Ms F MacDonald v Alpha Property Management and Services Ltd: 3312534/2021

EMPLOYMENT TRIBUNALS

Case No 3312534/2021

Between

Ms F MacDonaldClaimant

Alpha Property Management and Services LtdRespondent

Before

Employment Judge Quill

In person for claimant

No appearance or representation for respondent

Date 5 July 2024

JUDGMENT

[1]The hearing proceeded in the Respondent’s absence in accordance with Rule 47 of the Employment Tribunals Rules of Procedure.

[2]The correct respondent to this claim is Alpha Property Management and Services Ltd.

[3]The claim is not struck out (or rejected) for failure to comply with Tribunal Rules or early conciliation requirements. There was no failure to comply with Rules 10 or 12, and the Claimant obtained an early conciliation certificate prior to issuing the claim.

[4]The Respondent has not served a valid response. The purported response sent by email on 20 December 2022 is rejected because it is out of time, and the application for extension of time is refused.

[5]The Claimant had a contract of employment [in accordance with the definitions in section 230 of the Employment Rights Act 1996 and section 83 of the Equality Act 2010 respectively] between with the Respondent between around 4 May 2021 and around 24 May 2021. Case No: 3312534/2021

[6]On 26 July 2023, there will be a hearing before a judge sitting alone, in accordance with Rule 21, to determine liability and remedy. JUDGMENT having been sent to the parties on 14 June 2023 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The definitions of employee and worker appear in s.230 of the Employment Rights Act 1996. (“ERA”) 230.— Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services 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; and any reference to a worker's contract shall be construed accordingly.

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

[2]Section 83 of the Equality Act 2010 (“EQA” also defines employment for the purposes of that Act. (2) “Employment” means—(a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;

(b) Crown employment;

(d) employment as a relevant member of the House of Lords staff. (4) A reference to an employer or an employee, or to employing or being employed, is (subject to section 212(11)) to be read with subsections (2) and (3); and a reference to an employer also includes a reference to a person who has no employees but is seeking to employ one or more other persons.

[3]In EQA “employment” includes employment under a contract of employment which is a definition also used in s.230 ERA. Thus, for both acts, there does have to be a contract between the parties. If there is no contract between the parties then the claimant cannot be an employee.

[4]However, where there is a contract then there are a number of tests to apply in order to determine whether that is, on the one hand, a contract of service, (to use the old terminology), or an contract of employment , to use the more modern terminology, or, on the other hand, some other type of contract.

[5]Making the decision includes taking account of the following factors. Where some of these factors point in opposite directions, then it is necessary to weigh them up and assess their relative importance.a. There has to be sufficient control by the respondent (the alleged employer).

b. There has to be a mutuality of obligation

c. There has to be n agreement by the claimant to do the work personally.

[6]The degree of control which must be exercised by the respondent over the claimant in order for there to be a decision that the contract in question is a “contract of employment” is discussed in Ready Mixed Concrete v Ministry of Pensions and National Insurance [1968]. The factors relevant to mutuality of obligation are discussed in Carmichael v National Power.

[7]Outside the field of employment law the ability of the courts to look behind the a written express contract is limited to situations where the partis have a common intention to mislead a third party as to the true nature of the arrangement and that is called a sham in that sense but in the field of employment law, that is modified by the leading cases of Autoclenz and Uber v Aslam. A tribunal that is faced with an allegation that a written contract is not what it appears to be must consider whether or not the words in the written contract represent the true intentions or expectations of the parties. In doing so, it is relevant to take into account that the purpose of employment legislation (including ERA and EQA) is to provide protection, including to those who do not have equal bargaining power with the alleged employer.

The facts

[8]The claimant saw an advert on Facebook and applied. She was expecting to be an employee, if successful, based on the wording of the advert. During the discussions she was told that there were a number of applicants. The claimant does operate a business as a self-employed music teacher, but this post was not for music teaching. This post was to be a personal assistant. There was no discussion that the respondent planned to receive music teaching services, or to be a customer of the claimant’s business.

[9]She was told he application was successful. On 3 May 2021 she received an email from the director of the respondent which said, “Hope you are well please find attached the welcome letter and employment contract”. It then went on to say, “It’s best I hire you self-employed to save me tons of paperwork😊” and then it said, “after six months we can review and take things from there”.

[10]An attachment sent to the claimant was headed Terms and Conditions of Self-Employment. Amongst other things, it included:11.1 Clause 1 referred to terms and conditions including the particulars the company is required to provide in accordance with the Employment Rights Act , Employment Act 2002 and Working Time Regulations.

11.2 Clause 2 talked about a period of continuous self-employment.

11.3 Clause 3 started “You are employed as a self-employed contractor”. It went on to describe the duties of the post including “The company may require you to perform duties normally undertaken by others or to take on different or additional duties”. It said, “You are required to comply with the Company’s rules, regulations and policies for its employees from time to time in force”.

11.4 Hours of work were specified under Clause 4 which included amongst other things “You may be required to work additional ours and days including weekends as and when requested or when the proper performance of your work so requires.” It is stated that there is no entitlement to be paid extra remuneration. It said that “Due to the nature of the property business you will available 24/7 on call.”

11.5 Place of work was specified in Clause 5.

11.6 The suggestion made by the company was that the claimant would have to provide an invoice and that is in Clause 6. The claimant agreed to this clause feeling that she had no choice. She did not use the business name for her music teaching business in relation to the only invoice that she did supply in May 2021.

11.7 Clause 8 referred to holidays.

11.8 Clause 9 referred to exclusivity of service.

11.9 Clause 13 said that the claimant was expected to maintain a good standard of work performance and conduct at all times and if the standards fell below reasonable expectations then she would be liable to disciplinary action which could ultimately result in dismissal.

11.10 Clause 14 was headed Termination of Employment and said that “The notice period required by either party to this contract to terminate your employment will be one month” and added “Nothing in this contract prevents us from terminating your employment summarily.”

11.11 In Clause 15 under the heading “Severability” refers to, “These terms and conditions of employment”.

[12]My analysis is that the claimant was required by this written document to be under the control of the respondent on a day-to-day basis and that is what in fact happened once she started work for the respondent.

[13]The phrases in the written contract sometimes referred to self-employment but other types referred to employment. My finding that actually where they refer to employment, that is accurate, and the words “self-employment” were not genuinely agreed. In fact, for this contract, the claimant was not in business on her own account, and she was an employee of the respondent. That is the true nature of the agreement, and the attempt to present it as “selfemployment” is a failed attempt to present the agreement as a relationship that fell outside the definition of “contract of employment”.

[14]Given that there was the necessary degree of control (as well as mutuality of obligation) to show that this is a contract of employment, it is not necessary for me to address whether it would have been an “other” contract within the definition of worker for section 230(3)(b) ERA. However, as mentioned, the contract was one which required her to work personally, and the respondent was not a client or customer of her business. Therefore, the contract would have fallen within “Limb B” of section 230(3), but for the fact that it actually fell within “Limb A”. Similarly, the contract would have fallen within section 83(2) as “a contract personally to do work”, even had I not decided that it fell within that section as a contract of employment.

[15]At the hearing, no-one for the Respondent attended. Shortly after 10am, I spoke to the Claimant briefly to let her know that the clerks had attempted to contact the Respondent that day and the previous day without success, and that she should come back at 10.15am, to see if anyone for the Respondent had either arrived, or contacted the Tribunal to explain their absence. I monitored the video lobby and no-one from the Respondent attempted to join, and nor did they return the messages from the clerks.

[16]I had read the file in preparation for the hearing. 16.1. Notice of Hearing and case management orders had been sent to parties on 8 April 2023. It included orders for witness statements to be sent to each other by 2 May 2023 and the Tribunal by 1 June. I could see from the file that the Respondent had not complied with the latter and that the Claimant had emailed the Tribunal, copying the Respondent, to assert that it had not complied with the former. There had been no response from the Respondent. 16.2. The previous notice of hearing and case management orders had been sent on 13 March 2023. It was clear that the Respondent had received them because the Claimant applied for postponement of the hearing listed for 3 May 2023, and the Respondent had objected. The Respondent’s email, which made comments about the ET3, ACAS conciliation, and the Respondent’s identity, was considered by EJ Welch before granting the postponement to 8 June 2023. 16.3. As the 13 March notice made clear, the hearing was to(i) deal with the Respondent’s application to extend the time for submission of response and

(ii) decide the preliminary issue. 16.4. Notice of Claim had been sent on 19 July 2021, giving the Respondent until 16 August 2021. On 8 November 2022 (that is a year later), a letter had been sent to parties stating that no response had been received and judgment might be issued in accordance with Rule 21. 16.5. An email from Dilawar Khan, Director of Alpha Property Consultants, dated 21 November 2022 was sent to the Tribunal but not the Claimant. It denied the Respondent had seen the claim form. 16.6. On 20 December 2022, a letter was sent on the instructions of a judge stating that the Respondent would have to make an application for an extension of time. There had also been prior correspondence between the Respondent and Tribunal staff, including an email attaching ET3 response dated 10 December 2022, which commented on ACAS conciliation, the Respondent’s identity, denied the Claimant was an employee, and gave details of the correspondence with the Tribunal. Page 4 of 8 16.7. On 20 December, the Respondent made a formal application for extension of time in a letter headed “Dilawar Khan, Alpha Property Management and Services Ltd” and signed “Dilawar Khan”. On 21 December 2022, the Claimant objected to the extension of time. 16.8. The file was reviewed by a judge who gave the orders reflected in the 13 March 2023 notice of hearing.

[17]At around 10.15am, I unlocked the video hearing room to let the Claimant back in. The hearing room remained unlocked and the Respondent still had the opportunity to join. The Claimant’s preference was to continue with the hearing, and expressed the opinion that the Respondent was not likely to attend the hearing even if I postponed and re-listed. I agreed with that assessment and the hearing got underway.

[18]On checking with the Claimant, the intended respondent, and her alleged employer, was Alpha Property Management and Services Ltd. This matched the name in the ACAS certificate (except for word “Ltd”). It was also named in Box 2.1 of the claim form, albeit there it was preceded by “Dilawar Khan” followed by a comma.

[19]I was satisfied that there had been no (sufficient) reason to reject the claim.

[20]I did not immediately reject the application for extension of time for the response, but first discussed with the Claimant the documents which she had submitted to check I had received everything. Following that, I heard evidence on oath from the Claimant. This commenced around 10.30am, and lasted around 15 minutes, followed by a brief opportunity for the Claimant to make submissions. No-one on the Respondent side attended. The hearing room remained unlocked during this phase of the hearing.

[21]Shortly after 10.50am, I informed the Claimant that I was going to deliberate until 11.15am and to come back to the video room then. I was able to monitor the lobby during this period and no-one from the Respondent joined. Around 11.15am, the hearing resumed and I gave my decision and reasons.

[22]I refused the Respondent’s application for extension of time for the response. The proposed response had not been rejected under Rules 17 or 18. My decision was made under Rule 20, and I took into account the very familiar principles, including those in Kwik Save v Swain. The non-attendance by the Respondent and the failure to comply with orders for the hearing were relevant considerations, but not the only factors.

[23]Although the response was rejected, I still took into account all of the documents and information sent by the Respondent to the Tribunal, including the response form, when I made my decision on the preliminary issue.

[24]Based on Claimant’s evidence on oath, the documents that she had submitted and the documents that the Respondent had submitted, I was satisfied that I could reach a judgment on the preliminary issue, and I did so. Page 5 of 8 The Respondent’s application and my decision on it

[25]The Respondent submitted an email at 12:44 on 21 July 2023, attaching a 4 page letter, seeking reconsideration.

[26]One assertion made is that my decision “amended” the name of the Respondent. I do not agree. I interpreted the claim form, and my interpretation was that the intended respondent was Alpha Property Management and Services Ltd, which was the entity named in the ACAS certificate and which was the alleged employer. The fact that two extra words, and a comma, were written in Box 2.1 immediately preceding the company name were not an indication that “Dilawar Khan” had been the intended respondent. Furthermore, it was not my opinion that the Claimant had attempted to bring a claim against a company that she thought was named “Dilawar Khan, Alpha Property Management and Services Ltd” but rather that she had intended to bring the claim against Alpha Property Management and Services Ltd, and had included Mr Khan’s name in Box 2.1 because she believed that should be part of the address used on correspondence sent by the Tribunal.

[27]This was a case management decision and I do not change it. To the extent that the argument is that this decision was “made without notice to the Respondent”, I do not agree. The issue about how the Respondent was named in the claim form was flagged up in the documents submitted by the Respondent. The Respondent knew the hearing was going to address the application for extension of time. It also knew that a preliminary issue was to decide whether the Claimant had a contract of employment or not. For there to be a decision about whether she did have a contract of employment, there would have to be a decision about who the other party to the alleged contract was. The Respondent had received the Claimant’s witness statement (amongst other documents). The Respondent knew all about the hearing and, as mentioned below, is not arguing otherwise.

[28]The reconsideration application argues that Mr Khan chose not to attend the hearing, or to arrange any representation for the Respondent, based on legal advice. It repeats the arguments which I already considered that the Respondent did not deliberately fail to submit the ET3 on time. It is silent about alleged reasons for non-compliance with the case management orders, or about the exact date of the alleged legal advice. No copy of any written advice is supplied, only an email dated 19 June 2023 from a company with the word “Law” in its trading name, with the subject line “fees”. This is seemingly written in response to some suggestion from the Respondent that it might have received negligent advice; the email is consistent with what the reconsideration application states. For the purposes of deciding whether or not there are “no reasonable prospects", I have assumed that what the application says about the advice is true. Were the application to get through the ”no reasonable prospects” stage, I would require much fuller evidence before I made a decision about what the actual legal advice had been.

[29]Previous appellate decisions are a guide to what “the interests of justice” require, rather than suggestions that if a similar fact pattern is repeated in future then the decision should always be reconsideration granted, or Page 6 of 8 reconsideration refused, to match the outcome of the earlier case. That being said, the fact pattern here is vastly different to either Phipps (where the Court of Appeal made its own decision to grant reconsideration) or Marsden (where the EAT upheld a decision to grant reconsideration made by the employment judge). In each of those cases, the relevant party (the claimant in each of those cases) had appointed a representative; in the first case to conduct the litigation as a whole, in the second case to conduct a particular hearing. In the first case, the representative had not warned the party that the case might be struck out unless certain steps were taken; in the second case, the representative positively misled the tribunal about the reason for the party’s non-attendance (and had also told the party that they, the representative, would be at the hearing and this would be sufficient; the party had not been led to believe that the legal advice was to allow the hearing to proceed completely without attendance from their side, just that their own personal attendance – to give evidence, or at all – was not needed in order to obtain the desired result).

[30]In this case, the party (the Respondent) placed no representative on record. It simply decided that it was “safe” to allow the hearing to proceed without any attendance at all on its behalf (not merely having no witness evidence, but no-one to make any oral submissions either) on the basis that, at worst, a judgment would be issued against “Dilawar Khan, Alpha Property Management and Services Ltd” and the Respondent would treat that as unenforceable against it, as not being a judgment against it.

[31]Having not attended the hearing, and not got any of the outcomes they might have hoped for (either a decision that the Claimant was neither worker nor employee, or, at worst, judgment naming “Dilawar Khan, Alpha Property Management and Services Ltd” as respondent) it now seeks reconsideration on the basis that the advice was negligent and that it is not in the interests of justice that it suffer the consequences of that negligent advice.

[32]I am entirely satisfied that this is an attempt to have a second bite at the cherry. There were attempts to contact the Respondent by tribunal staff. By implication, the application is suggesting that the Respondent deliberately ignored those attempts for tactical reasons. Mr Khan, the director of the Respondent, knew what the hearing was listed for, and had corresponded with the Tribunal when it suited him (for example, to object to the Claimant’s postponement application) but when it did not suit him, he ignored the Tribunal’s communications (including the attempts made on my instructions on the day of the hearing).

[33]The interests of justice do not require that the Respondent have a second bite at the cherry in relation to my case management decision under Rule 20.

[34]In terms of my judgment on the preliminary issue, the application makes no comments at all on why the decision is said to be “wrong” in its interpretation of the facts or the law, or about what additional evidence the Respondent might have sought to produce on the preliminary issue had it attended (or had it complied with the case management orders for pre-hearing preparation). Page 7 of 8

[35]I heard from the Claimant. It is hypothetical whether I would have allowed the Respondent to cross-examine her had it attended. It would have had that opportunity as of right had it attended and I granted the extension of time for response; it might have been allowed to do so, at my discretion, had it attended and I had refused the application. The fact is that, of its own volition, it did not attend to cross-examine the Claimant knowing full well that I might issue a judgment that she was an employee (or a worker) but thinking that it could, by later arguments, avoid such a judgment having adverse consequences for it. That is not a good enough reason for me to decide that the interests of justice require that the judgment on the preliminary issue be revoked and that there should be a fresh determination.

[36]The application also goes on to comment about events after the preliminary hearing and asserts that what the Claimant has said in her witness statement provides a reason that it should be allowed to defend the case. These may or may not be points that it can potentially ask to have considered if and when a judge is making a decision under Rule 21(3), but they are not reasons for me to change my judgment on the preliminary issue.

[37]The Respondent also says that the Claimant is potentially seeking to add another respondent (namely Mr Khan, as an individual). If and when such an application is granted, Mr Khan might be ordered to file a response or the requirement for him to do so might be waived. Either way, my Rule 20 decision in relation to the current respondent is not relevant to whether any additional respondent will be able to defend any claims.

[38]For the reasons stated above, having considered the Respondent’s application, I am satisfied that there is no reasonable prospect of the original decision being varied or revoked, and the application is refused. RECONSIDERATION JUDGMENT The Respondent’s application dated 18 August 2023 for reconsideration of the (first) reconsideration judgment, sent to the parties on 4 August 2023 is refused as it has no reasonable prospects of success.

The Hearing

[39]And “OK I have to go and break my fast and pay… Speak later if u r awake…I’m coming after u [5 food emojis, nerd emoji, laughing emoji, tongue out emoji].”

[40]In evidence C said she felt the messages were of a sexual nature and she felt extremely uncomfortable but wasn’t sure how to respond as she wanted the job.

[41]On 23 April 2021 C had a second interview.

[42]On 26 April 2021 R2 called C and offered her the job, which she accepted.

[43]On 28 April 2021 R2 and C exchanged messages on WhatsApp regarding a migraine C had experienced. R2 suggested it might be stress related. C replied “Maybe! I didn’t feel stressed though…” R2 replied “Migraine is predominantly related to stress”. C replied “Yes true can’t believe I’m so weak [crying emojis & laughing emojis]”. R2 replied “Don’t make me worried now…lol”. C then asked R2 “Do you ever get stressed or are you a beast? [laughing emoji]”. R2 replied “I need sex when I’m stressed…lol Other than that I can handle everything lol. But I can put stress on others lol…As I’m 200 miles an hour [tongue out emoji, upside down face emoji].” To the comment “I need sex when I’m stressed”, C replied “Lol! That’s what your wife is for [laughing emoji]”. R2 then replied “She can’t cope sometimes…Haha. I’m Aries, remember [thumbs up and tongue out emojis].”

[44]R2 and C then exchanged messages about the Personality Colour Wheel and religion. R2 also sent C link to a video from Dragon’s Den.

[45]On 29 April 2021 R2 sent C a message saying “I didn’t hear back from you. Did I scare you by any chance [tongue out, laughing emoji”. C replied stating she watched the video while she ate dinner and then forgot to reply. She also said she was feeling better “like a boss lady again”.

[46]In evidence C said she felt disgusted by the exchange of messages but had felt compelled to respond in a light-hearted manner because she didn’t yet have a contract, although after a while she had stopped responding.

[47]Later at 22.07 at R2 asked C if she had had dinner and she replied she had eaten Mexican and stir fry. R2 said “I love Mexican. But for me Thai is my favourite followed by Indian [smiley face & tongue out emoji].” C replied “I love them all Indian, then Mexican, Thai, Italian, Pilipino, Spanish…bla bla bla [tongue out and smiley face emoji].”

[48]R2 replied “OK then be my guest when restaurants open… I will treat you to a nice curry [tongue out emoji].” C replied “Aww yay! Thank you haha [tongue out emoji]”. R2 replied “My wife will kill me…Lol [laughing emoji] That Tanzanian trip made her worry…Haha”. C replied “Oh well don’t it’s fine! I respect you guys’ relationship [smiley face emoji] it comes first.” R2 then replied “Oye, don’t worry, it was just a joke…God Frances [laughing emoji].” C then replied “I know haha but I just wanted to make it clear anyway haha [smiley face emoji].” R2 then said “Make it clear what? [perplexed and smiley face emoji]” and C repeated her message re respecting R2’s relationship with his wife. R2 said “I know but what’s that to do with Indian curry [perplexed emoji].” C said “So that your wife doesn’t need to worry! Haha”. R2 then said “Hahaha…She won’t even know…Lol”. C then said “OMG [hands over face emoji] this is getting worse and worse [six laughing emojis].” R2 then replied “Hahaha”. C sent a smiley face emoji. R2 then sent a message saying “Ur so funny” and C sent a message “Good” and a laughing emoji.

[49]C said in evidence that she didn’t believe the suggestion of dinner had been a joke and that she believed R2 only suggested it was a joke to deflect from the fact that his invitation was inappropriate, and that if she had responded with interest he would not have claimed it was a joke.

[50]R2 then said “Wives are very possessive of their business minded husband as they feel they are surrounded by beautiful women…So best not to tell everything and just enjoy life”. C replied “That makes sense! I agree [smiley face emoji] but in London I met many businessmen who took advantage of their partners trust and were dishonest and unfaithful to their partners and acted like it was normal… they even expected me to be the same without even asking! Maybe for some people it’s fine if they have an agreement to be open, of course it’s fine, everyone can do what they want! I even know some people and couples who went to orgies [two laughing emojis]. But after meeting so many businessmen like that I am always careful now. So what I am saying is as long as you are not hiding anything bad it’s fine, but it’s also none of my business so I will shut up now …lol” Then “Anyway a dinner is just dinner! I will never say no to food [smiley and laughing emoji].”

[51]R2 then said “Oh Frances..U have really come across bad people…Orgy and open relations… Yuk! [frown emoji].” C then said “Yup that’s why I was glad to leave London and the dirty side of the music business”. R2 then replied, ‘Everyone loves sex but there has to be a limit…” C then says “Anyway I am missing too much of OJ Simpson murder trial Netflix series. Keep being distracted hahaha”.

[52]After a further exchange of messages R2 then messaged at 23.29 saying “I’m a man of action. Don’t like winging women, they give me a headache and no paracetamol helps with that kind of headache…So I stay away an avoid the hassle…Lol U enjoy ur OJ [smiley face emoji]”.

[53]C was due to begin work on 4 May 2021. In the afternoon of 3 May 2021 R2 emailed C a contract which was amended late in the evening after an exchange of messages about holiday entitlement. C subsequently signed the contract and began work on 4 May 2021.

[54]C’s contract provided that her basic hours were 20 per week: Monday 11am-3pm; Wednesday (9am-3pm), Friday (10am-4pm) and Saturday (9am-1pm). However, the contract also provided that C might be required to work additional hours and days including the weekend as and when requested for which she was not entitled to any more remuneration as that obligation had already been taken into account in the determination of her salary level. Further that C would be available 24/7 on call to manage any emergency and non-emergency calls. C’s pay was £10 per hour and £100 per calendar month when working outside working hours. We note that the £100 appears to assume an extra 10hrs work per calendar month (or less than 2.5 hrs extra work per week).

[55]During her first few days of work, R2 spent most of the time explaining C’s responsibilities to her. He provided little documentation but initially told C she didn’t have time to write notes of her own. He then changed his mind and told her to take notes but that she mustn’t write too much and waste his time by making him wait. C’s evidence, which we accept, was that she was talked at for 7hrs and expected to remember it all instantly.

[56]On 5 May 2021 when C and R2 were visiting properties C was given a checklist of things to inspect but R2 told her not to write things down but just to listen and remember. At one property R2 listed 4 items that needed to be purchased but reacted with disapproval when C started to write a shopping list telling her she needed a “good memory for this job!” and exchanged an exasperated look with Anita – his PA who was on maternity leave but was with them at the time.

[57]On 6 May 2021 during an exchange of messages with C (again late in evening), R2 messaged C saying “Women are so good at excuses that I get bored [tongue out emoji]”.

[58]On 7 May 2021 during an exchange of messages with C (again late in the evening), R2 WhatsApped her while she was eating dinner to say “Don’t choke…Slowly Tiger. [tongue out emoji].”

[59]The same evening R2 criticised C for not actioning tasks immediately during the day. When she responded by messaging that he didn’t let her do things immediately because they were training. He replied “Then what will I do meanwhile? Watch u do ur work [thinking emoji, shocked emoji]”.

[60]On 10 May 2021 R2 messaged C at 8am asking her to start work at 8.30am rather than 9am (as per her agreed hours).

[61]On 12 May 2021 when a potential tenant cancelled a viewing R2 messaged C to say “Oh nooo…U really are not lucky today [cry face emoji]…Need to work hard and change your luck [silly face emoji].”

[62]It also became apparent that R2 was not happy with the fact C had another part-time job giving singing lessons. He frequently expressed how much he hated that his previous PA had taken on too much outside work, warning C that she would end up like his previous PA, Ieva. He asked her to provide him with a full schedule of her singing lessons and music writing time outside of work.

[63]By way of illustration of the level of contact with and control over C that R2 expected we set out below the chronology of events on 14 and 15 May 2021.

[64]On Friday 14 May R2 complained about C not responding to a nonemergency text message sent after 6.15pm, saying he thought her Friday class finished at 6.15pm.

[65]The same Friday evening R2 called C at 7.30pm because she had not sent a report on time (C says because of a tenant’s check-out running over). He criticised her for about 30 minutes saying, “how could she forget things”, “how could she not see things” and told her “he wasn’t sure this is going to work”. After the call he continued to send her WhatsApp messages until nearly 9.30pm with further criticisms and suggested they discuss everything the following day.

[66]On Saturday 15 May 2021 C sent R2 a WhatsApp saying his treatment of her the previous evening had reduced her to tears. She wanted to have a good working relationship with him but did not appreciate the way he spoke to her, which had to improve. On receiving the message R2 “dropped everything” to come into the office to “train C more” and take her out for a coffee.

[67]However later the same day (Saturday 15 May), R2 sent C a message at about 5pm berating her for not checking her phone since 12.43 and said he had handled 2 last minute bookings. C apologised and said she had had a family barbecue and hadn’t expected to get anything from him.

[68]At 6.30pm the same day, R2 messaged C again, to check something else out, and in that exchange of messages said “keep in mind that you don’t take up too much stuff to affect this job because I will notice very quickly…Remember the job was offered based on your availability and that’s how I decide who to offer the job etc…I hope we don’t end up like Ieva”.

[69]On Monday 17 May 2021 R2 again told C he was concerned about her singing lessons and music commitments, and that he didn’t want a repeat of what had happened with Ieva. C’s evidence, which we accept, was that from that point R2’s comparisons of her to Ieva became worse and that “the badgering, invasiveness, constant berating and putting me down increased”.

[70]During that week C’s mental health declined sharply. She was not sleeping, crying and experiencing migraines and suicidal thoughts. She dreaded taking calls from R2 but knew she would be berated if she didn’t answer the phone.

[71]On Friday 21 May 2021 C had a headache which turned into a migraine. At 7pm R2 WhatsApped C to tell her that she had failed to notice a tenant’s text message to vacate sent a week. C said that in fact the business was constantly running advertisements for the property as a whole in any event. Nevertheless, R2 called C at 8.30pm and berated her for about 20 minutes, saying the empty rooms were her responsibility. That night C couldn’t sleep and says she felt trapped and suicidal because of the clauses in her contract regarding notice and purporting to hold her liable for training costs should she leave within 6 months.

[72]The next morning, R2 WhatsApped C and instructed her to work from the office (rather from home) after a tenant check out. C said she couldn’t because she had a family birthday zoom call with her brother but agreed to work 30 minutes extra instead.

[73]On the way to the tenant check out C broke down in tears. She completed the checkout and went home. During the family zoom call she again broke down in tears. Her family advised her to speak to ACAS on the Monday (24 May). R2 continued to message C, criticising her about work related matters until about 8pm that evening.

[74]On Sunday 23 May 2021 R2 sent C a WhatsApp saying “We need to meet tomorrow in the office at 9am to talk about recent performances. Nothing to worry about but I want to see big improvement and we need to discuss this face to face…”. C replied “I’m feeling really ill and unwell. I’m not sure I’ll be better enough to work tomorrow. I will let you know late tonight tomorrow morning. I’m so sorry for the inconvenience”. That message was sent at 11.39. R2 replied at 12.25 saying “I’m so sorry to hear that. What’s wrong? Yes please let me know this evening”. At 18.18 R2 sent C a further message, this time to her personal phone saying ‘Please have a rest tomorrow…No need to work…I’ve sent you a message long time ago and u haven’t replied so thought would send u here.”

[75]Pausing here we record there was a dispute as regards whether this message was sent on 23 May 2021 or 10 May 2021. The dispute stems from the fact that although there is a screenshot of the message with the date heading of 23 May there is also a screenshot with the date heading 10 May. C gave evidence explaining how, as she scrolled the screen of her personal phone, the date of 10 May hung briefly in the window with the message underneath before rolling to the next message from R2 on 23 May 2021, and says this must have been the moment when the screen shot was taken. Notably in correspondence prior to the hearing, when presented with this explanation, R2’s solicitors had appeared to accept the message had been sent on 23 May 2021. Nevertheless, during the hearing Ms Millin took issue with the date of the message. Given that R2 said in evidence he could not remember when the message was sent, that Ms Millin offered no explanation as to how, if it had been sent on 10 May, there could also be a screenshot of the message with the dateheading of 23 May, and that 11 May 2021 was in fact a Tuesday (which was not one of C’s working days) we are satisfied that the message was sent by R2 on 23 May 2021.

[76]On Monday 24 May C informed R2 she was ill and would not be able to come into work. She contacted ACAS and then drafted a resignation letter. It stated “As of today, Monday 24 May 2021, I am resigning with immediate effect. This is due to bullying, derogatory comments and harassment. I am unable to give notice because of the untenable effect on my mental and physical health. I have taken advice from ACAS and am serving you this notice per their advice.” She then sent the letter to a family friend (a retired lawyer) to check over.

[77]In the meantime, R2 continued to message C. At 10.28 he wrote ‘I want to speak to you as a matter of urgency.” At 11.34 C replied “Sorry I’m still not feeling well. Can you please write it instead.” At 11.37 R2 wrote “I wanted to know what is wrong with you as you have just said ill and unwell.” At 11.50 R2 wrote “I cannot keep waiting forever…I need to know as there is a backlog starting to pile up…So want to know whether you want to come back or shall I start hiring because your silence and not willing to talk is not helping the situation out.” At 13.47 R2 wrote “It’s over 2 hours now and still I have not heard from you in spite of seeing u online. I feel ignored and this is not acceptable. You have until 1.30pm to reply before I make my final decision”. At 20.48 C replied saying she had had a bad migraine all day and didn’t know when she would feel better. “Maybe give it a few more days”. She then stopped checking her messages from R2 as she found it too stressful.

[78]On Tuesday 25 May 2021 C filled out an appointment request form at her doctor’s surgery to get help for her mental health and received a sick note from work for 2 weeks.

[79]That afternoon she checked her messages from R2 again and saw he had dismissed her the previous evening. He had written at 21.14 (on 24 May) “You have been online all day and you are telling me you were unable to reply??? I rang you and you ignored to answer…I’m sorry but your behaviour is not accepted and I have to let you go. Please meet me in the office on Wednesday 9am and return all company belongings and money.”

[80]She also saw that R2 had sent another message at 10.45 earlier in the day (25 May) “Hope you are feeling better today. Can you please reply to my message as I need the company property by tomorrow morning. If you can’t come to the office, then I’m willing to come to your house.” At 12.16 he had then sent yet a further message “‘By 1pm if you don’t reply then I will have to report to the police for theft. They will be attending your property today, so please avoid the hassle and get back to me ASAP…You are acting very strangely and really upsetting me now.”

[81]In a further exchange of messages C responded at 16.03 “I am not going to meet you at 9am tomorrow however I fully intend to return all of the company’s belongings and money in a few days as soon as I am well enough. I will inform you when. I will not be meeting you in person as I have already suffered enough severe bullying, harassment and sexual harassment from you. This is why I am off sick due to the severe impact on my health, just like your previous PA. I am highly concerned you will not pay me my full wages…as the contract is exploitative…I already spoke to ACAS and citizen’s advice about this yesterday, as well as a lawyer friend, about the bullying and harassment and exploitative contract, and I am just awaiting further legal advice on this…”

[82]R2 replied at 16.18 “You have until 9am to return my stuff and all the money by 5pm. Otherwise you will be reported to the police and I will send my people to your house to get it. Believe me you don’t want to mess around with me. So try me now! Sexual harassment, harassment and bullying. All my calls are recorded for your kind information, so bring your baseless claim and I will sue you for defamation. You are messing with the wrong person. You have no case at Tribunal or ACAS even if you were employed, let alone self-employed!!! Go and educate yourself first before talking nonsense to me! Tell your lawyer friend to help you, because you have no idea what you are dealing with. It is you who has ignored my messages time after time and caused my company a great loss, and if you are not careful, I will come after you for your negligence that has cost me my time and money! You have until 5pm to return the money and the company belongings, else you are asking for trouble and if you don’t believe me, then wait and see…You have been given a deadline of when I want my belongings and money returned. You miss those deadlines, and you are going to regret the consequences!”

[83]R1’s property was returned on the morning of 26 May 2021. When C suggested that as regards the money she return £647.95 (being the difference between the amount she held on behalf of R1 of £1,462.19 and the amount of wages she was owed of £814.24) R2 sent a further message at 11.25 threatening to bring charges of theft and saying that the more she upset him “the more she [was] putting herself in big trouble”. In a further message at 13.06 R2 said “I have a team of ruthless lawyers that I have used for many many years and if I start engaging them you will not get away until u pay or until we make u bankrupt!”

[84]C subsequently paid back the company money but did not receive payment for her unpaid wages. On 27 May R2 sent C a letter saying her invoice was disputed because she owed the company more than she was owed. It was claimed C owed R1 a net sum of £1,935.76 in respect of “training costs” and for “negligence and lack of responsibility recovery”. The tone and content of the letter was similar to the tone and content of the emails set out above, as well as being full of personal insults and allegations, many of which were in capital letters. Towards the end the letter stated that if C didn’t pay the sum claimed R1 would also try to claim for “FUTURE LOSSES as a result of your lack of attentions, negligence and all the mistakes…” The letter concluded “All this comes under the umbrella of negligence and you don’t want to know what more my solicitors can claim for as they are ruthless when it comes to litigation cases against breach of contract! Also will sue you for unlimited amount for any defamatory statement that you make officially…To conclude, I have to warn you that if you don’t settle the sum of £1,935.76 by 28.06.21, then we will start the litigation process against you and you will not only be responsible to pay for our current and future losses, but also our solicitors fees which is also £200/h and all the court fees.”

[85]In evidence R2 said he considered the “firm” tone of his messages and letter was justified because C was holding keys to the Respondent’s properties as well as company money. We do not consider “firm” to be an appropriate adjective to describe R2’s communications with C after her dismissal. We consider adjectives such as abusive, threatening, bullying and exhortative are more accurate. Evidence of Ieva Degle

[86]Prior to employing the Claimant, R2’s PA was Ms Ieva Degle who worked for him between March 8 and 30 April 2021, when she emailed her resignation letter to him giving one month’s notice. R2 responded by dismissing Ms Degle with immediate effect in a letter similar in tone and content to that sent to C on 27 May 2021. He also sent Ms Degle messages with a tone and content similar to those he sent C. Similarly, R2 threatened to bring a claim against Ms Degle for training costs and negligence. For the avoidance of doubt we record that we have seen copies of these documents. When Ms Degle brought a claim in the Employment Tribunal for unpaid wages (in respect of her notice pay for one month), R1 brought a claim against her in the county court for £5,205 (although threatening to pursue damages of £25,000). Ms Degle’s claim for unpaid wages was successful while R1’s claim was struck out because R2 failed to pay the court fees. Although Ms Degle did not bring a claim for harassment related to sex or sexual harassment, her claim for unpaid wages states that she stopped working for R2 because she found his style “oppressive”. Ms Degle also provided a witness statement for these proceedings, and we note she describes a working environment – in terms of criticism and control – strikingly similar to that described by the Claimant.

[87]At paragraphs 15 -17 she wrote: “Overall, I felt I was not allowed any personal time, as he frequently called me and berated me at his own free will whether it was in or out of my shift hours and personal free time. By 16 April 2021, I realised Mr Khan was emotionally abusing and oppressing me, and being derogatory and intimidating. I was very scared of him, to the point I would panic at merely the sight of a message arriving on my phone from him…With my mother’s advice I decided I needed to resign as soon as possible… However, when I mentioned this to Mr Khan he threatened me by saying that if I tried to resign before Anita (his other PA) had returned from maternity leave, he would pursue me in court. This tipped me over the edge and I was in floods of tears again, feeling so trapped in this unbearable situation. I considered committing suicide, as it seemed my only way out…”

[88]We are very aware that Ms Degle did not attend the proceedings and was therefore unable to be cross-examined on her evidence. However the Tribunal proceedings are a matter of record, we have seen the correspondence R2 wrote to Ms Degle when she did in fact resign and we note the Claimant’s evidence (not disputed by R2) that R2 had in fact told her that his previous PA (namely Ms Degle) had become suicidal. Findings Harassment

Findings

[89]Section 26 EqA provides: “(1) A person(a) (A) harasses another

(b) (B) if- (a) A engages in unwanted conduct related to a protected characteristic, and (b) The conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading humiliating or offensive environment for B. (2) A also harasses B if- (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). …… (4) In deciding whether conduct has the purpose or effect referred to in subsection (1)(b), each of the following must be taken into account: (a) the perception of B; (b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are… sex…” Issues 1.1.1-1.1.4

[90]It is not disputed that R2 sent C the messages in the list of issues 1.1.1- 1.1.4.

[91]The case for the Respondents is that those messages did not amount to unwanted conduct within the meaning of s.26(1)(a) EqA. Further, that whether taken together or individually they did not amount to conduct the purpose or effect of which was to violate C’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for C within the meaning of s.26(1)(b) EqA, having regard to s.26(4) thereof. Ms Millin submitted that C’s responses were inappropriate and equally sexual. She relied in particular on the messages where C had written “FFS” and had referred to knowing people who went to orgies. C had also used the tongue hanging out emoji. Further C had had the option of ignoring R2’s messages or asking him not to send them or blocking him and she did not have to take the job.

[92]We reject those submissions.

[93]The relevant circumstances of the case are that C had applied for and very much wanted to work for R1/R2. She had been told that R2 had had 700 applicants, that she had to convince R2 why he should hire her and that he would need to see “passion and commitment”. R2 plainly had the power to set the tone and nature of communication between himself and C and did so, messaging C late into the evening and peppering his messages with all manner of emojis.

[94]C said in her witness statement, and we accept: “The majority of the conversations on WhatsApp that Mr Khan started, began in the evening and continued until 10pm and even well after 11pm. He often WhatsApped me between 6pm and midnight, and I felt compelled to reply quickly despite it being my personal time, due to the platform being WhatsApp (it’s designed for instant communication, unlike emails). I also felt I had to reply quickly due to him questioning me when I didn’t respond right away…I felt I had to prove myself due to Mr Khan having expressed how his previous PAs struggled to keep up with him. I still had not received the job contract.”

[95]In this context we accept C’s evidence that many of R2’s messages were unwanted, in particular the ones set out in the list of issues, which she considered humiliating and degrading but to which she felt she had to respond quickly and in a light-hearted manner in order to convince R2 to give her the job. We consider that in effect she was walking a tightrope, wanting to demonstrate her energy and enthusiasm for the job, while at the same time trying to deflect what appeared to be, amongst other things, invitations from R2 to have dinner with him and stay with him in his apartment in Turkey and “do all the fun stuff”, as well as direct references to his sexual needs.

[96]C said in her witness statement, and again we accept, that “it felt like a constant power play: me trying to prove myself as an equal to Mr Khan, and hence worthy of the job and Mr Khan’s respect, and him constantly displaying his inflated ego, disrespect for women and sexual urges.”

[97]In the light of the above we find that the messages set out in the list of issues 1.1.1-1.1.4. amounted to unwanted conduct.

[98]We further find that that conduct both related to C’s sex for the purposes of s.26(1)(a) EqA and was conduct of a sexual nature for the purposes of s.26(2)(a) EqA.

[99]Having regard to s.26(4) EqA. we further find that those messages had the effect of violating C’s dignity and creating an intimidating, degrading, humiliating and offensive environment for her within the meaning of ss.26(1)(b) and 26(2)(b) EqA. Issues 1.1.5-1.1.7

[100]As regards issues 1.1.5-1.1.7 we accept C’s evidence that R2 asked her before and after starting her job if she had children, and indeed R2 appeared to accept as much albeit he disputed this would have made any difference as to whether he offered her the job. We further accept C’s evidence in relation to issues 1.1.6 and 1.1.7 and indeed the chronology that we have set out in some detail above plainly establishes the allegation set out in issue 1.1.7.

[101]As regards issue 1.1.5 we find the question about children plainly related to C’s sex as we do not believe R2 would have asked the same question of a male applicant or employee.

[102]As regards issues 1.1.6 to 1.1.7 the question of whether that conduct related to C’s sex is more difficult. On these issues R2’s case is that his treatment of C had nothing to do with her sex and he would have treated any employee – male or female – in the same way.

[103]Section 136 EqA provides that if there are facts from which the tribunal could decide, in the absence of any other explanation, that a person has contravened a provision of the EqA, the court must hold the contravention occurred unless the contrary is proved by the person alleged to have contravened the provision in question.

[104]We approach issues 1.1.6 and 1.1.7 in the context of the following facts: - R2 had apparently received over 700 applications for the job advertised yet had chosen to interview only women. - We have found that R2’s conduct prior to employing C amounted to harassment related to sex and sexual harassment. - Previous to employing C, R2 had employed another woman (Ms Degle) whom he treated in a similar oppressive way to the way he treated C. - R2’s messages to C include (in addition to the messages relied on as amounting to harassment related to sex and sexual harassment) the comments “I love beautiful women”, “I hate wing[e]ing women” and “women are so good at excuses”, which indicate a lack of respect towards and objectification of women.

[105]In these circumstances we consider that pursuant to s.136 EqA the burden of proof switches to R1 and R2 to show that R2’s conduct was not related to sex and did not contravene s.26(1)(a) EqA and we find that this burden has not been discharged. While reference was made to R2 having employed male PAs in the past, his written and oral evidence on the matter was very vague and unsupported by any documentary evidence. Further there is no evidence that even if male PAs had been employed in the past that they were treated in the same or a similar way to C.

[106]We therefore find that the conduct set out in issues 1.1.6 and 1.1.7 also related to C’s sex.

[107]We further find that the conduct set out in issues 1.1.5-1.1.7 was unwanted and that it satisfied the statutory test set out in s.26(1)(b) EqA. Issue 1.7

[108]As regards issue 1.7, R1 is liable for the acts of harassment committed by R2 pursuant to s.109 EqA (and indeed no argument was made to the contrary). Issue 1.8

[109]As regards issue 1.8.1, s.40(1)(b) EqA provides that an employer must not, in relation to employment by A, harass a person who has applied to A for employment. Since C plainly applied to R1 for employment (and her application pre-dated the conduct complained of) it follows that the Tribunal does have jurisdiction to consider the claim of harassment against R1 to the extent the unwanted conduct occurred before C’s employment began (as well as to the extent the unwanted conduct occurred after it began).

[110]For the sake of completeness, we record that Miss Millin argued that the conduct was not covered by s.40 because there was too big a gap between C’s application on 15 February 2021 and the harassment which began in April 2021. We reject that submission. Section 40(1)(b) EqA simply requires that the person in question must have applied to the employer in question for employment and does not require the harassment to have occurred within any particular timeframe after that application. In any event the harassment suffered by C plainly arose after and in consequence of her application in February 2021.

[111]As regards issue 1.8.2, the claim against R2 was only brought on 11 August 2023 and has therefore been brought approximately two years out of time.

[112]Ms Millin submitted it would not be just and equitable to extend time pursuant to s.123 EqA, particularly since R2 apparently lost his mobile phone on 10 August 2022 and had not backed up his messages because he did not and could not know a claim would be made against him. As a result, there may have been relevant messages on his phone which have not been before the Tribunal.

[113]We reject these submissions and consider it is just and equitable to extend time pursuant to s.123 EqA.

[114]First, it is apparent from the chronology that the fact that R2 was joined to the claim is the only reason that R1 was allowed to defend the claim. If the claim against R2 was found to be out of time this would have the effect that C would be worse off from having succeeded in her application to join R2 to the claim than if that application had been dismissed.

[115]Secondly, R2 had been on notice since 25 May 2021 that C considered he had bullied, harassed and sexually harassed her, that she was speaking to ACAS and taking legal advice. He therefore had ample opportunity between being put on notice that C might make a claim against him to back up any relevant messages prior to losing his phone in August 2022. He particularly might have considered it prudent to do so after Ms Degle brought an employment tribunal claim against him in 2021.

[116]Thirdly, we have seen copious copies of messages in the bundle which follow each other in a narrative form and there are no obvious gaps in them. Further, save in relation to the disputed message referred to above at paragraph 75, R2 did not point to any particular missing link or suggest there was a missing message which would have been helpful to his case. We are therefore not satisfied that R2’s defence of the claim has been materially prejudiced by reason of not having backed up his phone messages.

[117]Fourthly, C initially named R2 on the Claim Form and did not seek to specifically seek differentiate him from R1 only because she did not realise there was any need to do so.

[118]Fifthly, the conduct complained of relates entirely to R2, who is the sole director of R1.

[119]Sixthly, the character of R2 as suggested by the evidence in this case is such that the Tribunal considers there is a real risk that if the judgment were only to be against R1, R2 might take steps to avoid R1 having to pay whatever amount C is awarded by way of compensation.

[120]It follows that the complaint of harassment related to sex and sexual harassment succeeds against both R1 and R2. Holiday Pay

[121]It is accepted by both parties that R1 owes C holiday pay in the sum of £64.60. The claim for holiday pay therefore succeeds in this sum. Unauthorised Deductions

[122]It is accepted that R1 did not pay C’s wages for the period 4-24 May 2021 in the sum of £814.23.

[123]For the sake of completeness, we record that Ms Millin did not seek to argue that R1 was entitled to deduct any sums purportedly in respect of training costs.

[124]Further while Mr Taylor-Whitfield submitted C should be paid interest on the unpaid wages, the tribunal does not have jurisdiction to make such an award.

[125]The claim for unauthorised deduction of wages therefore succeeds in the sum of £814.23. Wrongful Dismissal

[126]Ms Millin submitted that R2 was entitled to dismiss C without notice because she had committed a repudiatory breach of contract of being absent without leave on 24 May 2021. This submission is plainly a hopeless one given that C had informed R2 that she might not be well enough to come into work on 24 May 2021 and R2 had then told her not to come into work. Further, the fact of C not immediately responding to R2’s messages when she was ill plainly did not amount to a repudiatory breach of contract.

[127]The claim for wrongful dismissal therefore succeeds. Breach of contract counterclaim

[128]Paragraph 5.1 of the List of Issues records that R1 is seeking to counterclaim for £2,750 in respect of training costs.

[129]Ms Millin did not make any submissions (written or oral) in support of this contention however we assume it’s based on paragraph 6.2.8 of the employment contract. This provision states “The Company shall be entitled at any time during your employment, or in any event on termination to deduct from your remuneration…Training costs if you leave within 6 months.”

[130]We find that provision is unenforceable on the grounds it is too vague as it does not set out what the costs of the training are or even how they are calculated.

[131]In any event, there has been no submission to explain precisely what training it is said C received and when and/or how that training cost R1 the sum claimed.

[132]The counterclaim is therefore dismissed. Remedy The case must now be listed for a one-day hearing to consider the matter of remedy. REMEDY JUDGMENT(1) The Claimant is awarded compensation for harassment related to sex and sexual harassment in the total sum of £23,152.44 comprising: (i) injury to feelings in the sum of £12,000 (ii) aggravated damages in the sum of £6,000; and (iii) interest in the sum of £5,152.44.

(2) The First and Second Respondents are liable to pay the compensation set out in paragraph (1) above on a joint and several basis.

(3) The Claimant is entitled to an award of damages of £1,053.30 from the First Respondent for wrongful dismissal/breach of contract. She is responsible for paying any tax and National Insurance due on that sum.

(4) The Respondents’ application that the sums awarded to the Claimant set out in paragraphs (1) and (3) above be paid into a bank account belonging to the Respondents’ instructing solicitors, is rejected.

(5) The Claimant’s application for costs is rejected.

Introduction

[1]Following the liability judgment in this matter, a Remedy Hearing took place to assess the appropriate remedy to award the Claimant in respect of the success of her complaints of harassment related to sex, sexual harassment and wrongful dismissal.

[2]At the outset of the hearing Ms Millin again raised an issue as regards the capacity in which Mr Taylor-Whitfield was attending the hearing. Apparently in his email communications with Ms Millin’s instructing solicitor his signature had indicated that he was acting in the capacity of a McKenzie Friend. Mr Taylor-Whitfield said that he had already explained to Ms Millin’s instructing solicitor that his email signature was automatically generated and that for the purposes of this case he was still acting as the Claimant’s representative and not as a McKenzie Friend. Mr TaylorWhitfield further confirmed directly to the Tribunal and to Ms Millin that for the purposes of the Remedy Hearing he was appearing in the capacity of the Claimant’s representative.

[3]A bundle of documents had been prepared for the hearing and we heard further evidence from the Claimant, who was cross-examined. We then heard submissions from both parties. Neither party sought to make any distinction between the complaints of sexual harassment and harassment related to sex for the purpose of assessing compensation and instead addressed the matter in a holistic manner. Evidence

[4]The Claimant’s evidence was that from Monday 17 May 2021 the Respondents’ behaviour caused her mental health to decline sharply and that she was not sleeping, crying, experiencing migraines and suicidal thoughts. On 22 May 2021 she broke down in tears and then became too ill to go into work. We accept that evidence which is borne out by an email she sent to her GP on 25 May 2021 stating “I’ve broken down in tears so many times…had lots of migraines…been having trouble sleeping …I cannot work through these migraines, stress and tears any more. I can’t sleep anymore at night and constantly feel nauseous in my stomach and aches in my chest and sore shoulder muscles…..I’ve been having thoughts at night of fleeing the country…or even briefly of suicide…I am normally an extremely confident person, very happy and mentally stable, this is NOT like me at all. I’m not a cryer yet I’m crying every 2-3 hours at the moment. I don’t feel like myself…”.

[5]Following that email the Claimant was signed off work for 2 weeks, which coincided with her employment terminating in the circumstances set out in the liability judgment.

[6]Following her dismissal the Claimant continued her other part-time job as a private singing teacher. She then temporarily took up a part-time warehouse job between 5 July 2021 and 5 October 2021. She then continued with her part-time singing teacher job until March 2023 and since April 2023 has been in full-time employment.

[7]Although the Claimant said she continued to have trouble with anxiety and sleeping until she received the Tribunal’s judgment, she didn’t return to the GP to seek help for her mental health until 14 June 2024 (the day after the Tribunal hearing finished) when she attended to get sleeping tablets. She also sought and received counselling between 20 June 2024 and 6 September 2024. The Claimant said it was not until she received the validation of the Tribunal’s judgment that she felt confident enough to seek counselling and that she wouldn’t be blamed for what had happened. Findings Compensation for sexual harassment/harassment related to sex Injury to Feelings

Findings

[8]In Vento v Chief Constable of West Yorkshire Police (No.2)

[2003] ICR 318

, CA it was stated that injury to feelings is not a medical term and that a Claimant does not have to produce medical evidence of injury to feelings. The award is intended to cover feelings of upset, frustration, worry, anxiety, humiliation, unhappiness, stress and depression, even though the intensity of those feelings are incapable of objective proof or measurement in monetary terms.

[9]Three broad bands of compensation for injury to feelings were identified with corresponding guidelines as regards the appropriate amount of compensation for each band. For claims brought on or after 6 April 2021, these are as follows: - a top band of £27,400 - £45,600, to be applied only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment; - a middle band of £9,100 - £27,400 for serious cases that do not merit an award in the highest band; and - a lower band of £900 - £9,100 for less serious cases such as where the act of discrimination is an isolated or one-off occurrence.

[10]Further we must bear in mind that our focus must be on the effect of the unlawful discriminatory treatment on the Claimant and not on the gravity of the discriminatory acts of the Respondents.

[11]In this case we consider it appropriate to make an award of injury to feelings at the lower end of the middle band, namely an award of £12,000.

[12]This reflects our view that while there was not a single act of harassment - instead a pattern of repeated harassment - nevertheless the entire period over which the harassment took place was relatively short (namely from February to May 2021). Further, that while on the one hand the effect of the harassment on the Claimant was unquestionably serious, on the other hand she was nevertheless able to pick up and resume her normal life again relatively swiftly afterwards even if the effects of the Respondents’ conduct continued to have an impact on her well-being. - Aggravated Damages

[13]One of the circumstances in which aggravated damages may be awarded (as part of an award for injury to feelings) is where a respondent’s subsequent conduct added to the injury suffered, this includes where an employer’s conduct is unnecessarily aggressive or retaliatory.

[14]We consider the correspondence sent to the Claimant by the Second Respondent after her employment had been terminated, as referred to in paragraphs 80-85 of the liability judgment, falls plainly into that category. The Claimant said she felt “very very intimidated” by those letters and communications, that they caused her immense stress and to continue to have trouble sleeping. We have no doubt that was the case. In the Claimant’s email to the GP on 25 May 2021 she had stated “I want to resign as soon as possible, but the contract is exploitative…so I have to give one months’ notice even though I’ve only been there 3 weeks. It also states he can charge me training fees… and knowing him, I am scared he will charge me far more than what I earned in my 3 weeks there (he has boasted to me before about taking previous employees to court).” The letters and communications sent by the Second Respondent show that her fears were justified. Indeed he behaved even more appallingly than she feared and we are quite certain that that behaviour added very significantly to the injury she suffered. We therefore make an award of aggravated damages in the sum of £6,000. Loss of Earnings

[15]The Claimant did not pursue a claim for loss of earnings as a separate head of claim. Interest

[16]Under regulation 2(1)(b) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 we are under a duty to consider whether to include interest on the sums we have awarded by way of compensation for the harassment suffered by the Claimant.

[17]We have decided that interest should be awarded. This case was brought nearly 3 & ½ years ago in June 2021 and the delay in its resolution has to a significant extent been caused by the Respondents. As set out in the liability judgment at paragraphs 4-11, neither a response nor an application for an extension of time was lodged until December 2022 and this was followed by a failure to attend a Preliminary Hearing in June 2023 and two subsequent reconsideration applications.

[18]In respect of an award for injury to feelings, interest must be calculated for the period beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation (reg 6(1)(a)). (Unless the Tribunal considers that in the circumstances serious injustice would be caused and interest should be calculated on the basis of a different period (reg 6(3).)

[19]In this case the harassment began on 18 April 2021 and accordingly the period over which interest must be calculated is from that date to today’s date of 14 November 2024, which is a period of 1,306 days. (We note it was not suggested to us that in the circumstances serious injustice would be caused if interest were to be awarded in respect of that period and we do not consider that serious injustice is caused by such an approach.) The relevant rate of interest is 8%.

[21]Applying an interest rate of 8% to the total award for injury to feelings of £18,000 over a period of 1,306 days results in an award of interest of £5,152.44.

[22]Accordingly, the total award of compensation for injury to feelings (including interest) is £23,152.44. Breach of contract/ wrongful dismissal

[23]We have found the Claimant was wrongfully dismissed in that she was summarily dismissed in breach of her employment contract.

[24]Pursuant to clause 14 of that employment contract she was entitled to one month’s notice pay.

[25]Ms Millin argued the Claimant would have resigned anyway because she had drafted a resignation letter. We are not satisfied this is the case because, as the Claimant’s email to her GP made clear, (written after she had drafted her resignation letter), she was scared of resigning because of clause 6.2.8 of her employment contract which purported to hold her liable for “training costs” if she resigned within the first six months. In any event, if the Claimant had in fact resigned without notice this would have been because of the harassment she had suffered and any loss of earnings from a non-worked notice period would have been attributable to that harassment.

[26]Accordingly the Claimant is entitled to one month’s notice pay, which is the gross sum of £1,053.30. The Claimant will be responsible for paying any tax and National Insurance due on that figure. Costs

[27]Mr Taylor-Whitfield made an application for costs, which we reject. Given that Mr Taylor-Whitfied stated he was representing the Claimant in the capacity of being a friend it was unclear what costs were said to have been incurred by the Claimant and no particular sum was identified. In any case the basis for the application was unclear, save that Mr Taylor Whitfield stated that it was apparent from the liability judgment that the Respondent’s defence of the claim for wrongful dismissal was unreasonable. However, even assuming this to be true, the claim of wrongful dismissal in fact added little to the length or complexity of the hearing and accordingly had little bearing on costs. Application for compensation to be paid into Respondents’ solicitors’ account

[28]Ms Millin made an application that the amounts awarded to the Claimant should be paid into the bank account of her firm of instructing solicitors on the basis that the Respondent intended to appeal/was in the process of appealing the liability judgment.

[29]She cited no authority or statutory basis to support this application and did not suggest how such an order would be compatible with section 124(2)(b) Equality Act 2010.

[30]We reject the application. Joint and Several Liability

[31]We find it appropriate to make the award of compensation for injury to feelings for harassment related to sex and sexual harassment on a joint and several basis. This is because the Second Respondent is the sole Director of the First Respondent and was the sole perpetrator of the harassment in question.