Mrs L Henry v Red Rag Marketing Ltd and Mr J Parker: 3312437/2023

EMPLOYMENT TRIBUNALS

Case No 3312437/2023

Between

Mrs L HenryClaimant

Red Rag Marketing Ltd and Mr J ParkerRespondent

Before

Employment Judge Findlay

Members

Ms C Whitehouse

Ms J Buck

Mr M Timm (instructed by counsel) for respondent

Mr Randall (instructed by advocate) for claimant

Date 3 April 2025

JUDGMENT

[1]The claimant’s claim of discrimination arising from disability under section 15 of the Equality Act 2010 (against both respondents) is well founded and succeeds.

[2]The claimant’s claim of direct disability discrimination under section 13 of the Equality Act 2010 (against both respondents) is not well founded and is dismissed.

[3]The respondents are jointly and severally liable to pay the claimant the total amount of £14,195.89 in respect of injury to feelings, being an award of £12,500 in that respect together with interest at 8% for 619 days (£1695.89). Approved by: Employment Judge Findlay 3.04.2025

REASONS

[1]The issues are set out at page 49 of the agreed bundle in the order of Employment Judge Reindorf KC and are attached as a schedule to these reasons. There are two claims, direct disability discrimination under section 13 of the Equality Act 2010 and discrimination arising from disability under section 15 of that Act. In each case, the act of less favourable or unfavourable treatment is said to be the claimant's dismissal on the 10th of August 2023.

[2]The respondents accept that at the relevant time the claimant was a disabled person by virtue of her cancer diagnosis and that the respondents knew about this from on or about 31 May 2023.

[3]Following a discussion at the start of the final hearing, both parties accepted that the hypothetical comparator for the direct discrimination claim would be a Business Development Executive who was also in their probationary period with the first respondent and who needed to be absent for a similar period but for reasons not related to disability, rather than the comparator at paragraph 5(5) of Judge Reindorf’s judgment. No actual comparators were relied upon.

[4]The respondents also accept that the claimant’s sickness absence after 17 July 2023 arose in consequence of her disability but denies that the absence was a cause of her dismissal.

[5]Mr. Parker, the second respondent, had not lodged a separate response on his own behalf, but adopted the response of the first respondent. Mr Timm confirmed this at the start of the hearing.

The hearing:

[6]We had a hearing bundle running to 166 pages. We heard from the claimant and her husband Ashley Henry and read a statement from Mrs. M Begy, a client introduced to the respondents by the claimant. Mr Timm had no questions for Mrs. Begy provided the claimant was not relying on the allegation regarding GDPR at paragraph 8 of Mrs. Begy’s statement, which she was not. For the respondents we heard from Mr Jamie Parker and Mrs. Marie Owen, a Management Consultant.

[7]The

[8]We checked whether anyone required reasonable adjustments, but they did not. Mrs Henry agreed she would let us know if she required a break, but did not require one.

[9]Initially a statement was received from Cristina Neag on behalf of the claimant, but the respondent objected to it being admitted as it was provided late and Mr Randall confirmed after discussion with Mrs Henry that he would not rely upon it, so the Tribunal disregarded it.

[10]We received an updated schedule of loss from the claimant on the second day of the hearing.

[11]On occasions when a party, representative, witness or Tribunal member became disconnected from the CVP hearing we paused the hearing and checked what the relevant person had last heard and re-started from that point.

[12]On the final day of the hearing, during the Tribunal’s deliberations on remedy, Ms. Whitehouse lost her broadband connection. There was disruption of the internet in her local area. We informed the parties, who were willing to allow the Judge and Ms. Buck to conclude their decision as a two-person tribunal, but thankfully Ms. Whitehouse was then able to re-join by telephone and the Tribunal concluded its deliberations as a full panel and delivered the remedy judgment that day.

Relevant Facts

[13]In April 2023, the claimant Mrs Henry was working as a sales executive for a digital marketing agency called Run PPC. She applied for a job as a business development executive (“BDE”) with the first respondent, a competitor of Run PPC.

[14]Mrs Henry was not subject to restrictive covenants in her role with Run PPC, which meant that she could potentially bring some of its existing clients with her to the first respondent.

[15]She was successful in her interview and by the 15th of May 2023 she was issued with and signed a contract of employment, see page 55 to 65 of the agreed bundle. She was to commence working on the 1st of June 2023. At pages 62 to 64, the contract contained provisions which would prevent the claimant from competing with or poaching clients from the first respondent for six months after she left its employment.

[16]The second respondent, Mr. J Parker, is described as the managing director and “controlling mind” of the first respondent. He contacted the claimant on the 17th of May 2023 to ask if she could start work with the first respondent at an earlier date, and after negotiating with her former employer the claimant started work with the first respondent on the 22nd of May 2023.

[17]Very sadly, on the 30th of May 2023 the claimant was diagnosed with breast cancer. She telephoned Mr. Parker on the 31st of May to inform him of that fact. On the balance of probabilities, we accept the claimant’s evidence that during that call she informed Mr. Parker that her former employer, Run PPC, had offered to allow her to return to its employment and to support her through her treatment, by allowing flexible hours, paid leave to attend medical appointments and time off. In his evidence, Mr. Parker was unable to recall when the claimant told him this (whilst accepting that she did), but we accept the claimant’s evidence.

[18]We accept that Mr Parker said that the claimant should stay with the first respondent and that he would support her through her illness, and that as her role was flexible and she was working from home remotely, she could work around her medical appointments.

[19]There was some discussion in the evidence about whether Mr. Parker said that he would fully support the claimant or that he would support her “as far as he was able”. This does not make a huge difference as far as we are concerned, because, obviously, an individual can only help so far as they are able.

[20]The claimant continued to work after her diagnosis, and in the month of June 2023 her sales were £4340 net, £5009 gross. These were recurring amounts, that is paid to the first respondent monthly as long as the client remained with it.

[21]The claimant's evidence, which we accept, was that her target for June 2023 was half of the usual target. She initially could not recall what the usual target was, but we accept Mr Parker’s evidence that it was £8000 and the claimant’s evidence that her target for the first month, that is the month of June 2023, was half of that, £4000 and that she exceeded that. We were fortified in our view that the claimant was likely to be correct that the target was half the usual target as this was corroborated by the claimant's husband Mr Henry, who remembered that the claimant had been happy that she had hit her target in June 2023, and we accepted his evidence about this.

[22]The claimant said that the targets, as far as she knew, were gross, that is, inclusive of VAT and Mr. Parker said that they were not. Whatever the case, as we have said, on either view the claimant hit her target in June 2023.

[23]The claimant's evidence was that in the weekly sales meetings with Mr Parker and the rest of the first respondent’s staff team, whilst others were subject to criticism from him she was not, and that Mr Parker was happy with her progress. When questioned about whether the claimant was ever criticised for her performance in the weekly sales meetings, Mr. Parker did not answer the question directly, and said that he could not recall any specific criticism of her work. We accept the evidence of the claimant and her husband that the feedback from the first month was positive with no cause for concern.

[24]The first respondent employed one other BDE, Christian Parker, the second respondent's brother. Mr. J. Parker, the second respondent, accepted the claimant’s evidence that Christian Parker was underperforming at the time that she was employed by the business. We can see from page 149 in the bundle that C. Parker made no sales at all in June 2023. There is a dispute as to whether the July figures on page 151 related to the claimant or Christian Parker. It is true that no sales are shown for Christian Parker for July 2023 on page 156, and that no sales are shown under the heading “Lauren July data” on page 151, but the claimant told us that the figures set out above this heading are also her sales figures. We noted that the numbers in the left-hand margin on page 151 do not follow sequentially from those relating to Christian Parker on pages 156. The screenshotted information is not entirely clear, but we considered that the respondents must be in possession of the correct information about the relative sales made by the claimant and Christian Parker in July 2023. They have chosen not to disclose this information. On the balance of probabilities, therefore, if we need to resolve this we would accept the claimants evidence that the figures on page 151, £2985 net or £3383 gross related to the claimant for work she did prior to 17 July 2023.

[25]Ultimately, however, we do not consider that this evidence is crucial, as Mr Jamie Parker accepted in evidence that Christian Parker was underperforming and that broadly, that the claimant Mrs Henry performed better than Christian Parker during the periods June and July 2023 when she was at work. He said that he enjoyed working with the claimant and thought she was good at what she did.

[26]We note that the claimant had gone out of her way to assist Christian Parker to improve his performance by giving him her personal lead list and providing him with templates that she had used in her previous employment - see pages 158, 159 and 160.

[27]On the 4th of July 2023, the claimant had her first operation. We can see from page 73 that the claimant engaged in work both before and immediately after her operation on that day, although the second respondent encouraged her to “rest up”. She continued to work from home the following day and until 17th of July, when she became ill with a post operative infection. She was certified as unfit for work for six weeks with the reason of “postoperative complications” from the 18th of July until the 28th of August 2023. This is at pages 76/77 of the bundle.

[28]Typically, the claimant informed the second respondent on the 18th of July that she thought she was unlikely to need as much time off as was permitted by the sickness certificate. We find that the claimant was a good and dedicated worker who was committed to the first respondent's business. We accept the evidence of the claimant and her husband that she did a small amount of work while certified as unfit for work but that she was generally not well enough to do so during that period.

[29]Then on the 10th of August 2023, the second respondent emailed the claimant, telling her that she was dismissed with one week’s notice – see page 80. In the claimant’s words, this came “out of the blue” as far as she was concerned. Her one week’s notice terminated her employment on the 17th of August 2023.

[30]The respondents’ case is that they were in financial difficulties, and this was the reason that the claimant’s employment was terminated when it was. We accepted the evidence of Mrs Owen, an independent management consultant who has been advising the second respondent Mr J Parker since 2020, that the first respondent was experiencing some financial difficulties before the claimant was employed at the end of May 2023, and that as part of a plan to improve the first respondent's financial situation the claimant was recruited. The idea was that she would bring in new business and improve the revenue situation. The claimant was not told this when she was recruited, nor was this explained to her in the termination email.

[31]One of the striking features of this case was the respondents’ unwillingness to disclose financial information about the company, although they wished the tribunal to accept that it was financial difficulties which caused the termination of the claimant’s employment.

[32]We accept that there was a meeting between Mrs Owen and the second respondent in or about July 2023, which is referred to as an “urgent meeting” in paragraph 8 of Mrs Owen’s statement. They decided in principle that it was necessary to restructure the company if the business was to continue. We accept Mrs Owen's evidence that she did not discuss with Mr. Parker which staff or contractors were to have their contracts terminated and that this was solely a question for Mr Jamie Parker.

[33]As we have stated above, Mr. Parker’s evidence was unclear about the scale of the difficulties faced by the business and reluctant to give details. He did say, and we accept, that one of the first respondent's biggest clients had left it in June 2023. He said that this client had contributed around 25% of the company's revenue, but we did not know (and were not told) what the total revenue figure was. Mr. Parker initially said, in answer to a question from the Judge, that he could not remember the turnover of the first respondent for the financial year 2022, although he says in paragraph 11 of his witness statement that there was a decrease in turnover of £5439.06 between the financial year ending 2022 and the financial year for 2023. This suggests detailed knowledge of the figures.

[34]Under questioning from the judge, Mr. Parker eventually clarified that the financial year for the first respondent ends in December each year, so that the financial year for 2022 would end in December 2022, and the financial year for 2023 would end in December 2023. Ultimately, he clarified that the turnover for 2022 was about £350,000. The Judge pointed out to Mr. Parker that based on that level of turnover, a reduction of less than £5500 did not seem substantial. Mr. Parker acknowledged this, and said that the reason that the reduction in turnover was not substantial was that he had taken action to reduce staffing costs in late 2023. We note that most of the reductions in staffing costs took effect no earlier than October 2023.

[35]On the 10th of August 2023 also, Mr. Parker ended his contractual arrangement with Richard Forbes, a freelance media buyer, see p79.The stated reasons were increasing demands of clients (which meant that the time difference between the UK and where Mr Forbes was based was creating difficulties and extra work for Mr Jamie Parker), and in addition a downturn in new clients, which had caused the need for a re-structure. This was the same date that the claimant’s contract was terminated.

[36]On the 11th of September 2023, Mr. Parker was in touch with a contractor called Abhay and stated that he didn’t think that Abhay would join a meeting “with no active clients”. Then on the 12th of October 2023, page 83, Jamie Parker was in touch with Abhay again saying that he had decided to scale the team back “a little” due to a slowdown in clients.

[37]We can see from pages 84 and 86 that on the 11th of October 2023 Jamie Parker gave his brother Christian Parker notice that his role was at risk of redundancy. We accept that Christian Parker was made redundant by the 1st respondent by the end of October 2023.

[38]On page 85, we can see that on the 20th of October 2023 Jamie Parker wrote to a contractor called Edward, citing major concerns regarding his performance and terminating their arrangements with immediate effect.

[39]We were told and accept that a further contractor called Will Fisher left the company voluntarily in August 2023.

[40]Although in, for example, paragraph 38 of her statement, the claimant questioned whether the respondent had terminated its arrangements with some contractors and with Christian Parker, but this was not put to Mr J Parker by Mr Randall.

[41]To summarise, we accept Mr Parker's evidence that he ended his agreements with freelance contractors during October 2023 as well as making his brother Christian redundant, so that only four staff remained at the first respondent at that point.

[42]Although the claimant, in replying to Mr Parker's e-mail dismissing her, initially said that she understood, and simply queried whether her last month of commission would be paid in addition to her week’s notice, she sought legal advice subsequently and made her claim on the 27th of October 2023, after contacting ACAS on the 19th of September 2023, so her claims are in time.

Relevant Law

[43]The respondent accepts that the claimant was disabled at the relevant time by virtue of her cancer diagnosis (by virtue of paragraph 6 of schedule 1 of the Equality Act 2010 (“EA”) and accepts that it knew of her disability on or about the 31st of May 2023.

[44]In respect of the direct discrimination claim, section 13(1) of the EA provides that a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. The claimant alleges that both respondents treated her less favourably than they would treat other people who were not disabled by dismissing her on the 10th of August 2023 and that this was because of her protected characteristic of disability.

[45]The claimant relies on a hypothetical comparator in this respect and both parties agreed at the final hearing that the hypothetical comparator described at paragraph 5(5) on page 49 of the agreed bundle is incorrect. They agreed that the correct comparator for the section 13 claim is a BDE employed by the first respondent, who, like the claimant, was still in their probationary period and who needed to be absent from work for up to six weeks for a non-disability related reason (see Shamoon v RUC). The parties accepted, when this was pointed out by the Judge, that the hypothetical comparator should be the same or nearly the same as the claimant, except that the comparator must not have the protected characteristic in question, here, disability. See also section 23 of the EA, which provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.

[46]We have to decide, as set out in paragraph 5(6) on page 49, whether the claimant has established facts from which we could conclude that the reason for her dismissal was disability. This is a reference to section 136 (2) and (3) of the EA, the burden of proof provisions. Section 136 provides: “(2) if there are facts from which the court could decide, in the absence of any other explanation, that a person contravened the provisions concerned, the court must hold that the contravention occurred. (3) but subsection 2 does not apply if A shows that A did not contravene the provision. “Court” in this context includes an Employment Tribunal – section 136(6)(a).

[47]As was stated by Lord Justice Mummery in the case of Madarassy, the claimant must show facts from which we could conclude that the respondents discriminated against her, not just that there is a possibility that they did. It is sufficient if the claimant's disability had a significant influence on that decision (Nagarajan v London Underground).

[48]The claimant’s second claim, under section 15 of the EA, is of discrimination arising from disability. Under section 15(1), a person(a) (A) discriminates against a disabled person

(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability and (15(1)(b)) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Subsection 2 provides that this 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.

[49]The question, therefore, is whether the respondents treated the claimant unfavourably by dismissing her because of something arising in consequences of her disability. In this case, the respondent accepts that dismissing the claimant was unfavourable treatment and that the claimant’s absence from the 17th of July 2023 arose in consequence of her disability - see paragraph 5(12) on page 50 in the agreed bundle. The claimant says that the reason for the unfavourable treatment was her disability related absence during that period, but the respondent disputes this.

[50]The disability related reason, here the claimant's absence, does not need to be the only reason for the dismissal, if it significantly influenced this treatment - that is, if it was a more than trivial influence on the decision to dismiss – Simler P (as she then was)in Sheikholeslami v University of Edinburgh

2018 IRLR 1090

[51]According to Simler P in Pnaiser v NHS England and another

2016 IRLR 170

, it having been accepted by the respondents that the claimant’s dismissal is capable of being unfavourable treatment by them, we must focus on what caused the treatment, that is the reason in the mind of the alleged discriminator, but keeping in mind that the motive is irrelevant.

[52]As noted above, the respondent denies that the claimant's absence was a more than trivial reason for her dismissal and says that it needed to dismiss her because of the financial difficulties which it faced at the relevant time.

[53]If the claimant establishes that her disability related absence was a more than trivial cause of the decision to dismiss, the respondent wishes to rely upon the defence of justification as set out in section 15(1)(b) of the EA, that is, that dismissing the claimant was a proportionate means of achieving the legitimate aims of cutting costs for the first respondent, to ensure financial stability and to allow it to continue trading. The burden of proving justification under section 15(1)(b) rests on the respondents. If the respondents establish that they had a legitimate aim, we must make our own objective assessment of proportionality, balancing the needs of the employer against the discriminatory effect of the treatment upon the claimant (see for example the case of Hardy and Hanson's PLC v Lax

2005 ICR 1565

CA).

[54]We should consider the impact of the claimant’s absence on the business as well as the effect of the treatment upon her, but we must critically evaluate the respondents’ evidence about that. The means chosen to achieve the alleged legitimate aim, in this case the claimant’s dismissal, must(a) correspond to a real need on the part of the respondent;

(b) be appropriate with a view to achieving the legitimate aim and

(c) be reasonably necessary to that aim. This involves consideration of whether less discriminatory measures could have achieved the aim in question.

[55]Mr. Parker was added a second respondent to the proceedings by Judge Reindorf at the hearing on the 12th of July 2024. Mr Timms did not dispute that, if the tribunal found that there had been a breach by the 1st respondent of section 13 or section 15 because of Mr Parker's action in dismissing the claimant, Mr. Parker would also be liable under section 109 of the EA.

[56]At the remedy hearing, Mr Timm accepted that if the respondents were liable, they would be jointly and severally liable for the remedy to the claimant as the damage caused by each is the same and indivisible (Sivanandan

[2013] ICR 672

CA). Application of Law to Facts

[57]Regarding the claim of direct discrimination under section 13 of the Equality Act 2010, has the claimant proved facts from which we could conclude that the respondents treated her less favourably (by dismissing her) than they would have treated a non-disabled comparator, that is someone who was also in their probation period with the first respondent and who needed to take up to six weeks off for a non-disability related reason?

[58]We do not consider that the claimant has done so. The comparator cannot be Christian Parker (and the claimant does not now suggest that he is an actual comparator). He was at work and did not need to be absent for any reason at that time. Under section 23 of the EA, there must be no material difference between the comparator’s circumstances and the claimant’s circumstances (apart from the protected characteristic itself).

[59]We accepted the evidence of Mrs Owen that the first respondent was experiencing some level of financial difficulty before the claimant was recruited, and that she was recruited in an effort to boost sales of its services. We also accepted Mrs Owen’s evidence that she had agreed with Mr J Parker in July 2023 that there was an urgent need to make changes to the structure of the business in order to save money, although she did not know exactly how he would carry that out.

[60]We did not accept Mr Parker’s evidence that the reason he decided that it was the claimant who had to be dismissed in August 2023 was because she was on her probation period and Christian Parker was not. He accepted that when the claimant was able to work, she was performing better than Christian Parker. He also accepted that the cost of the claimant to the company was relatively low, as she was entitled to only £109.40 per week statutory sick pay and commission on previous sales. The commission was paid as a percentage of the sale for the first three months that the client stayed with the first respondent. On Mr Parker’s case, if the claimant only made sales in June, then the commission would end in August anyway. Nor did he adequately explain why he decided to terminate the claimant’s employment rather than ending his contracts with the remaining media buyers, Abhay and Edward, who were self-employed contractors and were retained until October 2023, despite the obvious dissatisfaction Mr Parker expressed with Edward’s performance.

[61]We inferred that the reason that the claimant was selected to be dismissed was that she had been recruited to generate revenue but could not do so because of her sickness absence. Therefore, we find that if someone else who was in their probation period as a BDE with the first respondent had needed up to six weeks off for a reason unrelated to disability at that time, they too would have been likely to be dismissed, as they too could not have fulfilled their role of generating new business. So the claim of direct discrimination fails.

[62]The complaint of discrimination arising from disability is a different matter, however. As we have said, the respondent accepts that the claimant's absence arose in consequence of her disability and that dismissal amounts to unfavourable treatment. We therefore had to decide whether the claimant’s disability related absence was a significant, that is a more than trivial, reason for her dismissal.

[63]The respondents argue that the claimant's absence was not a significant cause of her dismissal, and that the reason was the financial difficulties of the first respondent.

[64]As noted above, we did not accept that the reason Mr J Parker chose to dismiss the claimant at the relevant time was because she was on her probationary period. Mr. J Parker accepted that when she was at work the claimant's performance was better than that of Christian Parker. This suggests that the claimant’s absence was a significant factor in his decision to terminate her employment rather than that of C Parker.

[65]Mr Parker also did not explain why he chose to dismiss the claimant at that time rather than, say, terminate his arrangements with the remaining freelance media buyers who, on his own evidence, did not generate new sales. He did not provide any documentary evidence to suggest that it would have been more costly to end his arrangements with the buyers than it was to terminate the claimants arrangements, so as to explain why most of them were retained until October 2023.We accepted the claimant’s evidence that the performance of the one media buyer whose contract had been terminated at the same time as hers, Richard Forbes, had been criticised by Jamie Parker as RF was slow to contact clients due to being in a different time zone.

[66]We also noted the content of the e-mail on page 80, in which Mr J Parker dismissed the claimant. In that e-mail, Jamie Parker says: “due to circumstances beyond our control within the business although it was our aim to keep you on the books and support you through your illness it has become untenable to achieve this aim. It is with regret we have to inform you that your position in the business is no longer viable.”

[67]Mr. Parker did not explain then or indeed know why the claimant's position was no longer viable, or why the first respondent could no longer “keep her on the books”. The cost of doing so was minimal. In our view, the reference to the respondents no longer being able to support the claimant through her illness in the email indicates that the claimant’s sickness absence was a significant influence on Mr Parker’s decision to terminate her contract with the first respondent. In other words, putting all this evidence together, we infer that the claimant's absence was a significant cause of the respondents deciding to select her for dismissal at this point in time, the 10th of August 2023.

[68]The respondents accept that the claimant’s absence arose in consequence of her disability.

[69]We therefore have to consider whether the respondents have shown that the claimant's dismissal was a proportionate means of achieving a legitimate aim. The legitimate aim is set out in paragraph 5(14) on page 50 in our agreed bundle. It is stated to be the aim of ensuring that the first respondent company could cut costs to ensure its financial stability and to allow it to continue trading.

[70]The respondents have provided only vague and scanty evidence of the first respondent's financial position. we accept the evidence of Jamie Parker and Mrs Owen that in July 2023 they had a discussion, after the first respondent lost its biggest customer, when it was decided that changes had to be made to save money and to ensure the first respondent's financial stability. We accept that the decision by the 2nd respondent to dismiss the claimant on the 10th of August was part of his plan to reduce costs, although we have found that his decision to choose the claimant was also significantly influenced by her disability related absence. Reducing costs in order to ensure financial stability was a legitimate aim.

[71]We then had to decide whether dismissing the claimant was a proportionate means of achieving a legitimate aim. The burden is on the respondents to persuade us of that. We must objectively evaluate the evidence, balancing the needs of the employer to dismiss the claimant, including the effect on the employer of her absence, against the discriminatory effect of the treatment on the claimant. The discriminatory impact on the claimant of being dismissed whilst off sick and being treated for cancer was severe. She lost her employment at a point when she was least able to find an alternative.

[72]By contrast, the respondents have not established by evidence that the first respondent reasonably needed to dismiss the claimant on the 10th of August 2023 in order to save costs. As we have noted above, the respondents have been reluctant to provide details of the financial difficulties that the first respondent was experiencing, simply asserting that it was necessary to dismiss the claimant to address these problems. We have seen that the cost of the claimant to the first respondent during her absence was relatively low, £109.40 SSP per week plus commission which she had earned from previous sales and was therefore entitled to be paid anyway.

[73]The respondents had other, less discriminatory, options available to them. They could have changed the claimant’s status to that of a freelance contractor and paid her on a commission only basis; when Mr Randall put this to the 2nd respondent he accepted that this was “hypothetically” possible. Alternatively, they could retained the claimant on the relatively minor cost of statutory sick pay to see if she would return to work in the short term (she was entitled to the commission from past sales anyway. Or it could have terminated its relationships with all its freelance media buyers in August 2023 instead of dismissing the claimant at that time – she was capable of generating new work, they did not. This was a definite option as we were told that their work was ultimately absorbed by Jamie Parker, as were the roles of the claimant and Christian Parker.

[74]The respondents have not provided evidence that the first respondent saved more money by dismissing the claimant on 10 August 2023 than it would have by ending its relationships with all of its freelancers at that time, or of why it was more beneficial to it to dismiss the claimant at that point than the remaining freelancers. The only other person dismissed at that time was a freelance media buyer in respect of whom the second respondent had performance concerns.

[75]So, we find, the respondents have not established by evidence that it was reasonably necessary for them to dismiss the claimant on the 10th of August 2023 in order to cut costs.

[76]In any case, we find that the relatively small amounts of money saved by dismissing the claimant (effectively £109.40 per week while she was off sick) were outweighed the significant discriminatory effect of that action, and the claimant’s complaint under section 15 of the Equality Act 2010 therefore succeeds.

[77]We considered the case of Charlesworth v Dransfield’s Engineering Services Limited, EAT 0197/2016, quoted to us by Mr Timm, but we reminded ourselves that these cases are fact sensitive. We consider that the Charlesworth case can be distinguished on the basis that the second respondent accepts that when at work, the claimant was a good worker who, it was hoped, would improve the performance of the business. In contrast, in Dransfield it was held that the claimant's absence simply allowed the respondent to identify that it could get by without him, and that it could have identified that in other ways whilst he was at work. This is not the case here, as the respondents accept that the claimant was recruited to improve revenue and was in the process of doing so when she became ill.

Remedy

[78]Issues: The claimant produced an updated schedule of loss on the second day of the hearing claiming financial loss, injury to feelings, aggravated damages and interest. The respondent argued that the claimant would have been dismissed at the end of her probationary period on 22 August 2023 in any case given the respondent’s financial difficulties and argues that the claimant failed to take reasonable steps to mitigate her losses.

[79]The claimant is seeking aggravated damages (as she puts it) in her schedule of loss, on the basis that the respondent had behaved in a high handed, malicious insulting and oppressive manner by: “attempting to cover up the discriminatory dismissal by suggesting the claimant was dismissed by reason of financial reasons due to a change in the business. It was further suggested in the ET3 that other employees were dismissed for the same reasons as the claimant, which (the schedule of loss asserts) is unsupported by the evidence. It is alleged that the respondent induced the claimant to commence employment, despite the claimant offering to remain with her ex-employer, under false assurances of being supported through her illness. Once the claimant's clients were brought over to the Respondent business the claimant was dismissed. The Respondent got the claimant to sign restrictions under her new employment contract, which would prevent her from taking the client she brought over to the Respondent’s business back as her own clients. The above conduct has aggravated the injury to the claimant's feelings.” [sic]

[80]Relevant Law: We should seek to place the claimant in the position in which she would have been had the discriminatory act of dismissal not taken place, and she is entitled to be compensated for the direct and natural consequences of the discrimination in question – Bullimore v Pothecary Witham Weld UKEAT 0189/10/JOJ, Underhill P.

[81]In respect of financial losses, we must consider, and seek to evaluate, the chance that the claimant would have been dismissed in a nondiscriminatory fashion in any event when she was dismissed or at some future date: Abbey National PLC and another v Chagger

2010 ICR 397

[82]We are aware that we would need to be 100% confident that nondiscriminatory dismissal would have occurred before reducing financial loss to zero after a particular point in time, and therefore that it is important to try to evaluate the percentage chance that a nondiscriminatory dismissal would have occurred.

[83]The burden is upon the respondent to persuade us by evidence that the claimant's dismissal would have occurred for non-discriminatory reasons, and when.

[84]The respondent also argues that the claimant has not taken reasonable steps to mitigate her loss, and again the burden is on the respondent to persuade us of that.

[85]A claimant should not receive more financial compensation than she would have received in the absence of discrimination and therefore any income replacement benefit such as Employment Support Allowance (ESA) should be taken into account.

[86]In assessing damages for injury to feelings, we should not allow our award to be inflated by feelings of indignation about the respondents’ conduct and should remind ourselves that the purpose is to compensate the claimant for her injury to feelings, not to punish the respondent. We must focus on the effect of the conduct not the gravity.

[87]Awards should not be too low so as to diminish respect for the law or too high so as to amount to untaxed riches. We must bear in mind the real value of the amount awarded.

[88]We have taken account of the comparables cited by the parties, and of the case of Eddie Stobart Limited v Caitlin Graham,

2025 EAT 14

per Judge Clarke. Mr Randall cited this case to us, in particular for the guidance given at paragraph 52 of the judgment, but we have also taken account of Judge Clarke's summary of the law at paragraphs 30 to 37 of the judgment.

[89]At paragraph 52, Judge Clarke says that it may be helpful to consider firstly, the claimant’s description of their injury, secondly the duration of the consequences, thirdly the effect on past current and future work and finally the effect on personal life or quality of life.

[90]We have taken account of the Vento guidance as it applied at the time that the claim was lodged. At the relevant time, the lower band was from £1100 to £11,200, and the middle band was £11,200 to £33,700. Neither party suggested that the upper band was applicable.

[91]The claimant is seeking aggravated damages. According to Underhill P in the case of Commissioner of the Metropolitan Police v Shaw,

2012 ICR page 464

, aggravated damages are best thought of as a subset of injury to feelings to reflect compensation for the additional distress caused by the aggravated features in question. They are not punitive in character.

[92]Under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, by regulation 2, where an Employment Tribunal makes an award under the relevant legislation (which includes the EA as a result of transitional provisions for the previous legislation), it may, subject to the following provisions of these regulations, include interest on the sums awarded and shall consider whether to do so without the need for any application by a party in the proceedings.

[93]Interest is simple interest accruing from day-to-day and is currently at the rate of 8%. In respect of interest on a sum for injury to feelings, under regulation 6 interest shall be for the period beginning on the date of the act of discrimination complained of, here the 10th of August 2023, and ending on the day of the calculation (26 March 2023).

[94]In the case of all other sums of damages or compensation, interest shall be for the period beginning on the midpoint date and ending on the day of calculation. The midpoint date, under regulation 4, means the day which falls halfway through the period beginning on the date of the act of discrimination and ending on the day of calculation.

[95]Mr Timm accepted that as the injury caused by the first and second respondents is the same, they should be jointly and severally liable for it.

[96]Findings of fact: The claimant said in evidence that if she had not been dismissed on the 10th of August 2023, she would have returned to work by the 17th of August 2023. We find that given her work ethic, previous history and drive she would have been capable of doing at least some work in the week commencing 17th of August. On the 23rd of August 2023, however, she had further surgery in connection with her cancer (p121) and needed additional pain relief on 25 August 2023 (p121). As a result, we considered that she would have been unfit for work and back on statutory sick pay by the 23rd of August for a week thereafter.

[97]The respondent argued that if the claimant was not dismissed on the 10th of August she certainly would have been on the 22nd of August when her probation period ended. We are unable to accept that - the claimant had been doing well whilst at work, better than the other BDE, and in our view, it was the fact that she was absent for disability related reason that was the main operative factor behind her selection for dismissal at that point, August 2023. C Parker and the other two freelance media buyers were retained until October 2023. Given the minimal cost of retaining the claimant to the business at that time and the likelihood that she would return to work after her surgery, we do not consider that there is a significant chance that her employment would have been terminated on the 22nd of August 2023 (at the end of her probation) in the absence of discrimination.

[98]We consider that the claimant would, on the balance of probabilities, have returned to work around the beginning of September 2023 and would have made some sales, but that she would not have worked throughout that month as we know that she attended Accident and Emergency on the 21st of September 2023 with acute pelvic pain (p 121). From the evidence available, we find that in October 2023 she would have been at work and would have made some sales.

[99]Given the evidence we have heard and our findings on liability, however, we find that there is an 80% chance that the claimant would have had her contract terminated by no later than the 31st of October 2023. This is based on the evidence of the second respondent and Mrs. Owen to the effect that by the end of October 2023, Jamie Parker was committed to absorbing whatever roles he could in order to reduce the costs to the business, and from the fact that he made Christian Parker redundant by the 31st of October.

[100]The 20% chance of the claimant’s employment continuing after October 2023 reflects the possibility that the claimant could have converted significant lead or leads in September/October 2023 so that, despite the financial problems the company was facing, Jamie Parker might have been persuaded to keep her on after that date. Mr Parker told us that he liked working with the claimant and would have liked to continue working with her if he could. The claimant’s health improved from November 2023 onwards and if she had been retained, we can foresee no significant chance that she would have left or been dismissed thereafter. There is therefore a 20% chance that the claimant would still have been at work from 31st of October 2023 until now if she had not been dismissed.

[101]The respondents have argued that the claimant has failed to mitigate her loss. The burden is on it to establish that she failed to take reasonable steps in that respect.

[102]There is little evidence in the agreed bundle of the claimant’s efforts to find work. At pages 117 to1 19 that is evidence of applications which the claimant made on the indeed website. It seems as if she applied for seven jobs in July 2024. The claimant told us that she had not signed up with recruitment agencies, as she was restricting herself to jobs which were fully remote, and with flexible hours, to accommodate home medical treatment when necessary and her family responsibilities. She said that any jobs of that nature would, she considered, be on the websites that she signed up to rather than that being any benefit in dealing with a recruitment agency.

[103]She describes her reluctance to disclose her medical condition to future employers, which we can understand, and her lack of trust in future employers due to the manner in which the respondents had dealt with her, effectively dismissing her without any consultation when she was seriously ill.

[104]Particularly from the end of June 2024, when she was discharged to the patient follow up pathway and for scans every 12 months, the claimant does not appear to have had many medical incidents or appointments, according to page 123, on her timeline of her treatment.

[105]She did not persuade us, taking account of her statement and that of her husband, that she really needed to work from home or fully flexibly after the end of June 2024. Many employers nowadays will agree to staff working part of the week from home.

[106]From page 115/6 in the bundle, we can see that by the 1st of April 2024 the claimant was doing some freelance work, and that she earned more than £5000 sterling in that respect during that month. She was seeking work as a freelance worker on a website called “Fibre” and told us that in addition to the invoices at p115/6 she earned around £855 in August/September 2024 and about the same in February/March 2025.

[107]The claimant told us that the gap in her CV from August 2023 and a lack of references meant that she faced difficulty in finding new employment. However, we find that, despite the difficulties the claimant describes in finding alternative work, by the end of April 2024 she had already done some freelance work. We find that by making reasonable efforts, she could have obtained a role which would have suited her, whether remote or partly based in an office. She had more contacts by this time (from her freelance work) who could have given her references, and for example her former client Michelle Begy was prepared to give her a statement to support her tribunal case. Her statement says that the claimant was very good at what she did, and that Ms Begy did not blame the claimant for the difficulties she says she experienced after becoming a client of the first respondent. We deduced from this that Ms Begy was likely to have been prepared to give the claimant a reference if approached by her.

[108]It is apparent that the claimant is a good and dedicated worker who has balanced her role as primary carer for her children with her work in the past. She told us in her statement at paragraph 61 that she does not believe she will be able to trust an employer so as to have an employed role ever again, and that she fears that she has developed potential PTSD symptoms due to the respondents’ treatment of her. She did not provide any medical evidence to support a diagnosis of PTSD, however.

[109]It seemed to us that the claimant had made very little effort, since substantially recovering in June 2024, to find alternative employed work, and that she had unreasonably restricted the roles which she was prepared to consider. We were not satisfied, having heard the claimant give evidence about this, that she had made reasonable efforts to find such a role. It seemed as if she had applied for only a few roles in June and July 2024 and she showed us only one attempt at finding work in August 2024. It seems that she had thereafter effectively decided that she would become self-employed, as she states in paragraph 62 of her statement, and gave up looking for employed work.

[110]We considered that it would have been reasonable for her to take further steps to find an employed role, by expanding her job search to include partly remote roles, applying for more jobs online or through recruitment agencies and by using the new contacts that she made through her freelance work, and also former contacts such as Ms Begy, as referees. Using our general knowledge of the workplace and the job market, we consider that, certainly by October 2024, she should have been able to find a suitable alternative job earning at least as much as she did with the first respondent.

[111]In respect of injury to feelings, the claimant states at paragraph 51 of her statement that the way in which she was treated by the respondents, being informed of her dismissal by e-mail and without any explanation or discussion, left her feeling ashamed of her cancer as if it was something to hide. It also caused her to fear that if she disclosed her diagnosis to another employer or client, she risked being discriminated against again. We accept this evidence, and that such a fear is reasonable in the circumstances, although we did not consider that she made sufficient steps to overcome those feelings.

[112]We accept that, although the claimant has not provided medical evidence to us nor has she made a claim for compensation for personal injury, she has generally become more anxious about her ability to work and has lost confidence in her ability to work successfully. We accept that she felt abandoned and unsupported by the respondents.

[113]Being dismissed in these circumstances meant that the claimant and her family were also subjected to financial hardship which caused worry and distress. She points out at paragraph 54 of her statement that this affected not only her and her husband but that her children were exposed to the stress and worry that this financial instability caused the family.

[114]The claimant was forced to borrow money from family members in order to attend her treatment as she had lost her income and this obviously caused her and her husband to be embarrassed. As Mr Henry puts it in his statement and as we accept, the claimant lost her sense of worth.

[115]The circumstances in which she was dismissed have increased her anxiety about attending interviews and about whether or not she should disclose that she has had cancer when applying for jobs.

[116]She also has difficulty trusting any future employer as a result of being told that she would be supported during her illness and then being summarily dismissed.

[117]We accept the evidence of the claimant and her husband that the claimant went from being a confident woman, whose self-esteem was in part derived from her work to someone who felt diminished and less able to cope with working life.

[118]We consider, however, that the claimant has regained at least some confidence as she is in the process of building a business as a selfemployed worker. The claimant demonstrated strength of character during the course of the hearing and when she was being cross examined, and we feel assured that she will continue to gain in confidence from now on.

[119]In respect of the claimant’s allegations in support of aggravated damages, we accepted on the balance of probabilities that the first respondent was indeed experiencing some financial difficulties which had caused it to consider restructuring its business by the end of July 2023. We found, however, that this did not explain why the claimant was selected to be dismissed in August 2023 when others were not. We accepted, however, that the financial reasons meant that by the end of October 2023 the second respondent had decided to absorb as much of the workload of other employees as he could, so that, for example, Christian Parker's employment was terminated at this time.

[120]We did not accept that the respondents induced the claimant to remain with the first respondent, rather than returning to her previous employer, under false assurances of being supported through her illness, and/or so that the first respondent could obtain some of her clients. We accept that Mr Parker did intend to support the claimant during her absence as best he could. Over a period of time, however, as the first respondent's financial difficulties became more apparent to him, resulting in his meeting with Mrs Owen in July 2025, Mr. Parker perceived that the claimant's absence meant that she was not contributing to the first respondent and therefore that she should be one of the first workers to go.

[121]We do not consider that the respondents induced the claimant to accept restrictive covenants in her employment contract with the aim of dismissing her within a short period and preventing her from taking her clients with her. In our experience, it is not unusual for contracts of employment for business development executive such as the claimant to include similar restrictive covenants to those included in the claimant's contract with the first respondent, and we find that the restrictive covenants were included with a view to protecting the first respondent’s legitimate interests rather than in order to trick the claimant. The claimant’s contract of employment was signed on the 15th of May 2023, which was more than two weeks before her cancer diagnosis, and we do not accept that Mr. Parker intended to dismiss her as soon as she brought in previous clients at that time; we accept that the claimant was recruited in order to generate revenue for the business. Application of Law to Facts

[122]We therefore calculated the claimant’s financial losses as follows: based on her gross notice pay for a week of £517, net £480, she would have received an at amount to £480 between the 17th of August and the 23rd of August when she had surgery. She would then have been off sick again while recovering until the 31st of August, one week’s statutory stick sick pay of £109.43, a net total of £589.43. She has been paid separately for her commission due in August.

[123]In respect of September and October 2023, using the figures in the claimant’s schedule of loss as an average, we consider that she would have earned a net amount of £4050 (around £2025 per month). Then from the 1st of November 2023 until the 31st of October 2024, when we consider her losses would have ended if she had taken reasonable steps to find a suitable alternative role, this is a period of 52 weeks at £506.08 net, as per her schedule of loss, which amounts to £26316.16. 20% of this figure to reflect the 20% chance that she would be retained after 31 October 2023, is £5263.23 net.

[124]So the claimant’s total loss from 10 August 2023 to 31 October 2024 is £9902.66 net. But the claimant’s actual income to the 31st of October 2024, both “private” income from her freelance work of £5849.38 plus Employment Support Allowance of £129.50 per week, amounting to more than £7,000 in that period, exceeded that amount and so we can make no award for loss of earnings.

[125]In respect of injury to feelings and taking account of the Vento guidance, the general level of awards for personal injury in the county court and the value of money in real terms, we consider that this case falls into the lower part of the middle band of the Vento bands. Although in one sense this is a “one off” act of discrimination, we have focused, as we are obliged to do, on the impact on the claimant and not the respondent’s conduct itself. The impact has been moderately significant, which in our view merits an award in the lower part of the middle bracket, for the reasons which follow.

[126]We accepted the evidence of the claimant and her husband that her dismissal has affected her confidence substantially, and that this has affected her ability to trust new employers and to let them know about her history of ill health. The financial stress caused by suddenly losing her job also caused her significant distress and embarrassment. She has lost some of her self-worth and was made to feel ashamed that she was ill.

[127]We accept that the discriminatory conduct, that is her dismissal, has also affected her home and family life, causing worry and upset to both she and her husband which was then witnessed by her young children. The claimant was upset by that.

[128]The dismissal came when the claimant was at her lowest point given her cancer diagnosis and the fact that she had complications after her surgery, and this has caused her considerable anguish as she felt let down by the respondents, having trusted Mr Parker. These feelings of upset, worry and shame came at a point when the claimant was already (and very understandably) unnerved and distressed by her cancer diagnosis and treatment, adding to her concerns.

[129]We accept that her feelings of lack of trust in a future employer have persisted to some degree, although we do not accept that this is so significant as to mean that she is not capable of working as an employee. We consider that she was sufficiently robust to be capable of working as an employee from around June 2024 when she started looking for work. So, although there was a one-off act of discrimination, the impact on the claimant was significant and persisted for nearly a year.

[130]Likewise, although we accept that she will have some continuing feelings of lack of self-worth, although we consider that she had recovered her confidence to a large degree by mid-2024 when she had succeeded in obtaining some freelance work and was ready to seek full time work again. We remind ourselves that there is no claim for personal injury nor medical evidence about the psychological impact on the claimant.

[131]On the other hand, we remind ourselves that the claimant had not worked for the respondents long when she was dismissed and that there is a high probability that she would have lost her employment within about ten weeks in any case.

[132]Taking account of all these matters, we award £12,500 in respect of injury to feelings.

[133]We also consider it appropriate to award interest on that amount. There have been 619 days since the act complained of, 10th August 2023, so at 8% this gives a total of £1695 89. There is there for a total award including interest of 14,195.89. The respondents are jointly in several reliable for this amount as there is only one discriminatory act for which they were both responsible.

[134]We do not consider it appropriate in this case to make a separate award of aggravated damages. We have not accepted the basis of this submission as set out in the schedule of loss, that is that the first respondent's financial difficulties were fictitious and that the other workers whose employment or contracts were terminated were not dismissed for financial reasons. The second respondent did not know that the claimant would be diagnosed with cancer when he offered her employment in the middle of May 2023, and we do not consider that his offer to support the claimant as far as he was able once the diagnosis was obtained was a false assurance when it was given. We did not consider that the reason the claimant was dismissed was because she had brought clients with her and therefore was dispensable once they had become clients of the first respondent. As we have said above, we consider that the main reason that the claimant was selected to be dismissed in August 2023 was that she was absent for disability related reasons and that Mr. Parker therefore perceived that she was not contributing to the business and was therefore dispensable.

[135]We have taken account of the fact that the claimant was dismissed by e-mail, without consultation or proper explanation, when assessing the effect on her of the discriminatory treatment. Obviously, such conduct amplified her feelings of distress and worthlessness, and that is reflected in our award. Approved by: