doubt on their integrity and honesty”.

[212]We have already accepted that Ms Aitken had a genuine belief that Mr Martin had made a fraudulent suggestion.

[213]However, this belief was not based on reasonable grounds, following a reasonable investigation. The claimants never had the benefit of a hearing or meeting to discuss the allegations: the claimants were not even informed of the allegations against them. At no point were they confronted with the fact that Ms Aitken thought Mr Martin had suggested something that she deemed to be a suggestion of fraud, or that his words were deemed to have cast doubt on their integrity and honesty.

[214]The claimants therefore had no opportunity to explain themselves. In light of the actual words that Ms Aitken now says were used by Mr Martin, we do not accept that those words in themselves were reasonable grounds for holding the belief that Mr Martin was asking the respondent to misuse the furlough scheme, or that Mr Martin was guilty of unethical behaviour. No investigation was done to explore; firstly what precisely had been said, secondly what precisely had been meant by Mr Martin, and thirdly whether Mr Martin’s intent had been blameworthy/fraudulent.

[215]We therefore conclude that the dismissal was substantively unfair.

[216]No procedure at all was followed. It was submitted by Mr Hoyle that, in the case where there is “persistent malcontent of the workforce”, it would be futile to have a procedure. The index case is not such a case. Having seen and heard Mr Martin’s reaction to this suggestion that he was asking the respondent to do something fraudulent, we find that he was truly shocked and surprised that he could be accused of such a thing.

[217]We find that, had a disciplinary hearing and investigation been undertaken, Ms Aitken and the Trustees would not reasonably have been able to conclude that Mr Martin was making a suggestion of fraud, or that his behaviour was fraudulent or unethical. We conclude that the outcome of a fair process would have been that the matter had been an innocent misunderstanding.

[218]Therefore a procedure in this case would not have been futile. The claimant’s dismissal was procedurally unfair. Automatic unfair dismissal – s103A ERA

[219]It is the claimants’ case that they made disclosures of information that, in their reasonable belief, was made in the public interest and tended to show that a person had failed, was failing, or was likely to fail to comply with their legal obligation to(a) pay SSP to the claimants and

(b) not discriminate against the claimants.

[220]The alleged protected disclosures relied upon for this claim are:220.1 [113] email of 26 January 2021 – “If Egham are still unwilling to grant [Mr Martin] furlough, is there not a case for SSP?” (PD 1);

220.2 [112] email of 26 January 2021 - “Having taken their advice, we would like to impart the following information as we feel that this is relevant and is information you were not aware of and is covered under the Equality Act: the reason for Ellens surgery was that she had an operation for breast cancer” (PD 2);

220.3 [115] email of 28 January 2021 – “Therefore, the fact that you had limited the furlough eligibility period to one month, puts Ellen at a disadvantage because of her disability and Paul because of his selfisolation due to him being in contact with a pupil who had Covid” (PD 3);

220.4 [118] email of 24 February 2021 – the full email is relied upon (PD 4).

[221]Taking each protected disclosure in turn, and dealing with PD 1 first. This is a question. A question cannot amount to a disclosure of information. Therefore, we find that this was not a qualifying disclosure.

[222]In terms of PD 2 this is simply the provision of information regarding the fact of Mrs Martin’s disability. It is not information that tends to show that the respondent has failed, is failing, or is likely to fail their legal obligations under the Equality Act. PD 2 is therefore not a qualifying disclosure.

[223]In relation to PD 3, this is a disclosure of information as opposed to just an allegation. The information that was conveyed was that the limiting of the furlough eligibility meant that Mrs Martin suffered a disadvantage because of her cancer. We conclude that Mr and Mrs Martin, reasonably believed that their words disclosed information about a breach of legal obligation.

[224]In terms of the question of whether, in the reasonable belief of the claimants, these words at [115] were made in the public interest, we bear in mind the Chesterton guidance:224.1 It is only the claimants’ interests that are served by the disclosure, as opposed to any others within the work force;

224.2 The respondent was a small employer;

224.3 The wrongdoing disclosed was inadvertent as opposed to deliberate discrimination against Mrs Martin;

224.4 A disclosure of alleged discrimination is a serious matter, therefore the nature of the alleged wrongdoing is serious;

224.5 Despite being small, the respondent is also a charity, and therefore it has to account for how it uses its funds: its trustees are under fiduciary duties, including the ways in which the charity’s funds are spent.

[225]On balance, we conclude that the disclosure was not, in the reasonable belief of the claimants, made in the public interest. This was more of a personal complaint. Therefore, PD 3 is not a qualifying disclosure.

[226]Finally, in relation to PD 4, there is no suggestion within this document of a breach of the obligation to pay SSP, or of the Equality Act. There is therefore no disclosure of information on [118] that, in the reasonable belief of the claimants, tended to show that a person had failed, was failing, or was likely to fail to comply with their legal obligation to(a) pay SSP to the claimants and

(b) not discriminate against the claimants. POD 4 is therefore not a qualifying disclosure.

[227]Therefore, we conclude that the claimants did not make any qualifying disclosures, and so the claim of automatic unfair dismissal due to whistleblowing fails. Automatic unfair dismissal – s104 ERA

[228]Here, the phrase relied upon as being an assertion of statutory rights is the sentence at [113]: “If Egham are still unwilling to grant him furlough, is there not a case for SSP?”.

[229]Under s104 ERA, it is a precondition that the assertion made be one that a statutory right has already been infringed at the time of the assertion being made.

[230]Here, the sentence relied upon is a question. It is not a statement, or assertion, that the respondent has already failed to pay SSP, but a query as to whether SSP may be payable.

[231]We therefore conclude that the sentence relied upon is not an assertion of a statutory right that is protected by s104.

[232]The claim of automatic unfair dismissal because of the assertion of a statutory right therefore fails. Polkey

[233]There was a wholesale lack of procedure in this case. Mr Hoyle made the point that the claimants were dismissed on the respondent’s understanding that they were still casual workers and that as casual workers they would not be entitled to a disciplinary process.

[234]We do not understand this argument, given the stage of litigation we are now at. A tribunal has found, as a matter of law, that the claimants were employees. They were therefore entitled to a disciplinary process. One was not done.

[235]As we have said above, we consider that a procedure would have made a difference. Had a fair and reasonable procedure taken place we conclude that no fair dismissal could have occurred. Therefore, there will be no reduction under this heading. Contributory fault

[236]Mr Hoyle relied on two points to argue that a reduction should be made for contributory fault of the claimants:236.1 the claimants withheld information about Mrs Martin’s disability and “that muddied the waters”;

236.2 Mr Martin’s conduct in correspondence and in telephone calls contributed to the state of affairs. Mr Hoyle posed the question “could [the claimants] have done something different?”.

[237]Whether or not the claimants could have done something different is not the test under s123(6) ERA. The test is whether any of their conduct was blameworthy.

[238]We find the suggestion that the withholding of Mrs Martin’s diagnosis “muddied the waters” to be disingenuous and misguided. At the time of the decision to dismiss, the respondent was perfectly clear that Mrs Martin had cancer, and that this was the reason for her surgery on 1 December 2020. In any event, we consider that initially withholding something so personal and sensitive as a cancer diagnosis could in no way be viewed as blameworthy.

[239]Turning to Mr Martin’s conduct, we have already found that he was not guilty of making a fraudulent suggestion that was intended to lead the respondent to commit fraud, or do anything illegal in any way. We conclude that nothing within the telephone conversations or email communications from Mr Martin amounts to blameworthy conduct.

[240]Therefore we make no reduction for contributory fault. REMEDY JUDGMENT

Conclusions

[1]The respondent shall pay the first claimant £435.12 as damages for breach of contract. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay.

[2]The respondent shall pay the second claimant £555.52 as damages for breach of contract. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay.

[3]The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the compensatory award payable to the first and second claimants by 20% in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992.

[4]The respondent shall pay the first claimant the following sums:a. Basic award – £652.68

b. Compensatory award – £11,313.12 Note that these are the actual sums payable to the first claimant after any deductions or uplifts have been applied. 10.2 Judgment - rule 61 February Case No: 3312048/2021 3312049/2021

[5]The respondent shall pay to the second claimant the following sums:a. Basic award - £833.28

b. Compensatory award – £14,443.52 Note that these are the actual sums payable to the second claimant after any deductions or uplifts have been applied.

[6]The second claimant is awarded £1,455.73 as financial losses flowing from her discrimination claims (pre-dismissal discrimination).

[7]The second claimant is awarded £15,000 as injury to feelings flowing from her discrimination claims (pre-dismissal discrimination).

[8]The second claimant is awarded interest on the sums in paragraphs 6 & 7 from 2 February 2021 to 22 March 2024 in the sum of (£365.26 + £3,763.65 = ) £4,128.91.