Miss S A Rees v Hine Meats Ltd T/a Greens of Pangbourne: 3314182/2021

EMPLOYMENT TRIBUNALS

Case No 3314182/2021

Between

Miss S A ReesClaimant

Hine Meats Ltd T/a Greens of PangbourneRespondent

Before

Employment Judge George

In person for claimant

Date 7 May 2024

JUDGMENT

[1]The claimant was unfairly dismissed contrary to s.103A of the Employment Rights Act 1996.

[2]The claims of unlawful detriment contrary to s.47B of the Employment Rights Act 1996 are not well founded and are dismissed.

[3]The claims of unlawful detriment and automatic unfair dismissal on health & safety grounds contrary to s.44 and s.100 of the Employment Rights Act 1996 are not well founded and are dismissed.

[4]The respondent shall pay to the claimant 14 days’ holiday pay accrued and not taken on termination of employment.

[5]Otherwise the claim of unauthorised deductions from wages is not well founded and is dismissed.

[6]For the avoidance of doubt this disposes of all claims before the employment tribunal.

[7]The remaining issues about the compensation to be awarded will be considered at the remedy hearing on 9 February 2024.

REASONS

[1]Following a period of consolidation which lasted between 27 May 2021 and 8 July 2021 the claimant presented a claim form on 8 August 2021. By it she brought claims of automatic unfair dismissal under sections 100 and 103A of the Employment Rights Act 1996 (hereafter referred to as the ERA) and of detriments on grounds of health and safety concerns and/or making protected disclosures under sections 44 and 47B ERA. She also complained of unauthorised deduction from wages including in respect of unpaid holiday pay on termination of employment. The claims arose out of a relatively short period of employment which started on 12 October 2020 and ended on 31 March 2021. The claimant was employed as a general assistant at the respondent which runs a butchers shop.

[2]The claim form included two individuals as second respondents but the claim was not accepted as against them because there were no early conciliation certificates. The respondent company entered a response on 17 December 2021 by which they defended the claim. The claim was case managed at a preliminary hearing on 21 October 2022 conducted by Employment Judge S Moore when the claimant was ordered to provide further particulars of her health and safety concerns and protected disclosures. She did so on 4 November 2022. Judge Moore listed the case for final hearing with a time estimate of four days to take place between 6 and 9 November 2023.

[3]Lack of judicial resource meant that the case was allocated to a panel which was unavailable to sit on 9 November 2023 and the case was timetabled at the outset to be concluded within three days. In part this was done by agreeing that, if necessary, calculation of any compensation to be paid to the claimant would take place at a separate remedy hearing. A provisional listing for 9 February 2024 before the same panel was made. The parties concluded their submissions at about 11.30 am on day 3 but it did not prove possible for the tribunal to reach a conclusion on all of the issues in time to deliver judgment before the end of the working day and judgment was reserved. In the light of our judgment that the claimant succeeds in part, the hearing on 9 February 2024 will be confirmed and any necessary case management orders will be sent separately.

[4]At the final hearing we had the benefit of a joint file of documents relevant to the issues which was comprised of 174 pages. Page numbers in these reasons refer to the pages in that joint file. Following the hearing, on 10 November 2023, the claimant contact the tribunal by email (copied to the respondent) to point out an error in a page number reference in her witness statement. She stated that she had not previously noticed that a particular document had been relocated in the file because the hard copy final version had only been delivered to her 1 full working day before the hearing. She corrected her para.14.11 reference to WhatsApp messages at page 139 to page 143 where they are, in fact, to be found. This email reached Judge George after the panel had finished their deliberations but before the reserved judgment was completed. The panel had found the messages in any event and this error did not affect our findings or conclusions.

[5]The claimant gave evidence and was cross examined on a witness statement the truth of which she had confirmed in evidence. She also wished to rely upon the statement of Christopher Manning dated 8 August 2023 and had written to the tribunal in advance of the hearing to ask whether it was possible for him to give evidence from Kenya. The government of Kenya has not given permission for witnesses located in that country to give evidence by video in tribunals in England and Wales and therefore it was not possible for this to happen. We admitted the written statement of Mr Manning into evidence and give it such weight as we think appropriate given that he has not been cross examined upon it.

[6]The respondent called four witnesses: Royston Hine - Director and Master Butcher; Philip Cripps – Director and Head Chef; Christopher Cripps – Director and Barry Frost – Driver. The claimant did not have any questions for Mr Frost whose evidence was accepted and full weight was given to his written statement. The other witness all adopted in evidence written statements which had been sent to the claimant in advance on which she cross examined them.

[7]There had been some correspondence between the parties in the run up to the final hearing because of alleged delays on the part of the respondent in complying with case management orders. An email had been sent by the tribunal to the parties warning that consideration was being given to striking out the response on grounds of non-compliance by the respondent. By the time of the start of the hearing the orders had been complied with, albeit late, and the claimant expressed herself prepared and ready to proceed. She stated that her preparation had been unnecessarily stressful and drawn out because of what she described as the last minute nature of the respondent’s actions. She is working and fitting in preparation around her job. She asked that her position that be recorded but did not argue that a fair trial was not possible. In those circumstances we made no order on the strike out proposal and record - but do not make any determination about - the claimant’s allegations of unreasonable conduct on the part of the respondent. The issues to be decided

[8]It was apparent from Judge Moore’s order that a draft list of issues had been before her at that hearing. This list was described as being agreed between the parties but needing to be updated to reflect the anticipated further particulars to be provided by the claimant. No updated list of issues had been provided or agreed between the parties. The further information provided by the claimant (page 56 and follows) was organised with reference to paragraph 5 of her original particulars of claim which set out a number of alleged breaches of health and safety and other regulations in the working practices of the respondent which the claimant stated she had witnessed.

[9]We explained to the claimant that the essence of a complaint of protected disclosure detriment or automatic unfair dismissal was based not on whether breaches had been observed by her but on whether she had first communicated information to her employer that tended to show that those breaches had occurred and then was subjected to a detriment on those grounds. Her original particulars of claim at paragraph 8 state that she had made several disclosures in December 2020 and January and February 2021 as well as on 23 February 2021 at a meeting with Mr Hine and Mr Cripps junior. However, the summary of her claim in her statement at para.2.1 to 2.5 focused larguely but not exclusively on the 23 February 2021 while referring to “disclosures and issues I raised both before and during 23rd February meeting.”

[10]It was apparent that further clarification of the issues was needed prior to hearing evidence because the further particulars at page 55 and following did not pinpoint the specific communications relied on by the claimant. While the tribunal was doing its preliminary reading, the claimant drew up a list of protected communications. When she was asked the question when she had regarded herself as a whistleblower or to have raised health and safety concerns in a manner which gave her protection under s.44 or 100 ERA, she stated that it was as from the meeting of 23 February 2021. Before she committed herself to narrowing the issues to focus solely on communications made at that meeting, it was explained to her that incidents that she complained about which predated that meeting, could not have been done by the respondent because of a communication made at that meeting. The claimant confirmed that she understood that. A manuscript note clarifying how the communications she stated she had made on 23 February 2021 caused her to be protected under Part V ERA or amounted to communication of concerns on health and safety grounds (under s.44(1)(c) or s.100(1)(c) ERA) was provided to the tribunal and to Mr Munro.

[11]Mr Munro provided to the claimant and the tribunal a copy of the original list of issues which had been drawn up by the respondent’s representative and agreed prior to the preliminary hearing before Judge Moore. Amendments to those issues were agreed orally in the hearing and that agreement is reflected in the issues set out in the body of this reserved judgment.

[12]The claimant also clarified her unauthorised deduction from wages claim. In part, this was a complaint of failure to pay holiday pay accrued but not taken on termination of employment. In part, it was a complaint that she had been underpaid in respect of overtime worked over the Christmas period in December 2020 and in part, was a complaint that she had been underpaid in relation to a bonus at about Christmas 2020. Her claim for underpayment of overtime had been argued on the basis that she should have been paid time and a half for the hours worked. However, she now accepts that the respondent does not have a policy of paying overtime at time and a half but only pays standard time for the hours worked. She therefore applied to amend her claim to argue that there had been an underpayment of overtime because the wrong hours had been used as the basis for the calculation.

[13]We rejected that application to amend her claim for reasons which were given at the time and are not now repeated. If the parties wish to have written reasons for that decision they may request them within 14 days of the date on which this reserved judgment is sent to them.

[14]Following that decision the claimant withdrew that part of her unauthorised deduction from wages claim which was based on an allegation of underpayment of overtime but continued to pursue the claim that she had not been paid holiday pay and was due sums in respect of a bonus. The issues to be determined by the tribunal were therefore as follows:14.1 Did the claimant make several disclosures concerning breaches of health & safety regulations and coronavirus regulations as well as other legislative breaches to the respondent on 23 February 2021, namely:14.1.1 That she had been asked medical questions in interview in breach of s.60 Equality Act 2010 (hereafter the EQA);

14.1.2 That excessive hours were worked by employees including by child employees and outside permitted hours contrary to the Working Time Regulations 1998 (hereafter the WTR) including reg.5A limits on hours to be worked by young workers.

14.1.3 That employees had vomited and not been sent home immediately in breach of health & safety regulations and had not been excluded for 48 hours thereafter.

14.1.4 That a child employee had not been allowed to leave when coughing, visibly ill and had fainted.

14.1.5 That Mr Chris Cripps had been retching into an open hallway sink during food preparation and bagging.

14.1.6 That there had been a failure to provide employees with adequate rest facilities.

14.1.7 That the respondent had penalised employees for genuine illness or symptoms.

14.2 If so, by her actions, did the claimant amount to an employee at a place where there was no representative on matters of health and safety or, there was such a representative, but it was not reasonably practicable for her to raise the matter to them and did she bring to her employer’s attention by reasonable means, circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health or safety.

14.3 Alternatively, were the matters set out in paragraph 14.1XX above disclosures of information which qualified for protection under s.43B (1)(b) and/or (d) ERA? This will require the tribunal to consider:14.3.1 Did the claimant disclose information?

14.3.2 Did she believe the disclosure of information was made in the public interest?

14.3.3 Was that belief reasonable?

14.3.4 Did she believe it tended to show that either a person had failed, was failing or was likely to fail to comply with any legal obligation or, that the health or safety of any individual had been, was being or was likely to be endangered?

14.3.5 Was that belief reasonable?

14.3.6 If the claimant made a qualifying disclosure it was protected because it was made to her employer?

14.4 Did the respondent subject the claimant to a detriment because she had raised such concerns or made such disclosures of information? In particular:14.4.1 Did the respondent extend the claimant’s probationary period to 31 March 2021 with a consequential lower hourly rate?

14.4.2 Did the respondent reduce the claimant’s bonus?

14.5 Did the respondent dismiss the claimant?

14.6 If so, was the reason or principal reason for dismissal that the claimant had raised health and safety concerns as set out in s.100(1)(c) ERA.

14.7 Alternatively, was the reason or principal reason for dismissal that the claimant had made a protected disclosure?

14.8 Did the respondent made deductions from the claimant’s wages by:14.8.1 Reducing the claimant’s bonus;

14.8.2 Failing to pay the claimant holiday pay which was accrued but not taken upon termination of employment.

Findings of fact

[15]The claimant was interviewed for the role on 29 September 2020 by Mr Hine and Philip Cripps. She states that in interview she was asked a question about her health which surprised her. She has lived in the United States for a number of years and explained that at the time she was not completely familiar with interview processes in the United Kingdom, but her experience in the United States caused her to be surprised that such a question should be asked. In fact, s.60 EQA states that a person to whom an application for work is made must not ask about the health of the applicant before offering work to an individual. A contravention of s.60(1) is enforceable only by the Equality and Human Rights Commission. There is a proviso that permits questions that are necessary for establishing whether the applicant will be able to undergo an assessment or whether reasonable adjustments for the interview process are necessary or to discover whether the applicant will be able to carry out a function that is intrinsic to the work concerned among other limited exemptions. On the claimant’s account she was asked questions which were general in nature and led to her disclosing that she has endometriosis. See paragraph 3.3 of the claimant’s statement.

[16]Mr Hine denies that this question was asked but Phillip Cripps accepts that there was a conversation of that kind.

[17]In order to resolve this clear conflict of evidence on what was discussed on 29 September 2020 we need to consider the credibility and reliability of Mr Hine as a witness of fact. Our view is that he was mistaken in his recollection of this interview. We consider that he avoided answering questions about what he had asked in interview. Rather he deflected the questions and sought to explain himself with reference to a form (page 88) completed by the claimant. However, both she and Phillip Cripps stated that that form had not been filled in as at 29 September. Mr Hine seemed to us to be so adamant that his recollection was correct that he sought alternative, improbable explanations for what was otherwise logical and clear.

[18]Had the section on page 87, the template initial interview form, which is headed “Medical: General Health” been a prompt to complete the form at page 88 that would have been inappropriate at the interview stage because there is no suggestion from the respondent that all of the matters set out in the medical questionnaire were things that would make it impossible for an applicant to carry out an essential function of the role.

[19]One question apparently asked on the onboarding is whether the claimant had any skin trouble, or boils, styes or septic fingers. Mr Hine had asked to inspect the claimant’s hands at interview and said that he always did so because “A person who has a bad hand problem – If a customer sees you handling food that’s a no no” although he accepted that they could wear gloves.

[20]Furthermore, Mr Hine, in his own handwriting, appears to have written on the template interview form against the prompt “General Health” the words “GOOD! ENDO? (STOMACH)”. Against “Any regular medication” he has written “MEDS FOR ABOVE”. In red ink on the document is written: “INITIAL ANSWER WAS GOOD BUT DUE TO SLIGHT HESITATION QUESTION REPEATED. SR. THEN SAID SHE HAD ENDOMETRIOSIS BUT CONTROLLED IT WITH MEDICATION AND IT WAS NOT A PROBLEM.”

[21]Mr Hine’s oral evidence was that the questions had been a reminder to check that the form at page 88 was filled in and that, when he had seen there was a crossing out and change of the answer to question 6 on page 88, he had questioned that. We consider this recollection to be mistaken and it does not in any event explain why the questions were asked. The answers recorded in manuscript bear no relation to question 6 on page 88. The explanation is not logical. On the other hand, so far as they go, they are broadly consistent with the claimant’s account of what she was asked.

[22]Our findings on this particular incident cause us to draw the following conclusions about Mr Hine’s reliability as a witness. First, his emphatic certainty when giving evidence should not be taken as a reliable indicator of accuracy of recall. Secondly, he was defensive about the respondent’s practice of asking questions about health in interview which, at the time, they had. Finally, he seemed in this instances to retrofit an explanation to excuse that practice rather than do his best to give accurate evidence.

[23]The claimant’s evidence about what she had been asked broadly correct and was her genuine recollection. Therefore, she had reasonable grounds to think that the respondent had the practice of asking questions about health in interview. At the time she thought that would probably be unlawful based upon her previous experience but did not know about the exact statutory provision.

[24]The medical questionnaire was completed according to both the claimant and Philip Cripps on about 8 October 2020.

[25]The claimant’s offer letter post-dated the start of her employment and is dated 20 October 2020. It includes a trial period until the end of the year (page 89 and 90). The trial could be terminated by either party giving one week’s notice. Page 90 is a statement of the hours to be worked for a general assistant. The claimant was scheduled to work a total of 40 hours and the statement on page 90 also says that the individual will be included in any bonus payments. It provides that “Custom and practice allows for up to 20 minutes unpaid clearing up time if necessary on any day, after that overtime applies.”

[26]The claimant’s evidence is that she initially found that she had a lot to learn and wrote a list of the tasks that she had to do as an aide memoire. She had a six week progress meeting on 21 November 2020. The claimant’s evidence (see her paragraph 6.4) was that there was a face to face meeting and that Mr Hine talked through the points that are in a letter at page 101 which was subsequently given to her. Mr Hine agreed that page 101 sets out the guidance that he had given at that stage about the extent to which the claimant was making the expected progress.

[27]Among other things, under the heading “Displays stocking/clearing” he stated: “Whilst the standard of work is acceptable the productivity needs significant improvement, we hope further practice will help to ensure you can operate within well proven timescales.”

[28]Other matters noted were that, in relation to fridge work, stock rotation was essential and “the fridge area needs to have product stored … as per Chef’s directions”. “Chef” is how Philip Cripps was addressed by the staff. In the workplace Mr Hine was referred to as “Guv”. Mr Hine also noted in the letter of 21 November 2020 that, since drafting the memo, on 20 November Phillip Cripps had been encouraged that the claimant appeared now to have the fridge in reasonable order.

[29]Finally, in terms of criticism, Mr Hine stated that it should not be necessary for the claimant to stay after her finishing time to complete her work and noted that there had been an occasion when she had overslept and been late: there is a reference to “2 plus hours over-sleep”.

[30]In general, the claimant criticises the respondent for a lack of written invitation to meetings such as the six week review, lack of agendas for those meetings, lack of notes or minutes and lack of written policies. She makes a general allegation that there was little by way of paper trail to evidence communications between the individuals who were running the business. Given that this was a relatively small business run by family members, it seems to us to be unrealistic to expect that they would communicate by email rather than verbally and therefore it is less surprising in this organisation than in some others that communications between the directors had not been evidenced by paper trails.

[31]Beyond that set out in page 89 and 90, the claimant had not had a written statement of terms and conditions of employment by the time of this progress meeting. She did not complete her probationary period.

[32]There is a dispute about exactly when the end of employment was but she was in employment for more than one month, so the obligation to provide statutory terms and conditions under s.1 ERA arose. Mr Hine accepted that it was possible that the respondent had failed to provide the claimant with a statement of terms and conditions that complied with s.1 ERA but said that was because of the business of the Christmas period and the impact of the coronavirus pandemic in particular upon the managers of the respondent business. Nevertheless, an employee should be expected to have the minimum level of paperwork required by law and a s.1 ERA statement would signpost employees to the applicable disciplinary or grievance policy even if only by referencing the standard code of conduct published by ACAS.

[33]The respondent is a small employer and, at the relevant time, appears not to have used much in the way of paperwork to record significant exchanges with employees. The absence of paperwork may be explicable by its size but there is a risk to an employer who does not keep paperwork because they do not then have documentary evidence of what they plan to do, what happened at particulars meetings or what the reasons for their decisions were.

[34]We do not think it right to draw a general adverse inference of unreliability against the respondent managers because their explanation that they had managed things relatively informally as a small employer seems to us probably to be the genuine reason why the documents are not available. However, we can only base our decision on the evidence that we have and where there are conflicts of accounts at key meetings and other events, draw inferences from such documentary evidence as is available.

[35]Mr Philip Cripps did not recollect giving the claimant advance notice of the meeting on 21 November 2020 but was clear that it had taken place, contrary to his father-in-law’s evidence. “Advance notice” is probably overstating it but we accept that the claimant went into a face-to-face meeting knowing when she went into it that it was to be her six week progress meeting. So she had been given notice of some kind that it was to be an important meeting concerning her probation.

[36]There are a number of matters that the claimant refers to in her witness statement that she alleges took place in early and mid-December 2020 but about which she did not cross-examine. Since the respondent’s witnesses did not have the opportunity to respond to them, we do not make any finding about them and, in any event, they appear no longer to have the relevance they potentially once had given the narrowing of the issues about relevant disclosures.

[37]The period of time from about 20 or 21 December 2020 to Christmas Eve that year appears to have been busy in the butchers shop even by the standards of the run up to Christmas in general. The context to the incidents the claimant alleges occurred is that December 2020 was in the height of the Covid-19 pandemic. The second national lockdown either had been or was about to be announced in recognition that the spread of a particular variant meant that coronavirus was on the rise in the population as a whole. Butchers shops, as food shops, were among the businesses which were permitted to be open and last minute changes to the regulations meant that Christmas preparations were in a state of flux which must have meant that it was a particularly hectic time of year for the respondent and all their directors and employee.

[38]One allegation is that the respondent had no designated seats on which employees could sit to take their breaks. According to the standard hours employees were allowed a one hour lunch break although there is a dispute about whether employees were able consistently to take those. The claimant’s account is that employees either had to stand to eat, go outside the premises for their break and eat sitting on a wall in the village or sit on stairs which can be seen in page 170 & 171.

[39]The respondent’s account is that seating was available in various different places of the premises. However, this appears to have been upstairs in the office to which, in general, employees did not have access.

[40]The claimant’s specific complaint is that in the days running up to Christmas there were additional staff on duty working long hours up until 9 or 10 o clock at night. By common consent there was at least one occasion on which Chef cooked a meal for those working late and the claimant states that this led to five people sitting on the stairs together while eating a meal. This was at a period of time when restrictions were in place on social distancing.

[41]The claimant states that in the 23 February 2021 meeting (to which we shall come in due course) what she drew to the respondent’s attention was not the absence of chairs as such but the health and safety risk of numbers of people sitting in close proximity to each other during a period where social distancing was required and that this resulted from a lack of chairs or designated seating. She states that this provided information that tended to show that there had been a health and safety risk on these occasions. She further states that, when the shop reopened in January 2021, she had asked to use the upstairs chairs in the office so that she and a colleague could sit separated from each other rather than sit stacked on top of one another, as it were, up the stairs. She states that this request was refused.

[42]It is common ground between the claimant and Mr Philip Cripps that she made this request after Christmas for her and Rona to use the office and that this was denied. Although Mr Philip Cripps said chairs were available the claimant was not asked in cross examination about particular locations where they were available. The claimant’s evidence was that the only chairs were in the office, which was not available for use as a restroom, and that those included fold up chairs that she had not been permitted to use in the office or elsewhere.

[43]Overall it seems to be accepted that staff were sitting on the stairs, the respondent says that the claimant chose this. If we look at pages 170 to 171 it seems to us to be a relatively small space. We accept that the issue before Christmas was that on a limited number of occasions there were many individuals in the shop taking a break at the same time and the claimant was genuinely concerned that this was a health and safety risk given the national circumstances.

[44]This led to her making her request after Christmas because she was among the three employees in the business who had not, by that stage, had coronavirus and she believed that they were at an enhanced risk of contracting it as a result.

[45]It does appear to us that there were no easily accessible chairs or a designated place for the employees to spend their rest breaks. Had this only been about the claimant and Rona, the risk that the two of them would be unable to practice social distancing if taking a break together and sitting on the stairs, does not seem sufficient to us to lead to a reasonable belief that their health and safety was at risk. It would, nevertheless, be unsatisfactory that there should be no provision of a place to take a break. However, the claimant states that she informed the respondent on 23 February that she, Rona and others had eaten in a close, confined area. Had she communicated to the respondent the situation she described in paragraph 8.4 and 8.5 of her statement then we accept that she had reasonable grounds to believe that that situation led to a health and safety risk for employees because of the inability for them to follow social distancing requirements. We accept that they had had to eat with approximately five people huddled on the stairs on that occasion as alleged.

[46]The claimant also argues and we accept, that as a food producer and food purveyor, a health and safety risk to employees could reasonably be regarded as a health and safety risk to customers because of the risk that disease that could be transmitted between employees could also be transmitted within the shop to customers.

[47]We have heard about an apprentice butcher within the business who at the relevant time 16 years old. He therefore counts as a young worker for the purposes of the WTR. He fell ill on evening of 21 to 22 December 2020 when the employees were working late to fulfil Christmas orders.

[48]The claimant alleges that she told Philip Cripps that the apprentice was ill and should go home. Mr Philip Cripps was insistent that he had taken appropriate actions as soon as he was aware that the apprentice was ill to call his father and ensure that he went home without the claimant having to be involved. He denies that this was initially refused.

[49]We reflect that the period around Christmas 2020 were extraordinary times. It was a very stressful period nationally and, in particular, for food shops which were among the few that remained open. Both staff and customers were suffering stress and anxiety in varying levels. Different people reacted differently to the restrictions imposed by the national government and had different views upon them at the time. The respondent business would have been under considerable pressure at this time. They take justifiable pride in their status as an award winning butcher and no doubt wished to maintain their standards and to ensure their customers had the service that they had come to expect. Nevertheless, there was a serious and novel illness in the community at that time in the form of Covid-19. The respondent had a responsibility to act appropriately and to have a conservative approach to risk in line with the guidelines provided on social distancing and the emergency legislation.

[50]When considering which version of events about the apprentice’s illness on 21/22 December 2020 we prefer, we consider it alongside the two other instances when he was unwell that the claimant states she also made the subject of disclosures of information in the meeting on 23 February 2021. The total of three occasions were:50.1 When he fell ill on the night of 21 to 22 December 2020;

50.2 In the week beginning 18 January 2021 when he had what the claimant refers to as a whiteout;

50.3 Approximately two weeks later on about 2 February 2021, as recounted in paragraph 12.8 of the claimant’s statement, when the apprentice vomited at work.

[51]The evidence of the claimant and of the respondent on the other hand about these three incidents all to a greater or lesser extent involve a conflict about whether the respondent took an appropriate stance in relation to risk and in relation to employee welfare. We therefore consider the conflicting evidence about these three incidents together when forming our view about which version of events we prefer.

[52]In relation to the last incident in early February 2021 the claimant’s account is that the apprentice told her that “Chef”, Philip Cripps, had refused him permission to leave work at a time when the apprentice had vomited on two occasions at work. On the claimant’s account this conversation took place when the apprentice was back at his workstation and therefore, selfevidently, if her account is true, he was back at work preparing food despite having vomited. The claimant states that she told the apprentice to go and tell Chef that he had actually vomited.

[53]Mr Cripps’ account is in his paragraph 20 which he expanded in oral evidence. What he said in cross examination was that the apprentice’s first job when arriving was to rinse clothes out that had been soaking in bleach overnight. The apprentice had apparently disappeared and the butchers had come to Mr Philip Cripps and asked if he knew where the apprentice was. Mr Philip Cripps then said the following: “I found him in the toilet and he said he had been sick but felt fine. I said wait there I would talk to them in the prep room and I will then phone your father. He while waiting was sick again and was sent straight home.” And “He was told to wait in the toilet area while I went to deal with the issues for them … I was going to phone his family to see if other family members were ill.”

[54]Mr Philip Cripps was asked for an explanation for the absence of that detail from his witness statement. The structure of the respondent witness statements was that allegations of the claimant were put in bold in the statement and then the paragraph numbers set out the response of the relevant witness to the specific allegation. In this instance, the claimant’s allegation was that Philip Cripps told the apprentice to stay at work after the apprentice had reported to him that he had vomited but, when the apprentice vomited again an hour later, he was then sent home. After denying that employees are refused permission to leave work when ill or pressure to attend work when unwell, Mr Philip Cripps states in paragraph 20: “There was an incident where the apprentice came and told me he’d been sick but felt fine, but shortly after vomited again and was sent straight home.”

[55]An inference one could draw from that wording is that it was only after the apprentice vomited again, for a second time, that he was sent straight home which is broadly similar to the claimant’s version of events. Had Mr Cripps when preparing his witness statement had in mind the account that he gave in oral evidence, then it is hard to understand why he did not proffer it at the outset. The question is whether he is clarifying something that he thinks is unclear or whether he is significantly changing his account. It was explained to all the witnesses that the opportunity to make clarifications or corrections was prior to confirming the truth of the witness statement when giving evidence in chief and this was not done in this instance.

[56]We think that Mr Philip Cripps has changed his account of this incident between written statements and oral evidence. We accept that on this occasion he did not immediately remove from the food preparation area a member of staff who had informed him that he had vomited and did not immediately send that member of staff home. We prefer the claimant’s account in relation to the incident of the apprentice vomiting in February 2021.

[57]Returning then to the first incident which occurred sometime in the evening of 21 December 2023. On the claimant’s account in her paragraph 8.9 this happened very late at night. Mr Philip Cripps’ account is very different and he proffers evidence that the apprentice was collected at 8.45pm by his father. Christopher Cripps had also been present on the occasion of this incident. He was not asked in cross-examination about any of the details in the claimant’s paragraphs 8.10 and 8.11. By that we mean that he was not asked about his own recollection of this incident although it was put to him and he accepted that the incident had been referred to at the meeting of 23 February 2021. The limited extent to which he recollected this was that he said: “It might have been briefly brought up.” And “We said that it had been dealt with and handled it as we should have and he was fine. You try to bring it up and Guv said it’s all done now.”

[58]The essence of the conflict between the claimant’s account and Mr Philip Cripps’ account in relation to this incident is that the claimant says it took place between 11pm and 1am in the morning and that she had to be persistent to get Mr Philip Cripps to send the apprentice home. Mr Philip Cripps states that it happened at about 8.45 pm and that he sent him home immediately (see paragraph 13 PC).

[59]We reflect on the length of hours in relation to the apprentice’s work pattern on this occasion. His standard working day requires him to start at 8am. So on any view, whether the claimant or Mr Philip Cripps are right about when this occurred, he had worked for more than the eight hour maximum working day which is specified by reg.5A WTR. It does not seem to us to be particularly relevant exactly when this happened in those circumstances.

[60]The key difference is whether the claimant reasonably believed that Mr Philip Cripps was initially reluctant to send the apprentice home. She also maintained that the apprentice himself phoned his father. We prefer the claimant’s account on this. Having reflected on the February incident, her version of Mr Philip Cripps conduct in the December incident fits the overall pattern; for reasons we have already explained we found Mr Philip Cripps to be unreliable in relation to the February incident; and the pressures that the business was working under make it plausible in all the circumstances. We therefore prefer the claimant’s account about the important difference between the versions of events, namely whether the claimant had to assert herself to get Chef to permit the apprentice to leave work.

[61]We attach weight to our findings on the February incident (when the apprentice vomited at work) and to Mr Philip Cripps’ inconsistency in oral as opposed to statement evidence in relation to that. We also attach weight to what appears to be a pattern of people pushing themselves to work when they are really not fit to do so and that comes across from the events of Christmas 2020 as a whole. Working when someone is unfit to work is not the same as working excessive hours. It is not the same alleged wrongdoing but the two alleged communications are based on the same incident. A mindset which encourages an individual to think it is acceptable to work more than their regular or designated hours is similar to a mindset that causes that individual to think that they should continue to work when they are unfit to do so. We accept that there was a mindset on the part of the management at this shop that it was acceptable to push oneself to do both these things.

[62]We stress that we do not say that an employer should not be able to expect employees to work hard and productively. Employers have the right to expect hard work for pay but expecting employees to work when unfit is not acceptable. In some business at busy times or year the employers does reasonably require employees to commit to overtime, but requiring workers to work in excess of the hours stipulated by law cannot be a reasonable request in ordinary circumstances.

[63]We consider that Mr Philip Cripps’ comment that the apprentice’s father did not complain about the hours that his son was required to work because his son played on his PlayStation until the early hours of the morning misses the point. In our view, the point is that the respondent, as an employer, has a legal duty to ensure that young workers do not exceed the hours that it is stipulated in the WTR that they should work. They also have a legal duty to be able to demonstrate that young workers have not worked in excess of the hours set out in reg.5A.

[64]We note that the respondent has told us that they have now outsourced HR advice and we hope that they have received appropriate advice on the record keeping which they are obliged to maintain in order to be able to demonstrate that they have complied with those obligations.

[65]The third incident involving the apprentice is the alleged “whiteout” which is said to have occurred in approximately the week beginning 18 January 2021 (the claimant’s witness statement paragraph 10.6). Neither Christopher Cripps nor Mr Hine were at work. Mr Philip Cripps was not asked directly about his recollection about whether the claimant told him about her concern about the apprentice on this occasion. But it is common ground that the apprentice was hospitalised the next day and was unfit to work for two weeks. He, like a number of others, had been ill with coronavirus over the Christmas and New Year period and this appears to have been connected with the earlier illness.

[66]We accept that this is another instance of delayed action on the part of the respondent to remove an unwell employee from the workplace. These were all three instances that the claimant experienced and which led to a genuine and reasonable belief that, occasionally, the respondent required young workers to work more than the hours stipulated by the WTR and that staff were not sent home as soon as it was apparent that they were too unwell to continue.

[67]Turning back in tmie to that Christmas period on 23 December 2020, the claimant alleges that she heard Chris Cripps retching into the hall sink adjacent to a food preparation area. She covers this in para.8.17 of her statement where she says that he was visibly ill, coughing and sweating. Chris Cripps covers it in paragraph 23 of his. His version of events is that he has a well known problem of a strong gagging reflex and, also, as an asthma sufferer, sometimes gets a build-up of phlegm in his throat and lungs which can make him gag and retch causing him to cough and bring things up. He therefore denies that what the claimant heard was him continuing to work when ill but was the result of him clearing his throat.

[68]Whether his actions were because of coronavirus, flu, an asthma related cough or acid reflux, we do not consider that it is good practice to be bringing up the contents of ones lungs or the contents of one’s stomach in a sink in a food preparation environment.

[69]The claimant did refer to this incident in the meeting on 23 February 2021 and it is accepted both by Chris Cripps and by Mr Hine that she did so. She used it as an example of people being at work when they should not have been. As a matter of fact, Chris Cripps was admitted to hospital with coronavirus a few days later. He states in his paragraph 25 that he was hospitalised around 28 December 2021.

[70]In those circumstances, and given that we accept that the claimant was not aware that this was a consequence of the asthma that Christopher Cripps suffers from, we consider that it was reasonable for her to conclude that Christopher Cripps was ill at work and retching into a sink as a consequence. If someone does that it is not unreasonable to think that they are unwell and when that individual is hospitalised four days later it is not unreasonable for the employee to conclude that the two incidents are related. She would need to have a very specific knowledge of Christopher Cripps condition for her to be aware that he was not unwell given the circumstances that she was presented with. Christopher Cripps did not recall telling the claimant that he had a gag reflex. There is no strong evidence to form the basis of a conclusion that the claimant did know and we accept that she did not.

[71]The shop closed at 3 P.M. on Christmas Eve and the staff did not return to work until 12 January 2021. As we have already indicated, all bar three of the shop staff were ill with coronavirus over that period including Mr Hine, Christopher Cripps and also Christopher’s brother. All three of those members of the family were hospitalised and Mr Hine was admitted to the Intensive Care Unit on 27 December 2020. Mr Philip Cripps was fortunately not unwell himself but it must have been an extremely worrying period for him with so many members of his close family so ill. The responsibility of keeping in contact with the staff over that period of uncertainly fell on him, and he arranged for a deep clean to be carried out of the shop.

[72]This is consistent with what the claimant says about his attention to detail and high standards concerning food hygiene. She was at pains to stress how much she respected Mr Philip Cripps’ approach to food standards and food hygiene. Her criticisms of the respondent were in no way related to the standards of the products that they provide or the service they provide to customers but were directed to management of employees and HR practices. It was unchallenged that Philip Cripps also has responsibility for Health & Safety (see para.3 of PC’s statement).

[73]On 12 January 2021 Philip Cripps requested the claimant to start work on 13 January and participate in the deep clean. The following day (see paragraph 9.6) she requested to Mr Cripps Senior that she be permitted not to attend work because she was concerned about coronavirus and asked about precautions. There is a printout of an exchange of messages between the two of them at pages 102 to 107. At the bottom of 102 there is a text sent at 07.20 AM on 13 January saying that she may need to delay her return until the following day or Friday “on my immunologist’s advice yesterday”. Mr Cripps replies to say “No problem”. And it appears that the claimant wished to have a steroid dose to boost her immune system in case of exposure to coronavirus.

[74]She returned to work in the afternoon of 14 January 2021.

[75]The shop reopened on 19 January. According to the claimant (see paragraph 10.2) Mr Hine informed her that he needed to make arrangement for her to join the pension and because her understanding was that this was something that would be confirmed only when her probation was finished, she asked about that. The claimant’s version of events is that she was then told that her probation was over. This is the same day when the claimant told Philip Cripps that she was concerned that the apprentice was unwell.

[76]According to Mr Hine, he had a telephone conversation with her on 20 January 2021 where he mentioned the pension to her and told her that her probation would continue.

[77]On 21 January 2021 (see paragraph 10.8) the claimant vomited at home and contacted Philip Cripps the following day to ask him whether she should come in. As appears from the text at page 103, she explained to him that she had no symptoms but was suddenly nauseous. She said it could be a reaction to a steroid and would check with her doctor. She asked him if she should stay at home. Philip Cripps told her to stay to home.

[78]The following day the claimant was sent a letter by the respondent about an extension of probation (page 114). In it Mr Hine informed the claimant that he had explained to her by telephone on 20 January that she needed to be included in the pension provision. He then stated in paragraph 2 of the letter that a conversation about her probationary period had followed and stated: “I told you that as a number of complex medical issues that have not been made known to us at interview had arisen it would be normal to extend the probationary period to obtain a clearer assessment. I also told you that we were very happy with your work and that you fitted in well and if absent issues were resolved then I would be prepared to confirm your position permanent. Just 48 hours later you advised by text that you had sickness overnight then asked if you should come in! As a food business nobody is allowed on the premises until any form of sickness is resolved. Accordingly I am not going to sign off on the probation period before the end of March and between now and then I expect a consistent work attendance.”

[79]There is therefore a specific reference to the claimant’s absence on 21 January 2021 as a reason for the extension. In the final paragraph Mr Hine also emphasises the importance of reliability of attendance. The only other apparent criticism of the claimant is of asking a question to which there was an obvious answer (i.e. regarding working after sickness).

[80]The relevant dispute between the competing accounts of the probation extension are whether stock control was mentioned in the telephone call on 20 January 2021, whether the probation was extended in that telephone call or confirmed as concluded as on the claimant’s account, and what, if any, concerns did Mr Hine express at this point.

[81]In paragraphs 56 and 57 of his witness statement Mr Hine states that he had noted in writing to the claimant a number of matters which include the need to improve productivity and stock rotation. He also refers to the claimant taking notes as a memory aid and states that he “commented that they had not been made aware of any memory problems”.

[82]These paragraphs in Mr Hine’s witness statement are impossible to square with the wording of page 114 in which he expresses that the respondent is very pleased with the claimant’s performance. He sought to explain that contradiction as “soft pedalling” but it does not make any sense for him to have done so if he expects and wants the claimant’s performance to improve which can be the only sensible purpose of extending a probationary period. The only concerns of substance that are expressed in the letter by which that was communicated at page 114 are about her absences.

[83]As the claimant put to Mr Hine, the matters that are set out in paragraph 57 are strongly reminiscent of the negative matters set out in the six week progress report at page 101.

[84]Mr Hine’s oral explanation of his para.57 list was that he wrote his statement without reference to the documents and put in his recollection. The most favourable thing to say is that he mis-remembered his state of mind as at January 2021 and confused it with his state of mind as at November 2020. However, in oral evidence, Mr Hine positively stated that the matters set out in paragraph 57 had been present in his mind when deciding to extend the probation in January 2021 even when the similarity with the letter at page 101 was drawn to his attention.

[85]We think that the Claimant’s absence on 21 January 2021 hardened Mr Hine’s intention to extend the probation. He expressly stated that he expects a consistent work attendance in the letter the following day.

[86]As a comment, the Claimant does appear to us to think that the Respondent should accept a level of absence if they are given notice of that absence and a plausible or “good” explanation. She states that short absences were compensated for by working through her lunch hour.

[87]Our view is that this business needs people to be in work and working at particular hours to provide cover. The Claimant appears to have had an attitude that an employee was entitled to bear their own responsibility for their working time and that is not commonly acceptable in a junior position such as the one that she occupied. The Respondent is entitled to expect reliable attendance at the start and finish times that are agreed to amount to an employee’s working hours. They are entitled to expect that workers would prioritise getting to work for the hours that they are contracted to do.

[88]Nevertheless, had Mr Hine’s reasons for extending the probationary period included performance, we are quite sure that he would have stated so in the letter and he did not.

[89]In oral evidence Mr Cripps said that after the deep clean he had become aware that the Claimant’s stock check had been inadequately carried out and a large number out of date products had been discovered. He mentioned there being 21 such products. There is also reference in Mr Hine’s statement to concern that the claimant had prepared more of a product than instructed to or needed which lead to waste.

[90]We accept that it is of crucial importance to the Respondent that out of date items should not be offered for sale for all of the reasons that they explained. However, there is no evidence that those 21 items were drawn to the Claimant’s attention during her employment, and they have not been particularised within this litigation despite the many opportunities the Respondent has had to do so. It is hard to understand why they would have failed to set out these details had there in fact been frequent, or repetitive, evidence of the Claimant failing to remove out of date stock or rotate stock subsequent to the six week probation review.

[91]The Claimant accepted the decision to extend her probation, although she was disappointed about it.

[92]The Claimant states in her paragraph 12.4 that on 28 January 2021 she contacted Mr Manning in Kenya and made a statement that is consistent with some of the statements she has made in these proceedings. Given our conclusions and reasons for preferring her evidence, we have not needed to rely upon the statement of Mr Manning. In any event, given that he has not attended to be cross examined upon it, we do not think it is appropriate to give it significant weight. The statement of Mr Frost was admitted without question, but amounts to a character reference for the Respondent’s witnesses as employers in the experience of Mr Frost. It does not assist us in making a decision about the issues we have to decide.

[93]There were two occasions in early February when the Claimant was late for work: 2 February and 10 February 2021. The exact length of time that she was late are disputed. She says that she was merely 15 minutes late on the second occasion and it was a short amount of time late on the first occasion (paragraph 14.2) since it was for a necessary plumbers visit. Regardless of the reason, unreliability is something that an employer could reasonably take into account when deciding whether or not to retain an employee beyond their probationary period.

[94]On 13 February 2021, the Claimant states that she had symptoms of Covid19 and remained at home in order to take a test. She explains in some detail in her paragraphs 14.5 to 14.12 why it took her longer than she originally expected to obtain a test, because she wished to avoid coming into contact with people whilst she did so and had no means of driving to a drive-in test facility and relies on texts to friends to support this (page 143)..

[95]She returned to work following a negative test result. The Claimant accepted that a packet of out of date gravy had been found, although her case is that it was located on the top shelf behind some flour where she would be unable to find it and that, to prevent that occurring again she arranged that a taller member of staff should perform the check on that shelf every couple of days.

[96]This brings us to the meeting of 23 February 2021 between the Claimant, Mr Hine and Christopher Cripps. The Claimant’s evidence, which we accept, is that very shortly after the meeting she went outside, sat down and made some jotted handwritten notes on the envelope she had been given during the meeting which contained information about the Pension Plan (page 137). She then states that she made type written notes (page 138) within a few days of the meeting and produced to the Tribunal a screenshot of the Meta data of the document to demonstrate that she had last amended that file on 26 March 2021. We accept that her notes on page 137 and 138 were made within a relatively short space of time, to set out her recollections of the meeting.

[97]She was called into the meeting by Christopher Cripps. In some ways his evidence is consistent with the Claimant’s. First, he did recall telephoning her to call her to come into the meeting. He did not disagree with her account that the reason he gave to her at the time was that she needed to come and get her payslip.

[98]We accept, therefore, that is all the Claimant knew about the meeting when she went into it. Christopher Cripps’ account is that he was asked by Mr Hine, his Grandfather, to attend the meeting and another that was held immediately after it, for experience. He is being trained to take over those aspects of running the business that Mr Hine is presently still responsible for. At the time, Christopher Cripps was still recuperating and he explained credibly that the impacts of his recent recovery from Covid were still being felt by him.

[99]We consider whether Christopher Cripps would have been called in for experience when he was still recuperating, had the meeting simply been intended by the Respondent to be for an informal purpose. It is certainly improbable that he was asked to attend the meeting if it was planned by the Respondent to be one only to hand out a payslip, or even to provide in writing details of the Pension Plan. The Claimant stated that she considered that he had been called in for the subsequent meeting with the apprentice.

[100]Her evidence is that there were three phases to the meeting. In the first phase she was given the payslip and the Pension Plan pack and was told that in future she would be paid SSP for sickness related absences, not full pay by way of company sick pay. She then states that there was the second phase where she made the multiple disclosures that are set out in the List of Issues, amongst other things. She goes into detail about what she said in paras.16.1 and following and 17.1 and following, of her Witness Statement. Then, according to the Claimant, Mr Hine brought up the out of date gravy towards the end of the meeting.

[101]Another matter where Mr Christopher Cripps is broadly consistent in his version of events with that of the Claimant, is that he stated it was about an hour into the meeting that stock control was brought up and that is consistent with the Claimant’s version that it was after the meeting had discussed a number of other matters that the out of date gravy was mentioned.

[102]By contrast, Mr Hine states that he kept shutting the Claimant down when she attempted to raise various concerns and reiterated that the stock rotation was the important matter that he wished to discuss.

[103]There are also contradictions between Mr Christopher Cripps’ evidence and Mr Hine’s evidence, as follows:103.1 The Claimant states that one of the matters she mentioned was being asked questions in interview that led to her revealing that she has Endometriosis. She states that Mr Hine accused her of being a liar and had not mentioned it in interview. Christopher Cripps, in his paragraph 8, says he has no recollection of the Claimant being called a liar, but states, “Mr Hine did explain that after the incident he researched the condition to be a more understanding employer”. Although this is not an acceptance by Christopher Cripps that the Claimant raised being asked about health conditions in interview, he does appear to accept by this that there was a discussion about the episode related to Endometriosis that the Claimant had experienced in November. In oral evidence, he appeared to accept that the Claimant referred in the meeting of 23 February to being asked about her health in interview and disclosing Endometriosis at that time. This contrasts with Mr Hine’s evidence which was that there was no mention whatever of the condition Endometriosis.

103.2 Another recollection of Mr Christopher Cripps about the meeting of 23 February 2021 is set out in his paragraph 9. He accepts that, in the meeting, the Claimant stated that the company had “contradictory Covid protocols” and also that she had told Mr Hine that employees, “…were fearful of admitting when they were ill in case they were mocked or lost their jobs.” However, Chris Cripps stated those allegations had been untrue. He goes on to detail why he says that is the case. This contrasts with paragraph 32 of Mr Hine’s statement. The extent to which the latter accepted that the Claimant raised matters that she states to have been of concern to her, is that he says she, “…kept interrupting and reverting to the subject of face masks quality / double masking and her distorted account of [Chris Cripps] gagging until I firmly said STOP ! and told her that we were there to discuss her work shortcomings and frequent absences”.

103.3 The contradiction is that whereas Mr Hine merely recollects the Claimant referring to face masks and her account of Mr Cripps retching, Mr Christopher Cripps accepts that the Claimant went further and said there were contradictory Covid protocols.

[104]That in itself is strikingly similar to the note the Claimant wrote (page 137), which recorded her having said, “Too many contradictions re health, safety and symptoms. Cannot risk health → no other option.”

[105]Her explanation of this and of the circling of the word “contradictions” was that she considered there to be a contradiction between implementing Covid Regulations and not supporting employees to take time off if they were unwell.

[106]As a whole, Mr Hine’s evidence was that the purpose of the meeting was to discuss performance and attendance (see his paragraph 60 where he also describes the Claimant as “not fulfilling tasks required of her which led to stock waste”). However, we think it is surprising that had the intention been to have such a meeting, it was done without even the limited amount of preparation given for the six week review. On that occasion at least the Claimant had known she was coming to a six week review and the bare bones of the matters to be discussed were set out in advance in a letter that formed the basis of the discussion.

[107]As we have explained above, we have found that Mr Hine’s recollection is suspect and we look for documentary support for his recollections, rather than taking it at face value as a result. Mr Christopher Cripps’ evidence suggests that the overall structure of the meeting was as the Claimant says, rather than as Mr Hine says.

[108]For those reasons we consider the Claimant’s recollection to be more reliable than that of Mr Hine. There is a specific allegation made by both Mr Hine in his paragraph 33 where he alleges that when he addressed the question of stock control, the Claimant stated, “That’s correct, but I have a short term memory deficiency!”

[109]Mr Hine states that that caused him to say that she was not capable of doing the job. He continued that the Claimant then became emotional and he suspended the meeting and gave her the afternoon off.

[110]Mr Christopher Cripps also confirms his Grandfather’s account of that statement saying in his paragraph 7 that the same phrase was used by the Claimant. It was first alleged by the respondent in the termination letter dated 1 March 2021 (page 120).

[111]The Claimant cross-examined Mr Hine effectively about his account of the extension of the probationary period in paras. 56 and 57. We have referred to that in paragraph 81 - 84XX above. In that, he referred to the Claimant having taken notes as a memory aid which the Claimant states to have been only at the start of her employment. In the Progress Report for the week ending 21 November 2020, at page 101, it was noted that the Claimant appeared, “…to need to make a lot of notes as a memory aid. In interview, you did not make us aware of any problems so if there is one please do talk to the Chef or myself in order that we can assist.”

[112]The Claimant put to Mr Hine that he had re-ordered events by stating that that had been something causing him to extend the probation in order to bring the memory point to the fore and appear to give support to his assertion that she claimed to have a short term memory problem. In other words, she put to him that he had made a false accusation that she stated she had a short term memory deficiency and gave more prominence to the notes being used as a memory aid in his Witness Statement in order to fit with that. He denied that, stating that had the Claimant not made that statement about a short term memory deficiency he would have proceeded with what he had gone into the meeting intending to do which had been a warning about what she needed to do for the remainder of her probation if she had any chance of being confirmed in full time employment. So he stated in support of the allegation that he had changed his mind from going into the meeting intending to continue with the probation to 31 March 2023 but setting clear expectations, to a decision to dismiss the Claimant immediately.

[113]We think it is possible that consciously, or subconsciously, Mr Hine drew on the point about notes as a memory aid and made it appear that that concern had been expressed two months after it had actually had, in order to make it appear more likely that the Claimant had stated that she had a short term memory problem. We think it is far more likely that the Claimant referred to a lapse of concentration in explanation of her failure to spot the gravy behind the flour on the top shelf and the Respondent’s witnesses have sought to retro fit an explanation for their decision ultimately to dismiss the Claimant.

[114]The Claimant’s manuscript notes at page 137 suggest that the following topics were raised by her at the meeting:114.1 Her request that she be permitted to choose to wear a double mask;

114.2 A statement that caused her to think Mr Hine doubted that she had genuinely had Covid symptoms on 13 and 14 February 2021;

114.3 The number of and reasons given for the Claimant’s absences;

114.4 In particular, the day off because of taking steroid medication and to get an immune boost, seemed to have been mentioned, as was the water leak absence; and

114.5 Then the Claimant mentioned what she regarded as being contradictions and that the Directors had come in at a risk to their own health.

[115]The bulk of the notes concern the Claimant’s own absences and the reasons for them rather than her concerns relied on as Health & Safety concerns or disclosure in the present litigation. The typed notes at page 138 do provide a near contemporaneous support for her account that various matters of concern to her were raised. Some of these were corroborated by Mr Hine and Christopher Cripps as we have already said.

[116]To go through the Claimant’s manuscript list:116.1 The word “Endo” on page 138 supports her allegation that she raised the question of being asked a medical question at interview which caused her to reveal that she had Endometriosis and this was also recalled by Christopher Cripps. We accept that she did communicate that information;

116.2 The Claimant’s allegation that she told the Respondents that they asked employees to work excessive hours, including young workers, is supported by her typed notes at page 138 where she states that the Apprentice, aged 16, had worked 17 hours on one day;

116.3 Her allegation that an employee had vomited and not been sent straight home, or excluded for 48 hours, and that she mentioned that on 23 February 2021 is supported by the bullet point about Mr Cripps on page 138 and his and Mr Hine’s acceptance that the incident was mentioned;

116.4 Her allegation that she told the Respondent that a child employee had not been allowed to leave when coughing or visibly ill, in relation to the Apprentice at Christmas is referred to on page 138. It was reflected by Mr Cripps in his oral answers to cross examination when he initially said that he recollected it and then said it might have been briefly brought up;

116.5 Both Mr Cripps and Mr Hine recollected the incident where Christopher Cripps had retched into the sink being mentioned in the 23 February meeting. It is also more likely than not that the claimant made specific reference to the apprentice not immediately being sent home when he vomited at work;

116.6 Mr Hine does recollect the Claimant raising the question of not being permitted to wear a double mask. This is a different social distancing concern than the Claimant’s allegation that she raised the lack of suitable seating to enable a place to rest or eat in the pandemic but it does suggest that the Claimant’s concerns about her inability to socially distance and take protective measures that she was comfortable with, are recollected by him to have been mentioned which provides some support for her case; and

116.7 The Claimant’s account that she stated the Respondent penalised employees for genuine illness or symptoms, is at the heart of her explanation that she considered there to be a contradiction between the social distancing measures in the shop and their attitude towards illness.

[117]Overall there is sufficient support in the documentary evidence and in the Respondent’s account to cause us to give credence to the Claimant’s account. Furthermore, there have been reasons for us to doubt the Respondent’s accounts as we have explained already. For those reasons we prefer the account of the Claimant of 23 February 2021. We accept her account that she communicated the information that we have set out above.

[118]As we explain in paragraph 112XX above, Mr Hine says that he was the decision maker and that he decided to dismiss having gone into the meeting with the intention to set clear expectations for how the Claimant would succeed in passing her probation. It is clear from Mr Christopher Cripps’ evidence that he played no part in the decision and his reflection is that he was an observer at it. He said he could not remember a lot about the meeting, but remembered sitting in the chair with the conversation being a bit of a blur. He said that he was still short of breath at the time and was not doing physical work. Mr Hine said that having made the decision he then spoke to Philip Cripps and informed him of it.

[119]We have rejected Mr Hine’s and Mr Christopher Cripps’ evidence that the Claimant made the statement that she had a “short term memory deficiency”. Given that, we need to consider what was it that changed Mr Hine’s mind about the Claimant’s continued employment. The conclusion we have reached is that Mr Hine thought that the Claimant was making trouble.

[120]It was clear from some of his evidence that Mr Philip Cripps considered that the Claimant overstepped her responsibility when dealing with other staff in the shop. Mr Hine criticised her corporate attitude and, using our own words, appears to have thought that she was somewhat self-righteous. The Respondent’s Directors had conducted their business in a particular way for a long time and did not see any reason to change.

[121]The events of the meeting of 23 February 2021 were clearly a trigger for Mr Hine’s decision to dismiss the Claimant at that time. Although he says that capability and attendance were problematic, the most recent probation review did not raise any criticisms whatever about capability or performance. We accept that the Respondent had genuine and objectively justifiable concerns about attendance. But nevertheless, it was something that happened in that meeting that caused the decision to dismiss to be made. We are driven to the conclusion that that was the disclosures made by the Claimant on that day, when she outlined her criticisms of a number of things that had happened over the previous couple of months.

[122]It is worth recording that although the statement was made in January that there were no concerns about performance, in terms of the actual tasks that the Claimant was doing, it appears that Mr Philip Cripps felt that she was supposed to be carrying out simple tasks and she just needed to get on with them. He thought she ought to be able to have mastered the preparation that he was demonstrating to her and stated that he could not understand why her productivity level was not to the standard expected. There does appear to have been some dissatisfaction on the part of the Respondent with the Claimant’s performance, but not enough to have been expressed as a reason for extending her probation. Mr Philip Cripps thought that he could work with her and that she would improve. The principal reason for the dismissal happening when it did, was what the Claimant communicated in that meeting. What would have happened had she not been dismissed for that, is a question for the remedy hearing. Questions such as whether the Claimant would have resigned, or whether the Respondent would have dismissed the Claimant in any event and if so when, are not for this stage in the proceedings. The Law applicable to the claims Protected disclosure detriment or dismissal claims

[123]The structure of the protection against detriment and dismissal by reason of protected disclosures provides that a disclosure is protected if it is a qualifying disclosure within the meaning of s.43B ERA and is made by the employee in one of the circumstances provided for in s.43C ERA.

[124]Section 43B(1), as amended with effect from 25 June 2013, reads as follows, “In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following — (a)…, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)…, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e)… .”

[125]In Kilraine v London Borough of Wandsworth

[2018] ICR 1850

, Sales LJ rejected the view that there was a rigid dichotomy between communication of information and the making of an allegation, as had sometimes been thought; that was not what had been intended by the legislation. As he put it in paragraphs 35 and 36, “35. …In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). … 36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in [Nurmohammed], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[126]The structure of s.43B(1) therefore means that the tribunal has to ask itself whether the worker subjectively believes that the disclosure of information, if any, is in the public interest and then, separately, whether it is reasonable for the worker to hold that belief. Similarly, we need to ask ourselves whether the worker genuinely believes that the information, if any, tends to show that one of the subsections is engaged and then whether it is reasonable for them to believe that.

[127]The reference to Nurmohammed is to Chesterton Global Ltd v Nurmohammed [2017] I.R.L.R. 837 CA, where the Court of Appeal gave guidance to the correct approach to the requirement that the Claimant reasonably believed the disclosure to have been made in the public interest at paragraphs 27 to 31 of the judgment. Those paragraphs can be summarized as follows:127.1 The Tribunal has to ask, first, whether the worker believed, at the time that he or she was making it, that the disclosure was in the public interest and secondly whether, if so, that belief was reasonable.

127.2 The second element in that exercise requires the Tribunal to recognize that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured.

127.3 The tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking but only that that view is not as such determinative.

127.4 The necessary belief on the part of the worker is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks to justify it after the event by reference to specific matters.

127.5 While the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it.

127.6 The essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest.

[128]If the worker has made a protected disclosure then they are protected from detriment and dismissal by s.47B and s.103A of the ERA respectively. So far as material, s.47B provides, “47B.— Protected disclosures.(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W’s employer in the course of that other worker’s employment, or (b) by an agent of W’s employer with the employer’s authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker’s employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker’s employer. …

(2) This section does not apply where— (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of [Part X] ).”

[129]By s.48(1A) of the ERA, a worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of s.47B.

[130]Section 103A, so far as is relevant, provides that: ''An employee who is dismissed shall be regarded … as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure''

[131]This involves a subjective inquiry into the mental processes of the person or persons who took the decision to dismiss. The classic formulation is that of Cairns LJ in Abernethy v Mott Hay and Anderson

[1974] ICR 323

at p. 330 B-C: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss the employee."

[132]The reason for the dismissal is thus not necessarily the same as something which starts in motion a chain of events which leads to dismissal.

[133]Where, as in the present case, the dismissed employee did not have sufficient qualifying service to bring a claim of so-called “ordinary” unfair dismissal, they bear the burden of proving that the reason or principal reason for the dismissal was the protected disclosure or, as the case may be, the fact that they raised health & safety concerns.

[134]So far as is relevant, s.44 ERA provides as follows: 44.— Health and safety cases. (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that— (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee— […] the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, (ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),[.or] (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety. […] (4) This section does not apply where the worker is an employee and the detriment in question amounts to dismissal within the meaning of Part X.”

[135]So far as relevant, s.100 ERA provides as follows: 100.— Health and safety cases. (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that— (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee—[…]the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, (ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise), (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) ….”

[136]The claimant relies on s.100(1)(c), which applies if the employee works at a place where there is no official safety representative or there is one and it is not reasonably practicable to raise the relevant health and safety issue through them.

Conclusions

[137]We have set out in paragraphs 112-115 XX above our findings about the several disclosures of information made by the Claimant on 23 February 2021. She has satisfied us that she communicated information as alleged in para.14.1XX. Those communications has sufficient specificity to amount to factual information which tended to show that either there was a failure to comply with a legal obligation or that there was or had been a risk to the Health & Safety of individual(s) for reasons which we explain in more detail below. The Claimant has also persuaded us that she genuinely and reasonably believed that the disclosures were made in the public interest for the following reasons:137.1 She knew that the questions she was asked in interview, that appear on the template form on page 87, appeared on a preprinted list of possible interview questions. She therefore knew that, if on no other occasion, the same questions were asked of the individual who was interviewed on the same day as her. She explained to us and we accept, that she believed therefore that it was part of the Respondent’s interview process for others certainly on the same day as her, probably before and potentially after, that they asked questions about general health in breach of their obligations under s.60 EQA. We accept that she believed this to be a matter of public interest concerning not merely herself, but a wider section of the public, namely those that were interested in applying for work with the Respondent. Although the Claimant did not know at the time that the prohibition on asking questions of that kind is found in s.60 EQA at the time that she communicated the information she genuinely believed that it was contrary to an obligation of recruitment practice and employment law. Given her previous background, that was a reasonable belief for her to hold.

137.2 Her statement that excessive hours were worked by staff, including by young workers, was based upon her own observation of that. The detail was that she believed that the young worker had worked for 17 hours in one 24 hour period. Even if the Apprentice had, as Mr Philip Cripps asserted, worked 12 hours that was still more than was permitted under reg.5A WTR. The Respondent is clearly a regular employer of young workers and in this instance was training the Apprentice as a Butcher. We accept that not only did the Claimant genuinely and reasonably believe that she was communicating information which tended to show that there was a breach of the Working Time Regulations 1998, but that she genuinely and reasonably believed it to be of public interest because it concerned a section of the public wider than herself, namely young workers and prospective young workers of the Respondent.

137.3 The Claimant has not identified a specific legal requirement that employees who have been sick at work should be excluded for 48 hours. It is common ground that that is good practice and Mr Hine had criticised the Claimant for asking whether she should remain at home if she had been sick. Whether or not there is a specific legal obligation engaged, we accept that the Claimant reasonably and genuinely believed that when the Apprentice had vomited on more than one occasion and had not immediately been sent home this was contrary to, at the very least, expected normal good practice for infection control and therefore had risked the health and safety of other members of staff and, potentially, customers. This information, therefore, tended to show the wrongdoing set out in s.43B(1)(d) Employment Rights Act 1996. The Claimant also genuinely and reasonably believed that there was at least some risk to public health by an individual not immediately being removed from the workplace, based on what she had observed of his state of health, given that his role was food preparation.

137.4 The communication that the Apprentice had not been allowed to leave when visibly ill, we likewise accept was genuinely and reasonably believed by the Claimant to tend to show that the Respondent had endangered the Health and Safety of that individual and that they were not complying with a legal obligation to protect their employee from harm, or other employees from harm who might come into contact with and contract something from the Apprentice. We also accept that the Claimant genuinely and reasonably believed that when a worker engaged in food preparation was unwell and not removed from the workplace, that was in the public interest because of the risk of communication of disease to members of the public attending the shop and other members of staff.

137.5 By like reasoning, we accept that the communication of information about Christopher Cripps retching into the sink satisfies the statutory test for protected disclosure.

137.6 The Health and Safety Executive documentation, at page 95 of the Bundle, states that there should be a suitable seating area for workers to use during their break, although the Respondent was not asked questions about this. We consider that the Claimant reasonably and genuinely believed that the lack of suitable rest facilities was a breach, as she alleges, of the Work Place (Health, Safety and Welfare) Regulations 1992, but also that the consequence of no proper seating arrangements was that in particular in the run up to Christmas, employees were huddled together on the stairs to eat and were unable to practice social distancing during the time of the pandemic. She genuinely and reasonably believed that not only did this tend to show a breach of a legal obligation to provide these facilities, but also that the employees’ health and safety were at risk because of the risk of communication of disease. She genuinely and reasonably believed that this was in the public interest because of the risk to the members of staff as a whole and not merely to herself.

137.7 When the Claimant communicated on 23 February 2021 to Mr Hine and Christopher Cripps that she considered there to be a contradiction between the obligation on the Respondent to follow legislation & guidelines in relation to coronavirus and their attitude to employee illness, namely that she had observed employees who appear to be disbelieved or penalised for apparently genuine illness, she genuinely believed that this led to people remaining in the workplace when they were unwell and unfit to do so. She gave us a prime example that of Mr Hine himself, whom she had observed as appearing to become unwell immediately before Christmas. At the time she made the disclosure of information on 23 February 2021 she knew that a large number of the members of staff working on 24 December 2020 had been ill with coronavirus over the following two to three weeks. She genuinely and reasonably believed that this behaviour was in breach of the employer’s duty of care to employees to take reasonable care that they should have their health and safety protected at work and was also a risk to the health and safety of those employees. She also genuinely and reasonably believed that her communication was in the public interest because it concerned that wider group of employees and, potentially, customers.

[138]For those reasons we are satisfied that all the information categorised into seven different categories that was communicated on 23 February 2021, was a qualifying disclosure within the statutory test set out in s.43B(1)(b) and (d) ERA. These were, therefore, protected disclosures because they were made to the Claimant’s employer.

[139]As set out above, s.44 and s.100 Employment Rights Act 1996, require first that there should be no designated Health and Safety Representative at the place of work, or that if there is one it is not reasonably practicable to bring the matters of concern to that person’s attention. We have heard that Mr Philip Cripps was the designated Health and Safety Representative. Although this was not canvassed in argument, it seems to us that the Claimant probably does not fall within those sections because a different route of bringing Health and Safety concerns to her employer was available to her. We are mindful that this particular point was not canvassed with the Claimant, either by the tribunal or by the Respondent in submissions. However, in circumstances where we have accepted that the disclosures were protected disclosures within Part 5 of the Employment Rights Act 1996, it makes no difference to the Claimant’s chances of success whether we also find that she was protected under s.44 and s.100 as a result of the same communication and we do not think it necessary to recall the parties to cover this point. We conclude that, because she did not go to the Health and Safety Representative those sections are inapplicable and we dismiss those claims.

[140]The detriments that had been relied on by the Claimant in the original List of Issues all pre-dated the disclosure relied on at the Final Hearing. The extension of the Claimant’s probationary period was done on 22 January 2021, before the meeting at which the disclosures were made. They therefore cannot have been done on grounds of the disclosure and the claim of protected disclosure detriment fails.

[141]However, insofar as the dismissal is concerned, we accept that it was the communication of information in that meeting of 23 February 2021 that caused Mr Hine to decide to dismiss the Claimant rather than, as he had intended going into the meeting, to set out expectations for her attendance that she would need to meet if she was to be confirmed in post at the end of her probationary period. We accept that the reason, or principal reason for dismissal was therefore the protected disclosures that were made by the Claimant on that occasion and find that she was unfairly dismissed. Unauthorised deduction of wages: Findings and

Conclusions

[142]The Claimant claimed underpayment of bonus as a detriment on grounds of protected disclosure, but as such it fails by reason of pre-dating the disclosures relied on. Mr Hine’s evidence was that he made the decision about the bonus and stated that the Christmas bonus was a relatively small part of the bonus, more as a thank you with the staff being paid overtime for the hours that they had actually worked at a standard rate. His evidence was that, following his recovery from coronavirus, he started thinking about the amount of the bonus on or around 14 January 2021 and had to send the figures to payroll by 19 January 2021 in order for it to be paid at the end of January. His evidence was that the Claimant had received a quarter of what the Butchers had received and they had been paid £600. In this instance, we accept Mr Hine’s evidence about what he did and why. Preparing bonuses is an annual event and the timing he referred to is consistent with the documentary evidence on page 91.

[143]The Claimant’s evidence from her Schedule of Loss was that she was claiming £1,750.00, the difference between what she was paid and what she stated an unidentified person in the similarly junior position to her was paid, which was £1,900. We consider the Claimant’s evidence about that to be anecdotal and not reliable, it is not supported by documentary evidence. Furthermore, it is clear that the decision to pay her £150 was made before she made the protected disclosures.

[144]The bonus was a discretionary payment as appears from page 91. Although the Claimant had not seen this statement of the Bonus Scheme during the course of her employment, she did not dispute that it was genuinely the way that the bonus was administered. It states that the first payment is based on nine months from 1 April to 31 December and is prorated if someone joined during that time period, as the Claimant did. The second payment is stated to be based on the overall performance or profitability of the company for the full financial year up to the end of March. It is stated to be usually added to the main monthly salary.

[145]Although not expressed in that note to be discretionary, we accept that it was (RH statement para.64). In any event, the Claimant has not shown that she was contractually entitled to more than the £150 that she was paid. It is open to her to argue that had she remained in employment she would have received a bonus in her May month’s salary and that that should be added to her compensation.

[146]Insofar as annual leave is concerned, we accept that the effective date of termination was 31 March 2021. The Claimant had become unfit to work following the events of the meeting of 23 February 2021 (see page 118 where she sends a Doctor’s note to the Respondent). The reason she describes in that letter for taking sick leave, is “an intolerable burden re honest and open symptom reporting of Covid prevention measures, employer / employee duty of care and sick leave”, That, and her statement that she had tried to discuss that on Tuesday, also supports her evidence that she made the disclosures relied on.

[147]On 1 March 2021, Mr Hine wrote to the Claimant stating that in the meeting the Claimant had, “…surprised us by accepting the problem and stating that it was because you had a short term memory deficiency.” He went on to say that this amounted to an admission that she was unable to do the job and had made a decision to terminate her employment with one week’s notice. He stated that her trial period had been due to end on 31 March 2021, “So we are prepared to pay your full salary for the month (not SSP) without you having to work. We hope this gesture is accepted in the spirit in which it is given.”

[148]According to the Claimant (her para. 22.2), she received this on 4 March 2021. Her final salary was paid on 31 March 2021 (page 128). That payslip does not include any holiday pay. The Claimant had worked for the Respondent for six months and was a full time employee. Over those six months she therefore had accrued 14 days’ leave. The leaving date on the P45 of 31 March 2021 corresponds with that asserted by the Claimant. The Claimant also took the Respondent in cross examination to the payroll records as objective evidence that the Respondent’s internal payroll records indicated that she was still owed 14 days. The Respondent agreed that if we conclude that the Claimant was paid until the end of March and that her employment ended on 31 March 2021, then 14 days’ annual leave was payable. We accepted that common position.

[149]The Respondent’s argument was that they knew that they were paying more to the Claimant than they needed to pay by paying her until the end of the month and considered that that should include whatever holiday was owing. However, the first decision we need to make is what was the effect of the termination letter and when did it cause the employment to end. Although the wording of the letter of 1 March 2021 is not entirely clear, where Mr Hine says, “Your trial period was due to end March 31, 2021, so we are prepared to pay your full salary for the month (not SSP) without you having to work”, In the context where the Claimant had been told that she will only be paid SSP for sickness absence and has provided a Doctor’s Certificate to last until 11 March 2021, we consider that the only sensible construction of that letter is that it communicated the termination of employment giving more than statutory or contractual notice so that the employment came to an end on 31 March 2021. Not only is that consistent with the P45, but the Respondent in their Grounds of Response and ET3 accepted that the date of termination relied on by the Claimant was the correct date.

[150]We therefore find that the effective date of termination was 31 March 2021.

[151]The Claimant succeeds on the holiday pay claim, and we order the Respondent to pay her 14 days’ pay. Otherwise, the unauthorised deduction from wages claim fails. The overtime claim has been withdrawn and the Claimant was not contractually entitled to a bonus in excess of that which she received at the end of January 2021. It is possible that sums which might have been paid by way of bonus will form part of the claim for compensation.

Conclusions

[1]UPON the Tribunal declaring that the respondent owed 14 days’ pay in respect of holiday pay accrued but not take on termination of employment, AND UPON the parties agreeing that the daily rate of pay was £72.00, the respondent shall pay to the claimant the sum of £1,008 which is calculated before statutory deductions for tax and employee’s national insurance contributions.

[2]Judgment on the remaining remedy issues and on the application for a preparation time order is reserved.

Conclusions

[1]The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the compensatory award payable to the claimant by 25% in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992.

[2]When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. It is just and equitable to make an award of an amount equal to two weeks’ gross pay.

[3]The respondent shall pay to the claimant compensation for unfair dismissal of £9,025.31 calculated as set out in the following table. The award of compensation in respect of the food allowance is set out separately in case there needs to be a different tax treatment of that sum. Compensatory Award 18 weeks and 5 days @ £321.06 (incl. pension 6008.41 loss but net of tax and NI) p.w. Bonus (after deduction for tax and NI) 261.55 25% uplift for s.207A TULR(C)A 1,567.49 Subtotal 7,837.45 7,837.45 loss of food allowance 18 weeks and 5 days @ £20 p.w.gross 374.29 25% uplift for s.207A TULR(C)A 93.57 Subtotal 467.86 467.86 Total Compensatory Award 8,305.31 s.38 EA 2002 (made after ACAS uplift according to s.207(5) TULRCA) – 2 X £360 720.00 TOTAL AWARD 9,025.31

[4]We make a preparation time order in favour of the claimant. The respondent shall pay to the claimant £683 calculated at 5 hours @ £42 p.h. + 11 hours @ £43.

[1]In addition to the documents noted in our reserved liability judgment, sent to the parties on 22 December 2022, as having been available at the time of the hearing in November 2023, some additional documentation was provided to the tribunal at the remedy hearing. In these reasons pages in the remedy bundle are referred to as RB page 1 to 73 and in the remedy supplementary bundle as RSB page 1 to 31 as the case may be. Where it has been necessary to refer to pages in the liability hearing bundle, we use the description LB page 1 to 160.

[2]We refer to, but do not repeat, our findings of fact in that liability judgment. In it we found that the claimant had been automatically unfairly dismissed but that her claims of detriment on grounds of protected disclosure were not well founded. Without limitation to the paragraphs in the reserved liability judgment which were relevant to our conclusions at the remedy stage, we remind ourselves about relevant findings we made about the credibility of the witnesses in particular of Mr Hine (see paragraph 17 to 22 of the reserved liability judgment). When it came to our findings about one key event, namely the meeting of 23 February 2021, we preferred the claimant’s account and remind ourselves of our findings in paragraphs 96 to 122 and in particular our finding at paragraph 113 that the claimant did not make the alleged statement about short-term memory deficiency.

[3]We also made relevant findings about the extent to which capability was an issue during the employment at paragraphs 26 to 30 and that there was a discussion about stock control in the probation meeting, see paragraphs 80 to 91. We made a finding that capability was not mentioned in the probation extension letter but that the claimant’s absence on 21 January was part of the reasons for that extension.

[4]The claimant had less than one year continuous service so the arithmetical formula for calculating a basic award leads to a nil award. This explains why there is no basic award in the schedule of loss put forward by the claimant in RSB page 56, updated as at 9 February 2024.

[5]The following issues arose to be decided in relation to remedy:6.1 Would the claimant have remained in post after 31 March 2021 - which was the end of her probationary period - or would she have failed to successfully complete probation?

6.2 Is the claimant entitled to compensation for loss of statutory rights?

6.3 What period of loss of earnings has the claimant shown to have been caused by the unlawful dismissal? In particular, were the claimant’s losses extinguished from 10 August 2021 when she obtained alternative employment at a higher rate of pay or did her loss continue through that subsequent employment and then onwards from February 2022 when she resigned from it?

6.4 Has the claimant failed to mitigate her loss? The tribunal will need to consider:6.4.1 Acting reasonably, what steps would the claimant have taken to mitigate her loss?

6.4.2 Had she taken those steps, what alternative income would she have earned and from what date?

6.4.3 Did the claimant act unreasonably in failing to take those steps?

6.5 Should an award be made under s.38(3) Employment Act 2002 (hereafter referred to as the EA 2002) for lack of a s.1 ERA statement of terms and conditions at the time proceedings started? If so, should the award be of two or four weeks?

6.6 How should the tribunal assess loss of pension benefit?

6.7 Would the claimant have earned a bonus had her employment with the respondent continued and, if so, in what sum?

6.8 Was the claimant entitled under the terms of her contract to £20 per week food allowance and, if so, over what period should she be compensated for the loss of that benefit?

[7]The claimant had also originally included a complaint of unpaid Christmas overtime hours but this had effectively been dealt with at the liability stage and in the most recent schedule of loss (RSB page 5) the alleged loss was deleted.

[8]In respect of the claim for compensation for loss of statutory rights, the claimant had been in employment for approximately five months at the date of dismissal and had not acquired statutory rights to long notice or not to suffer unfair dismissal. The claimant argued that she should be compensated for the lack of an opportunity to acquire those rights but, in reality, she had only recently started her employment and it was not as though she was imminently going to acquire them had the respondent not acted as they did. Our view is that the claimant is seeking compensation for loss of rights that she did not have and it is too speculative to say that she would have acquired them. We would be compensating her for the loss of something that she did not have.

[9]It is the unanimous decision of the tribunal that the claimant has shown that it is more likely than not that she would have successfully completed her probationary period. Our findings were that it was only the dismissal that was unlawful not the extension of the probation. Therefore, as at the date of dismissal, she was still on probation, which was to last until the end of March 2021 (LB page 114). Our findings were that her performance or capability was not the basis of the decision to extend probation at that time; that was based on frequent absence.

[10]Between then and the meeting on 23 February 2021 there had been no mention of performance issues. The only mention of performance issues we found there to have been during that meeting was minor, contrary to Mr Hine’s evidence of the exchanges on that date. In any event, Mr Hine had gone into that meeting with the intention to give the claimant clear markers for how she needed to conduct herself in order to succeed in completing probation which had just over a month to run. We are of the view that the claimant would have made sure that she would have passed. None of the performance matters were matters which she could not have satisfied the respondent about and we are satisfied that she would have been confirmed in her employment at the end of March 2021 had the respondent acted fairly and lawfully.

[11]The claimant obtained alternative employment at a local pub/restaurant starting on 10 August 2021. This was at a higher rate of pay and extinguished her losses. The basis on which she argues that she should be compensated for the difference in income that she actually earned during and after that employment is that the reason that she resigned from it was to do with ill health. She sets out in her paragraphs 25.1 to 25.6 the efforts she made to find alternative work and the success that she had. Her work at The George was a full-time job as a junior Chef de Partie. She explains that, in February 2022, she left that employment because she had badly torn two tendons in her right arm that required four months of shock wave treatment to avoid surgery. Her argument was that, had she not been required to leave her employment with the respondent she would not have taken alternative employment that was more physically demanding. This, she argues, led to her taking time off work for problems with her arm and, ultimately, to her resignation because the job was too onerous, given that physical injury.

[12]The question for us is whether the loss of that income, the loss of the replacement employment and the difference during that employment between what she would have been earning with the respondent and any sick pay she was receiving when absent through ill health from her work at The George, is attributable to the actions of this respondent.

[13]S.123(1) Employment Rights Act 1996 (ERA) provides as follows: “Subject to the provisions of this section and [sections which limit or reduce the amount of the compensatory award] the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

[14]We have taken into account the guidance of the EAT in Whelan v Richardson [1998] I.C.R. 318 EAT and Islam Channel Ltd v Ridley (

UKEAT/0083/09

) as well as the wording of the statute itself.

[15]In Whelan v Richardson HHJ Peter Clark (page 324F to H “Each case must depend upon its own facts. … Compensation is to be assessed in such a way as to compensate the employee, not penalise the employer, in relation to the compensatory, as opposed to an additional or special award. Neither party should gain a ‘windfall’. Compensation must be that which is just and equitable. Parliament has thereby granted a discretion to industrial tribunals which ought not to be placed in a straitjacket by too rigid statements of principle handed down by this tribunal in appeal decisions. However, that discretion must be exercised in accordance with clear principles, to some extent imported into this field from the common law by the words of the statute.” And then at page 325G to 326 D the EAT sets out 5 points of principle, the last 3 of which are particularly relevant in the present case: “(3) … where the applicant has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal [... h]e will be compensated on the basis of full loss until the date on which he obtained the new employment, and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment. All figures will be based on net earnings. (4) Where the applicant takes alternative employment on the basis that it will be for a limited duration, he will not then be precluded from claiming a loss down to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment. (5) As soon as the applicant obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss cannot be revived if he then loses that employment either through his own action or that of his new employer. Neither can the respondent employer rely on the employee’s increased earnings to reduce the loss sustained prior to his taking the new employment. The chain of causation has been broken.”

[16]This approach was modified by the Court of Appeal in Dench v Flynn and Partners

[1998] IRLR 653

as explained by HHJ McMullen QC in Islam Channel paras 17 & 18 explaining that the Court of Appeal had been of the view that although in many cases a loss consequence upon unfair dismissal will cease when an applicant gets employment of a permanent nature at an equivalent or higher level of salary or wage than the employee enjoyed when dismissed, “to regard such an event always and in all cases putting an end to the attribution of the loss to the termination of employment cannot lead in some cases to an award which is just and equitable.”

[17]HHJ McMullen QC described the paradigm case where the replacement work was not permanent and said there was no automatic guillotine on whether a persons’ continued losses might be compensable by a former employer. Nevertheless, the statute directs the tribunal, when deciding what is just & equitable to have regard to the loss sustained by the claimant “in so far as that loss is attributable to action taken by the employer”. This is an important consideration.

[18]We do not consider the losses of income caused by the claimant being on sick leave during her employment at The George or following her resignation from that job are attributable to the act of the respondent to the present claim in dismissing her from her job as a butchers. Although one might say that ‘but for’ her dismissal from the butchers, she would not have worked at The George and would not have injured her arm, there was no connection between the claimant’s inability to sustain fitness to work at The George and the events that we have found to be unlawful acts of this respondent. We therefore conclude that the loss of income attributable to the actions of the present respondent stop on 9 August 2021 the day before she started work at the George. It is that loss we consider when assessing the compensatory award.

[19]In reaching this conclusion we have taken into account the explanation the claimant confirmed in evidence as set out on page RSB page 4 (the updated schedule of loss as at 9 February 2024 prepared following the liability judgment) In that, the claimant corrected the calculation in the original schedule of loss at RB page 56 and 57, which had been done on her behalf, but which did not include all of the losses that the claimant had wished to claim for. More detail in RSB page 3 and 4 is set out than is in her original witness statement about her search for alternative work and the financial circumstances she is in now. Nevertheless, it is clear that the replacement work was at a higher rate of pay than she had with the respondent and this extinguished her losses.

[20]The respondent argued that the claimant had failed to mitigate her loss and she was cross examined about the attempts she had made to find alternative work. We accept that she made the attempts that are set out in the section headed “Job searches” (RSB page 4). She started looking for alternative work within weeks of being dismissed by the respondent.

[21]National restrictions on businesses and on members of the public were in place due to the coronavirus pandemic at that time. We have refreshed our memories of the particular regulatory restrictions and note the following dates: 21.1. On 12 April (a little less than two weeks after the end of the claimant’s employment) non-essential retail was permitted to reopen but outdoor meetings only were permitted in small groups; 21.2. On 29 March the stay at home order came to an end; 21.3. On 17 May 2021 indoor venues reopened; and 21.4. On 19 July most legal limits on socialising were lifted.

[22]We accept that this context affects the likelihood that retail and hospitality businesses would between April and July 2021 be reopening and advertising for staff. The claimant describes there being limited public transport which we accept . However, there is a train station in Pangbourne which is also served by buses. Some public transport would have been available, for example, into Reading.

[23]The claimant had been offered project work by a contact of hers as is evidenced by the letter at RSB page 7. Her contact states that, when he knew that Ms Rees was no longer in employment with the respondent, they engaged in multiple discussions with a view to her being contracted to carry out work for the company he worked for as she had in the past. However, in July 2021, he himself left the company in question because he needed treatment for two serious medical conditions. We accept that the claimant genuinely and reasonably expected, during the period March to July 2021, to be likely to obtain work through her contact.

[24]The respondent argues that the claimant could have explored sources of potential employment in Reading or other potential employers in the local area with whom she could have worked remotely. There is some force in that argument although the respondent has not put forward evidence of particular jobs that were available at that time. Nevertheless, we think that acting reasonably, somebody in the claimant’s position would have cast the net more widely.

[25]We move onto the second part of the question that we have to decide. We give weight to a number of factors: the claimant’s age, the well-known difficulties in finding employment in general for people of her age, the uncertain state of the job market at the relevant time with the country just coming out of a national lockdown, and the complete lack of evidence or specific vacancies. We are not satisfied on the balance of probabilities that there would have been high number of employers looking for staff who did not have people to bring back from furlough, contrary to the respondent’s argument. We do not think that there is evidence that the claimant would have been likely to find work that extinguished her losses any sooner than she did had she looked at a wider range of possible employment opportunities. It is quite possible that the lifting of most restrictions on 19 July coincided with the availability of work at The George. We are not persuaded that the claimant would have found work sooner had she taken any different steps.

[26]Furthermore, we accept that she had personal reasons why she limited the overtures she did make to those she knew and trusted and those who were local to her. She had a reasonable expectation that the encouraging signs of employment through her contact would lead to fruition until July 2021. There matters that were personal to the claimant to do with her previous experiences with other employer(s) that mean that she did not act unreasonably in the steps that she took. The claimant has not failed to mitigate her loss.

[27]Turning to the question of the lack of a statement of terms and conditions. The full details of what is required to be provided under s.1 ERA are as follows: “(3) The statement shall contain particulars of—(a) the names of the employer and [worker],

(b) the date when the employment began, and

(c) [in the case of a statement given to an employee, ]the date on which the employee’s period of continuous employment began (taking into account any employment with a previous employer which counts towards that period). (4) The statement shall also contain particulars, […] of— (a) the scale or rate of remuneration or the method of calculating remuneration, (b) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals), (c) any terms and conditions relating to hours of work including any terms and conditions relating to— (i) normal working hours, (ii) the days of the week the worker is required to work, and (iii) whether or not such hours or days may be variable, and if they may be how they vary or how that variation is to be determined,

(d) any terms and conditions relating to any of the following— (i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the [worker’s] entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated), (ii) incapacity for work due to sickness or injury, including any provision for sick pay, [...] (iia) any other paid leave, and (iii) pensions and pension schemes, (da) any other benefits provided by the employer that do not fall within another paragraph of this subsection,

(e) the length of notice which the [worker] is obliged to give and entitled to receive to terminate his contract of employment [ or other worker’s contract],

(f) the title of the job which the [worker] is employed to do or a brief description of the work for which he is employed,

(g) where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end, (ga) any probationary period, including any conditions and its duration,

(h) either the place of work or, where the [worker] is required or permitted to work at various places, an indication of that and of the address of the employer, (j) [(j) to (n) are not applicable to the present case].”

[28]The provisions of s.38(3) EA 2002 mean that if at the time the proceedings start there is no statement complying with s.1 then we must consider whether to award two weeks’ or four weeks’ pay. As is recorded in our liability judgment, in effect the respondent accepted that this was something that they had failed to provide and there was no statement of terms and conditions that complied in full with s.1.

[29]What the claimant did have were the documents at LB page 89, the letter dated 20 October 2020 offering her employment for a trial period, and the document at LB page 90 which sets out her hours and some information about benefits. The claimant was given the general assistant information. We accept her evidence that she was not provided with the written bonus policy that is at page 91. She was only told that she would be eligible for a bonus but not how the bonus would be calculated. That would, it seems to us, probably fall within s.1(4)(da) ERA.

[30]What is missing, if one compares the details of LB pages 89 and 90 and those required by s.1(3) and (4) ERA, include the rate of pay, details of her holiday entitlement, statutory sick pay entitlement, the start date of continuous employment, the details of the bonus policy, the food allowance/details of the staff discount and the conditions of probation. This amounts to quite a number of relevant pieces of information that were not available. The claimant argues that it is relevant that she was not pointed towards the availability of a grievance policy and this is true but this is not one of the matters that is stipulated under s.1 ERA.

[31]In closing Mr Mawoko, on behalf of the respondent, argued that although there may have been some omission in providing all of the details that would be required in a contract the reasons were the extremely busy Christmas 2020 period shortly after the claimant started, the ongoing coronavirus pandemic with the restrictions and challenges that that posed for essential services retail outlets such as the respondent, and the ill health of key members of management from the respondent who had Covid-19 during the relevant period.

[32]This is not among the more serious kinds of default that we have seen. The reasons provided, which we accept as genuine, do not excuse the default but are reason we sympathise with in the circumstances. We consider that it is just and equitable to make an award of two weeks’ gross pay.

[33]The following are our findings on the other alleged losses which are said to flow from dismissal and are argued should be included in the compensatory award.

[34]We have found that the claimant had extinguished her losses and therefore we are looking at a period of loss from 1 April to 9 August 2021 inclusive and no further. We think it likely that the claimant would have stayed in employment in that period so there is no realistic prospect she would have left for some other reason. Had she stayed in employment she would have been paid one further bonus instalment in May 2021 in accordance with the policy at LB page 91. In that document it is explained a second bonus is usually added to the May salary but that it is based upon the overall performance and profitability of the company for the full financial year up to the end of March. There is no suggestion that the business was not in profit at that time.

[35]The claimant considered that the payment she received at Christmas was an underpayment. We rejected that argument at the liability hearing and accepted that the payment of £150 at that time was the appropriate rate for her given her position and her length of service, which was less than three months as at Christmas. She argued orally that she would have been paid £300 in May 2021 and £600 the following Christmas which was why she argued that the figure of £900 as an estimated bonus (RSB page 5) was appropriate.

[36]As a consequence of our conclusions on the period of the loss we are only considering the May 2021 bonus. In our view, the claimant would certainly have been eligible for at least a further £150 for the three months January to March 2021 – that would have been identical to the Christmas bonus. The respondent could easily have provided anonymised payslips for general assistants dated May 2021 had the figure claimed by the claimant been inappropriate. Their only argument in submissions was that she would not have been in employment at that stage and we reject that. In the absence of evidence from the respondent we accept the claimant’s evidence that the second bonus for the end of the financial year would probably have been higher than the interim bonus in Christmas and accept that £300 is a reasonable estimate of her loss. We award £300. However that is a gross figure and the compensatory award should be calculated net of tax and National Insurance.

[37]Doing the best we can we have compared the gross weekly basic pay of £360 with the net weekly basic pay of £313.86. This shows that the tax deducted represented 13% of the gross weekly pay and we think a reasonable estimate of the tax and National Insurance that would have been deducted from the bonus is that marginal rate of tax. £300 x 87% gives a net figure of £261.55 for the bonus that would have been paid to her in May 2021.

[38]We next consider what were the terms as to staff discount or food allowance. The general assistant’s terms at LB page 90 indicate that the employee would be qualify for staff discount on goods. The claimant’s evidence was that, in fact, this was operated as a food allowance of £20 per week. This is set out in her schedule of loss. The respondent stated in closing that a 25% discount on purchases was part of the benefits provided to employees but no questions were asked of the claimant about that in cross examination. Potentially the evidence by the claimant of a flat rate food allowance of £20 per week is not documented in LB page 90 but then it is only a partial description of the terms of a general assistant in any event.

[39]Given the lack of challenge by the respondent and the previous findings of lack of reliability in respect of Mr Hine’s evidence, we have decided on the balance of probability that this is something the claimant was entitled to as part of her employment. There is no refence to it on the payslips as a benefit in kind and therefore it seems that the purchases up to £20 in a week as a benefit in kind were not treated by the parties as being subject to tax. Whether they should have been or not is not for us to say. We therefore are in a position where we need to award the gross figure and make clear that our findings are that it is a benefit from employment. The figure will be calculated separately and the parties will have to agree what the appropriate tax treatment is.

[40]We move on to consider what the terms were as to pension. The payslips show the employer’s pension contributions were 2% of gross salary. There is relevant information in the liability hearing reserved judgment about the dates at which the claimant would have been enrolled in the respondent’s pension plan and we conclude that, certainly for the period covered by the loss - namely from 1 April 2021 onwards - she would have been enrolled in that scheme. 2% of the gross weekly salary of £360 is £7.20.

[41]When calculating the weekly loss of earnings we therefore use the net basic pay of £313.86 to calculate compensation but add to it the figure of £7.20 a week which is the actual sum that the respondent would have contributed to the claimant’s pension plan. That is the amount by which she is out of pocket.

[42]So, the multiplicand for the loss of earnings is £313.86 plus £7.12 which equals £321.06. The period of the loss is 1 April 2021 to 9 August 2021 which is 18 weeks and 5 days. Multiplying that by £321.06 comes to £6,008.41 to which should be added the net bonus figure of £261.55 so that the total losses for that period, excluding food allowance which will be set out separately as previously explained, are £6,269.96. ACAS Uplift: s207A TULRCA

[43]We move on to consider whether there should be an uplift on the compensation for an unreasonable failure to follow the ACAS Code of Conduct on disciplinary or grievance procedures. We drew to the parties’ attention the case of Ikejiaku v British Institute of Technology Ltd UK

EAT/0243/19

a decision of the EAT of 7 May 2020. That was a case in which the claimant had succeeded in a complaint of automatic unfair dismissal on grounds of protected disclosure. The EAT remitted to the tribunal consideration of whether there should be an uplift under s.207A of the Trade Unions and Labour Relations Consolidation Act 1992 (or TULRCA) because the respondent accepted in that case that the protected disclosure in question was a grievance within the Code’s definition. The EAT accepted that dismissal for the principal reason of a protected disclosure did not engage the ACAS Disciplinary Code because it was not an allegations involving the culpability of the employee (see Ikejiaku para.47).

[44]After the remedy hearing and after the panel discussion day in chambers on 20 March 2024, the EAT decision in SPI Spirits UK Ltd v Zabelin

[2023] EAT 147

came to the attention of Employment Judge George. It seemed that, since it considered Ikejiaku , the case of Zabelin had the potential to affect our conclusion on whether or not there should be an uplift for an unreasonable failure to follow the ACAS Code of Conduct on handling grievances. Judge George caused the tribunal to write to the parties on 3 April 2024 to draw this case to their attention and to invite any further submissions upon it.

[45]The claimant’s submissions were sent to the respondent and the tribunal on 10 April 2024. Although they could not originally be located by the tribunal, they were resent by the claimant and the respondent at Judge George’s request and we thank the parties for their cooperation in this respect. Due to a change in feeearner with conduct for the litigation at Peninsula, the respondent asked for extra time to make submissions and their response is dated 24 April 2024.

[46]Zabelin makes clear that for the grievance provisions of the ACAS Code of Conduct to be engaged, a grievance needs to be in writing (relying on paragraph 32 of the Code – see para.80 of the judgment in Zabelin . Where the EAT in Zabelin differed from the differently constituted EAT in Ikejiaku was in relation to the application of the ACAS Code on Disciplinary Procedures. HHJ Auerbach quoted the relevant parts of the Trade Union and Labour Relations (Consolidation) Act 1992 and pointed out that the jurisdictions listed in schedule A2 include unfair dismissal, the successful claim in the present case. He then went on to address the challenge to tribunals in trying to decide whether the disciplinary or grievance codes apply when they have made a binding decision that a protected disclosure (and not some potentially fair reason) was the reason or principal reason for dismissal. “72 . I start my analysis by observing that the ACAS Code is concerned with dispute resolution. It is intended to be applied and followed as and when disputes or concerns arise in the workplace, on either side, with a view to assisting their resolution by fair internal process. While employment tribunals inevitably only get involved after the event, the ACAS Code exists in order to help and guide the parties, as it were, in real time.73. Secondly, in the very broadest of terms, the distinction between grievance and disciplinary situations reflects the difference between a situation where the employee has a concern about something the employer has done, is doing, or may do, and one in which the employer is concerned about something the employee has done, is doing, or may do. In some cases, concerns on both sides may be in play, and a sequential or combined process or processes may need to be followed, which meet the standards of both the grievance and discipline provisions.

74. Thirdly, a recurring theme in the authorities is that the employer ought to follow a fair disciplinary procedure, conforming to the Code, where it is alleged that the employee has behaved unsatisfactorily in some respect for which (so it is alleged) the employee is, or may be, culpable. In line with that approach, the Code itself states that it does not apply to redundancy dismissals, or non-renewal of limited-term contracts. But it does apply where the allegation relates to the employee’s conduct, or to what is alleged to be poor performance by the employee.

75. Further, the line drawn by this distinction does not always align with the sub-categories of fair reasons for dismissing under sections 98(1) and (2) of the 1996 Act . This is a recurring theme in cases where the employer seeks to rely upon what is said to be a breakdown in the relationship, and to argue that the Code did not apply, but the employee contends that in substance the underlying concern arose from what was alleged to be their culpable conduct, so that the Code did apply. See: for example, Lund v St Edmunds School ,

UKEAT/0514/12

, 8 May 2013.

76. Similarly, while the statute has a single category of capability, that embraces both cases where it said that the employee was responsible for performing poorly, to which the discipline provisions of the Code would apply, and those where their capability is said to have been affected by ill health beyond their control, so that they would not apply. That is the specific point that arose in Holmes , which contains perhaps the clearest discussion of the general distinction between cases in which the employee is alleged to have done something culpable, and those where that is not the concern.

77. However, for present purposes, two further aspects of the discussion in Holmes need to be noted. The first is the observation, at [8], [12] and [15], that the Code states that disciplinary situations “include” those relating to misconduct and/or poor performance. That is not exhaustive, and the provisions relating to discipline may apply where there is an allegation of culpable conduct because of misconduct, poor performance or “something else” which requires “correction or punishment”.

78. The second aspect is the focus, in the discussion, on what the employer alleged , not on what the outcome of the process turned out to be, or whether the allegation was, in fact, well founded. That, I would observe, is in keeping with the fact that the Code is intended to guide parties as to how a matter should be handled going forward, the purpose being to ensure that employees are fairly treated at the time. As the EAT observed in Rentplus UK Limited v Coulson

[2022] ICR 131

, at [30], if, for example, the employer believed at the time that the employee had stolen money, but in fact, as matters turned out, that was wrong, it would be very surprising if the ACAS Code then did not apply. The protection of the ACAS Code is “particularly important for innocent employees.”

79. In my judgment, the same general principles should guide the tribunal in deciding, in a case which includes a claim that the claimant made protected disclosures, whether the grievance provisions of the Code, or the discipline provisions, or possibly both, should have been followed. This is to be judged not by reference to the hindsight of the outcomes that the tribunal has determined, such as whether the claimant did, in fact and law, make a protected disclosure, or whether, if so, that was the sole or principal reason for their dismissal, but by reference to what happened at the time.

80. If an employee raises a (written) concern, for example, that they are not being paid the correct wages, or that a pay cut has been wrongly imposed on them, that will trigger an obligation on the employer to follow the Code provisions relating to grievances, regardless of whether the employee raising that concern is later determined also to have amounted to the making of a protected disclosure.

81. Next, where the provisions of the ACAS Code, whether relating to grievance, discipline or both, were triggered by the events as they unfolded, which of them are relevant to the issues before the tribunal may depend on what the legal complaints are and/or which complaints have succeeded. If an employee complained that their pay had been wrongly cut, engaging the grievance provisions, and they later succeed in a wages claim, then the tribunal may need to consider under section 207A whether the grievance provisions were complied with. The same may apply if they also bring, and succeed in, a constructive unfair dismissal claim arising from the same matter. That should and would be so, whether or not the original complaint has been found also to amount to a protected disclosure.

82. But if the employee complains, or also complains, to the tribunal, that, following their complaint to the employer, the employer actually dismissed them, and did so unfairly, then, in respect of that complaint, the tribunal may need to consider whether the discipline provisions of the ACAS Code applied and were observed at the time. That may be relevant at the liability stage in respect of ordinary unfair dismissal. If the complaint succeeds, it may also be relevant when considering section 207A at the remedy stage. Once again that will be so, regardless of whether the complaint succeeded only as one of ordinary unfair dismissal, and/or one under section 103A. The employee should be able to enjoy the procedural safeguards of the Code whether their case is simply that they are not guilty of culpable behaviour, or that, more than that, the conduct in question amounted to the making of a protected disclosure. The employer, by following a fair process, would indeed enable them to advance that case, and enable itself then to give that consideration when deciding what to do.

83. Where the successful complaint before the tribunal is for detrimental treatment because of having made a protected disclosure, potentially, depending on the facts of the case, the grievance and/or discipline provisions of the Code may be found to have been engaged, or both, and a failure to follow either or both, to support an uplift under section 207A . The discipline provisions might apply (or also apply) if, for example, in a given case, the tribunal found that the issuing of a written warning was materially influenced by a protected disclosure, and no fair process had been followed.”

[47]What we take from that passage is that whether the grievance provisions of the ACAS Code or the disciplinary provisions or both sections of the Code should have been followed by the employer is to be judged not by reference to what we have determined but by reference to what happened at the time. This is logical because to be an unreasonable failure to comply with the Code the employer either did or ought to have realised that they should comply with the Code.

[48]We need to ask whether the claimant raised a formal grievance by her letter of 26 February 2021, whether that engaged the ACAS Code on grievance procedures and whether there was an unreasonable failure to comply with it. We need to consider whether there was an obligation on the employer to follow the ACAS disciplinary code, taking into account what the employer alleged and bearing in mind, where relevant, the distinction between cases in which the employee is alleged to have done something culpable and those where capability concerns are due to ill health (for example) which are beyond their control.

[49]However, whether the claim concerns a matter to which a relevant Code applies is a separate question.

[50]In assessing whether s.207A TULRA is engaged we have to consider whether “the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies”. We understand para.96 of HHJ Auerbach’s judgment to mean that a close relationship between the disclosure and the formal grievance would be sufficient to mean that the proceedings concerned a matter to which the Code applied.

[51]The present case differs from the factual situation in Zabelin. We have to consider whether the claim concerns a matter to which a Code applies in circumstances where a protected disclosure was oral and was therefore not a grievance which engaged the Code. However, we consider it is relevant whether or not the formal written grievance was closely related to the protected disclosure which was the reason or principle reason for the dismissal. Then the closely related concerns would be the subject of the claim – having been expressed both in the protected disclosure and in the formal grievance.

[52]We need to consider whether the letter of 26 February 2021 (LB page 118) was a grievance. We remind ourselves of our findings in the liability judgment about the meeting of 23 February 2021 in particular at paragraph 105. In that meeting, the claimant raised concerns that she had about contradictions between implementing covid regulations and , as she saw it, the respondent failing to support employees who needed to take time off if they were unwell. We consider that by that she was informally raising a grievance in the sense of raising a concern, problem or complaint about workplace practices. Since that concern had not been raised in writing, the ACAS Code of Conduct relating to grievances was not engaged at that point. We found that raising that concern amounted to the making of a protected disclosure.

[53]She raised her concern more formally by the letter at LB page 118 in which she referred to the protected disclosure the previous Tuesday. That letter provides a copy of her MED3 fit note but she linked her stress and consequent absence from work to the respondent’s management of their Covid-19 prevention measures. In particular we note the wording of the fourth paragraph: “But the past two to three weeks have led to an intolerable burden re honest and open symptom reporting, covid prevention measures, employer/employee duty of care and sick leave. I have tried to discuss this multiple times to get clarity – Tuesday being the last. As we’re in the middle of a lethal pandemic, the pressure of second guessing and risking my & others’ health/lives is too much.”

[54]She goes on to say that she is open to speaking late the following week or the week after preferably by phone. In that paragraph in particular she explains the consequences to her of the concern that she has about the way that the respondents manage symptom reporting and their covid prevention measures. The letter of 26 February 2021 also raises a concern about workplace practices and was a formal grievance. It was also clearly linked to the similar statements made by the claimant orally on 23 February 2021. In the first place the same or broadly similar concerns were stated. Secondly, she expressly refers to the 23 February statement about the same concerns.

[55]The claimant had clearly raised in her schedule of loss that she considered an uplift for unreasonable failure to comply with a relevant code was applicable in the present case. She did not specify which ACAS Code of Practice she referred to (see RSB page 5). However, the prospect that she might argue that the Code of Conduct in relation to grievances arose. Mr Hine was called to give evidence to explain why the letter at page 118 had not been responded to. His answer was: “I didn’t see any point I’d already made the decision following the bombshell over memory that she would be leaving the company. I didn’t see any point in taking the issue further.”

[56]The claimant reiterated the question that, by the letter, she had offered to speak further about her concerns and Mr Hine said that he had not seen the point.

[57]We found in our liability judgment that the alleged comment about memory was not made. Mr Hine had said at the liability stage that he had spoken to Mr Philip Cripps and Christopher Cripps about his decision after the claimant had left the room and he and his grandson had conducted the next meeting. His evidence was that, at that point, on 23 February, he had caught up with Philip Cripps and told him about the meeting and about the package that the respondent would offer or give the claimant. This appeared to be evidence that the decision to dismiss had been made on 23 February 2021 and yet the letter of dismissal was dated 1 March 2021 and sent some time later.

[58]To the extent that Mr Hine’s evidence was that he had sent the letter of dismissal before the claimant sent her letter on LB page 118, he is mistaken. Furthermore, there is clear reference to the contents of the letter of 26 February 2021 in Mr Hine’s letter of 1 March 2021 by which he dismissed the claimant. Not only does he say he is sorry that the claimant has another ailment, he explicitly refers to the email in the penultimate paragraph and the claimant’s expressed wish not to come into the shop. On any view, a decision to dismiss had not been communicated to her by the date of this letter so she was still an employee and the obligation to investigate her grievance remained. There are 3 days between receipt of the claimant’s formal grievance and communicating the decision to dismiss to her; the respondent appears to have presumed that the allegations were unfounded and proceeded to dismiss the claimant without any further formalities.

[59]We are glad to see that the respondent has apparently now engaged external HR consultants and we were told that they would in future take advice should such a situation arise again. However, that does not avoid the conclusion that there was a total failure to follow the Code of Practice in relation to the claimant’s grievance. That applies to grievances that have been presented in writing so it applied from the point when the claimant sent the letter at LB page 118 (SPI Spirits (UK) Ltd v Zabelin). The Code provides for a formal meeting to be held without delay (paragraph 33) to the statutory right to a companion at such a grievance meeting (paragraph 35), paragraph 40 requires the decision on what action to be taken to follow the grievance meeting and for the decision to be communicated in writing with the employee notified of the right to appeal. Paragraph 41 specifies the necessity to hold an appeal. None of these paragraphs were complied with. The only explanation for these failures is that the respondent did not see the point because the decision to dismiss had already been made. We do not think that provides an acceptable reason not to comply with the ACAS Code. There was an unreasonable failure to comply with all of the provisions of the Code set out in this paragraph.

[60]Even if the decision to dismiss was made after the oral informal compliant by the claimant the letter was not drafted until after the claimant wrote her own written grievance. Potentially, had the respondent treated the claimant’s letter as a grievance, they might have paused and investigated her concerns with cool heads and she might never have been dismissed because they might have reconsidered their decision. Her concerns were far from unreasonable.

[61]We have not seen any mitigating factors and there was a total failure to deal with the grievance, instead the respondent confirmed the dismissal they had decided upon which was motivated by the oral communication of broadly the same contents as the grievance a communication which we decided was a protected disclosure. This seems to us to be a relatively serious situation.

[62]However, in assessing the amount of uplift which is just to award under s.207A TULRCA, we also have in mind our conclusions on the applicability of the ACAS disciplinary code which are set out in the paragraphs which immediately follow and the overall effect on compensation. Taking things in the round, we consider it to be just and equitable to uplift the award of compensation by 20% for an unreasonable failure to follow the ACAS Code of Conduct on handling grievances.

[63]It was also argued on behalf by the claimant that the ACAS Code of Conduct on disciplinary matters applied. The bullet point under paragraph 1 of the Code states that: “● Disciplinary situations include misconduct and/poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted.  Grievances are concerns, problems or complaints that employees raise with their employers.”

[64]There is always an element of unreality when considering whether a disciplinary code applies to a situation when the factual context the respondent claimed existed at the time of the decision to dismiss has been found not to have happened. The judgment we make is whether, on the facts we found, the respondent had an obligation to follow the ACAS Code of Conduct on disciplinary matters.

[65]The respondent stated that they had dismissed because a statement made by the claimant suggested that she had a health problem that would have impacted or explained performance issues of a serious nature that they were perceiving. We rejected this. We rejected their assertion that the claimant said those words. However, we accepted that the context include one performance related concern which was raised in the meeting – the question of out of date gravy which had not been removed from a high shelf. The claimant’s response was that she had put into effect a system to avoid that risk. In addition to the stock rotation point, the respondent had extended the probation for reasons to do with persistent absence by the claimant including for ill health.

[66]It has been held that a disciplinary situation did not extend to a case in which the employer conducted a procedure to terminate an employee’s employment as a result of incapacity due to ill health: Holmes v QinetiQ Ltd [2016]ICR 1016 EAT. The Code is limited, in our view, to internal procedures related to allegations of culpable misconduct or performance or some other form of culpable behaviour.

[67]The explanation given for dismissal by the respondent, which we rejected, was, broadly speaking, capability related in the sense of whether the claimant had a medical condition affecting her performance. However, the background to the discussion did include elements of performance that the respondent considered might affect whether she would be confirmed in position: rotation of stock and the January extension of probation because of attendance. These are matters which involve allegations of culpable behaviour on the part of the claimant and would, on the face of it, engage the ACAS Code of Conduct on discipline.

[68]The claimant was still in probation but we think that the respondent still needed to manage the probation fairly. The mere fact that she had less than two years’ service – and therefore lacked the right to claim ‘ordinary’ unfair dismissal is irrelevant to whether the ACAS Code of Conduct on disciplinary applies to a situation or not. We see no reason why the fact that a probationary review was expected to take place by the end of March 2023 means that the principles of a fair process set out in the Code should not apply. Mr Hine’s intention going into the meeting on 23 February 2023 was to state the (limited) ways in which the claimant’s performance had fallen short and outline what was necessary for a successful conclusion to her probation. In the liability hearing, the claimant frequently contrasted the relative formality of the January probation review meeting – which was recorded in writing with the reasons for the extension given – with the lack of warning that she was to be challenged about her performance on 23 February 2023.

[69]Our view is that there is an obligation to follow the ACAS disciplinary code when managing probation. The separate question of whether, given a particular set of facts, there has been an unreasonable failure to follow the code would no doubt take into account the history of the probation and actions of the managers in instructing and monitoring performance. The consequence to the probationer of failure is that they are out of a job.

[70]The particular breaches of the ACAS disciplinary code which are relevant in the present case are that the claimant was not invited to a probationary review meeting – she had no warning that that was to be the subject of the meeting; she was not informed of the particular ways in which she was alleged to have fallen short before Mr Hine made a decision about her conduct, and she was not informed that she could, if she wished, have a companion. The provision of the Code which states that the employer should decide on the action after they’ve seen the employee is one of the most fundamental. On our findings, the respondent formed a view about the claimant’s culpability for performance related issues before asking her about them and intended to warn her that she would not be confirmed in probation.

[71]We take into account the size of the operation. The ACAS disciplinary code is intended to be flexible and a small, family-run butchers cannot reasonably be expected to have the formal processes of a multi-national. Had they followed their own practice from January then there would be no unreasonable failure but we do not see any acceptable explanation for the unfair process followed in relation to the meeting on 23 February 2024.

[72]Having said that, we are mindful of the decision we are about to explain in relation to the grievance which had greater impact on the claimant’s continued employment. The losses were caused by the dismissal and the failure to follow a fair process leading up to the meeting at which the protected disclosures were made was part of the context but not causative of dismissal. The central importance of that meeting to the claimant’s allegations and the respondent’s defence means that the claim concerned that meeting to which the ACAS disciplinary code applied. We think it important to mark our view that probationers need a fair opportunity to explain themselves before a decision is taken about whether they should be confirmed in position or not. That principle can fairly be reflected by a 5% uplift in the compensation awarded.

[73]It is just an equitable that there should be a 20% uplift for an unreasonable failure to comply with the ACAS Code of Conduct on grievances and a 5% uplift for an unreasonable failure to comply with the ACAS Code of Conduct on disciplinary procedures. The total uplift is 25%. Preparation Time Order

[74]The claimant has applied for preparation time order. That is an order that the paying party make a payment to the receiving party in respect of the receiving party’s preparation time while not legally represented. It is available in respect of time spent working on the case except for time spent at any final hearing: Rule 7(2) of the Employment Tribunal Rules of Procedure 2013.

[75]The particular trigger relied on by the claimant is that she argues that in a number of respects the respondent, or their representative, has acted: “vexatiously, abusively, disruptively or otherwise unreasonably in … the way that the proceedings (or part) have been conducted”.

[76]The claimant wrote indicating that she intended to make the application on 1 February 2024 and asked for more time to formulate it. The hours that she is claiming are in the schedule at RB page 58. It was apparent that there were a large number of alleged incidents connected with the litigation that the claimant relied on as amounting to unreasonable conduct and a fair opportunity needed to be given to the respondent to reply. Furthermore, at the remedy hearing, the respondent was represented by Mr Mawoko whereas Mr Munro had represented them at the liability stage. He himself had taken over conduct of the representation from a different fee-earner. We agreed to postpone consideration of the preparation time order to be done following written submission on the papers at least in part because it did not seem to us to be fair to the respondent that they did not have an opportunity for their representatives to search through the hearing file and their internal file of relevant documents and correspondence in order to respond to the particular allegations.

[77]As with an application for a costs order this is a three stage test:a. Is the threshold test in rule 76(1)(a) met?

b. Should we exercise our discretion in favour of making a preparation time order, and, if so

c. What is the number of hours in respect of which the preparation time order should be made.

[78]At the point of our deliberations on 20 March 2024 we had the benefit of written submissions from the claimant and also from the respondent. The claimant broke down the types of conduct into:a. alleged breaches of specific orders;

b. breaches of the obligation to disclose all relevant documents whether they assist the party’s case or not (which should more properly be described as a delay in complying with that obligation);

c. four attempts to strike out the claimant’s case which she describes as unwarranted and

d. miscellaneous other behaviour.

[79]The following chronology of the correspondence between the parties and the tribunal is culled from documents on the tribunal file and the correspondence between the claimant and the respondent’s representative which is found in a number of different locations in the three different hearing files: the liability bundle, the remedy bundle and the remedy supplementary bundle.

[80]On 20 February 2023 the respondent’s representatives informed the tribunal that the parties had agreed a variation of extension of time within which witness statements had to be exchanged until 28 March 2023. On 26 March 2023, two days before the extended deadline, the claimant emailed the respondent stating that for reasons to do with extreme poor health of a very close family friend she would not be available to check her emails the following day. That email does not explicitly ask for a further extension of time.

[81]The respondent’s representative replied the following day stating that he was not prepared to extend the exchange date beyond 28 March 2023 and if the claimant was not in a position to exchange statement he would have to apply to strike out the claim (RSB page 23). The claimant had explained (RSB page 22) that she was taking a family member to hospital for lung cancer surgery on 27 March. So far as we know, the respondent had no reason to doubt the truthfulness of that explanation.

[82]In her application she states that it had a great impact on her to read that email in the evening when she returned from hospital and that she immediately had to “jump online and start researching what a strike out was”.

[83]The following day, 28 March 2023, the claimant applied for an extension of time for witness statements on the basis that she was waiting for further documentation from the respondent which they had not yet disclosed and which she wished to reference in her statement. She made a lengthy and detailed application. On 3 April 2023 the respondent objected to the application for an extension of time and the disclosure application saying that all relevant documents had been provided and applied to strike out the claim on the basis of alleged non-compliance with the order for exchange witness statements and failure to actively pursue her claim.

[84]The claimant, on 14 April 2023, put in a 4-page defence to that application and on 18 April 2023 the respondent wrote indicating that they had found and disclosed one additional document. They repeated the strike out warning.

[85]On 27 April 2023, the claimant applied for an order for specific disclosure against the respondent referencing overlapping categories of documents to those referred to on 28 March. She specifically applied for payroll documentation and timesheets. She pointed out, accurately, that the respondent had stated in response to her holiday pay claim that they believed everything had been paid but would review their holiday documentation in the payroll records. It was therefore clear that the claimant was seeking documents relating to herself that were referred to in the respondent’s grounds of response. They were, on the face of it, both relevant and likely to be necessary.

[86]The respondent’s response on 3 May 2023 did not engage with the claimant’s application but stated that payslips and the P45 are in the bundle. The respondent’s representative repeated the argument that the claim should be struck out because they alleged the claimant was deliberately not complying with the requirement to exchange witness statements.

[87]The claimant’s payslips are in the bundle at pages 123 to 128 and the last in time (LB page 128) does not include a payment of holiday pay. Further correspondence from the claimant of 15 May 2023 states she had accrued 14 days, asserts that holiday pay was not included in payslips and repeats that payslips were not what she was looking for. The respondent, on 31 May 2023, merely repeats the statement that all relevant documents are in the bundle and that the claim should be struck out for non-compliance and failure actively to pursue.

[88]It is this exchange of correspondence that led to the 8 June 2023 order from Employment Judge Moore requiring the respondent to provide payroll records by 28 June 2023. Ultimately, the screen shot of payroll records for the claimant at LB page 147 was disclosed. It indicates that she had accrued 14 days’ pay. According to the claimant she attempted to contact the named person with conduct on behalf of the respondent 11 times about compliance with the order and on 5 July 2023, 13 days after the date on which compliance should have taken place, Mr Munro emailed to provide the payroll records. He did not, in that email, (RSB page 24) state that he now has conduct of the claim or advise the claimant that the named individual previously with conduct is presently unfit for work. Despite having the opportunity to do so, the respondent in responding to the present application has not engaged with the detail of the claimant’s complaint or set out anything to do with whether there were resource difficulties for them in this period.

[89]The claimant replied the following day thanking Mr Munro for compliance and asking for an explanation for the delay but none was immediately forthcoming. Eventually, Mr Munro explained in about the second week of August that the person who previously had conduct was on long-term sick leave.

[90]On 11 August the claimant wrote to remind Mr Munro that 14 August was the date for exchange of witness statements and she offered to exchange at 17.30 on that date. She was understatedly keen to have a simultaneous exchange and was working as a carer in dementia homes at that time with restrictive breaks during which she would have access to her emails to be able to send her witness statements.

[91]It would clearly have been courteous for the respondent’s representatives to have notified the claimant and the tribunal of the change of person with conduct of the proceedings as soon as it happened. However, there is no dispute that the original fee-earner was unwell. We do not know anything about when his illness started or at what point the firm, Peninsula, would have known that the condition was serious enough not to expect him to return to work within a reasonable period of time. That is a patently unsatisfactory state of affairs but there is some explanation for the delay.

[92]We recall that Mr Hine said that he thought that the payroll records were internal documents and did not understand why the claimant should be entitled to them. Not only were they obviously relevant but, as things turned out, the respondent did not put forward any defence to the holiday pay claim at the liability hearing in the light of their own internal records that she had accrued 14 days’ leave and the payslip records that indicated she had not been paid for them at the end of her employment.

[93]The delay in complying with Judge Moore’s order at only 13 days is not very long. While tribunal orders are expected to be adhered to, we are concerned with whether or not there has been unreasonable conduct of the proceedings, not whether there has been a more technical or marginal breach. However, in the context of the chronology that we have outlined above, delay in compliance called for an explanation and none was proffered even when sought. In their present submissions the respondent’s representative does not explain the context of this failure in any more detail than was given when Mr Munro took over as fee-earner.

[94]The background to Judge Moore’s order was that the claimant had set out perfectly rational reasons why she believed that the payroll records were in existence and were necessary for a fair determination of the hearing. Her suggestion that witness statements should be delayed in order to incorporate that evidence was sensible, given the likely importance to the holiday pay claim, and would not have jeopardised the hearing that was then listed for more than six months in the future. The respondents replied by accusing the claimant of failing actively to pursue her claim and making frequent applications for her claim to be struck out when not only did they have the relevant documents but those documents showed the claimant’s claim to be well founded. The suggestion that she was not actively pursuing the claim we think particularly hard to substantiate when one reads the detailed applications the claimant was making at that time.

[95]We set out this chronology of the correspondence in some detail because, in her application for a preparation time order, the claimant has relied on parts of the chronology of events as amounting to alleged unreasonable conduct for more than one reason. It seems to us it is possible to overstate the seriousness of the behaviour if it is broken down by the nature of the conduct rather than looking at the chronology of events as they unfolded.

[96]By August 2023, the claimant was getting ready for exchange on the 14 August, the date which had been stipulated by Judge Moore.

[97]On 11 August 2023, in response to the claimant’s long email at RSB page 26, Mr Munro apologised for the lack of contact, explained that his predecessor was likely to be on very long-term sick leave and said he needed to come up to speed with the matter but had conduct (claimant’s submissions page 10).This is a perfectly professional email which sought to manage the claimant’s expectations of time by stating that he needs to update the draft with the statements but should be in a position to give her information the following week about when they would be ready to exchange. Of course, an experienced litigation consultant should have sought agreement from the claimant for an extension of time and applied to the tribunal for one. However, Mr Munro did not do so and did not revert to the claimant as he said he would.

[98]On 23 August 2023 the claimant set out in an email the present state of litigation from her perspective. As we have said above, her work commitments meant that she could not send the emails at certain times of the day. She was unwilling to send the email to the respondent’s representative unilaterally at a time convenient to her except to effect a mutual exchange. Although the tribunal is aware that professional representatives frequently hold documents without reading them and without releasing them to their clients for a period of time to facilitate simultaneous exchange and although Mr Munro did seek to give this reassurance to the claimant, we understand that the claimant, who was representing herself, may not have felt able to trust this assurance. We can understand why she wanted to exchange in the way that she did. Conversely, the stance taken by the respondents is not unusual. The problem was that set against the background of the respondent’s previous antagonistic correspondence that we have outlined above, the trust between the parties appears to have been low. Our view is that each party’s stance as to how the mechanics of exchange could be effected was reasonable but the lack of coming together led to a delay in exchange at this stage.

[99]It is not clear to us exactly when the parties sent each other their witness statements; they may have sent their own witness statements to the tribunal before they sent them to each other. Eventually, on 19 October 2023, the six week check list was sent by the tribunal to the parties. The respondent replied on 30 October but by then the claimant had replied explaining some of the difficulties that had happened and the respondent’s check list crossed with a strike out warning letter send by the tribunal on 31 October 2023. The respondent sent in their objection to that on 1 November 2023. By the time of the full merits hearing, it was not necessary for us to make a decision on that warning. The claimant accepted that she was ready to go ahead by the time that the hearing started but stated that her preparation had been truncated, made more onerous and more stressful as a result of the challenges to agree a date for exchange of witness statements.

[100]There is one specific allegation of unreasonable conduct in the application in the miscellaneous category that we should make a comment on. At paragraph 7.5 the claimant complains that, by our judgment on 22 December 2023 the respondent was ordered to pay her 14 days’ holiday pay. It was only following the remedy hearing that a judgment was issued that include the financial sum and the date from which interest would run if payment were not made. It is that second judgment which is the enforceable judgment for the money sum. The question for us is whether the respondent’s failure to pay the claimant the holiday pay within a reasonable period of the judgment of 22 December is itself unreasonable conduct.

[101]As we have said, once the payroll document was scrutinised there was no defence of any substance put forward to the holiday pay claim apart from the argument that they had paid her ex gratia more than they had been required to by giving her more notice than they were required to. That in law is not a defence to a holiday pay claim. The background was that the respondent had been dragging their heels on disclosure, then did not make prompt realistic concessions and then failed to act proactively to make sure that he claimant was not out of pocket for longer than she needed to be. It seems that their request for bank account details to facilitate payment was made at the last minute before the remedy hearing. We do think that there is something unreasonable in this conduct given that, notwithstanding the lack of an judgment with a figure in it, it was perfectly clear how much the respondent should pay to the claimant.

[102]We do not think that this has had an impact on the time spent by the claimant in preparation and the respondent has not, in substance, breached an order or judgment but this episode gives us a poor impression of the seriousness with which the respondent is taking our rulings. That seems to us to be relevant to our exercise of discretion and relevant to the question on whether, on other occasions, the respondent has acted in order to avoid fulfilling their obligations until the last possible opportunity.

[103]We are of the view that the correspondence outlined in the chronology set out above was unreasonable conduct of the litigation. We do not set too high a bar for the tone of adversarial correspondence in litigation and remind ourselves that when parties are in dispute it is not unusual for points to be made robustly. That must be set against the overriding objective to avoid unnecessary formality, cost and delay and the parties’ duty to cooperate with each other to assist the tribunal to achieve those objectives. On occasions, the respondent threatened to apply to strike out the claim and urged the tribunal to warn the claimant of the risk of striking out the claim when there was no realistic prospect that the tribunal would make such an order. The claimant was not to know that, however – particularly when reading the email for the first time.

[104]We are not able to say whether this was the conduct of the respondent or of their representative or of both. On the one hand the respondent has, in relation to compliance with the order for disclosure, been dilatory in executing what was required of them and not consistent in the forbearance they expect of the claimant compared with the lack of forbearance they afford her. On the other hand, we do not accept the criticism the claimant makes in her section 8.1 about the respondent initially not proffering Mr Christopher Cripps as witness. There is no positive obligation on a party to put forward a witness who may harm your case and that contrasts with the obligation to disclosure all the relevant document whether they support your case or support that of the other side. There is no property in a witness. The claimant would have been at liberty to contact Mr Christopher Cripps and ask him to come to give evidence herself.

[105]A six week time delay in informing the claimant that documents she sought had been destroyed at the relevant time is regrettable but it is not unreasonable conduct of the proceedings. It is an illustration of the inconsistent expectations in that the respondent was not as cooperative and responsive to the claimant as they appeared to expect her to be.

[106]Section 8.2 of the application is an example of the claimant repeating the same conduct under a different type of complaint. The criticism is valid but repeated. The respondent’s representative does repeatedly say that the claimant has had everything she is entitled to when she had not. Not only did they subsequently disclosure the payroll records which established her holiday pay claim, but they had found an additional unrelated document.

[107]The claimant complains about the arrangements for inserting photographs of relevant parts of the shop in the hearing file. We find that, certain photographs were disclosed on Monday or Tuesday before the hearing was due to start the following Monday. The claimant responded (RSB page 29 to 31) on Tuesday 31 October 2023 asking for specific photographs to be taken and naming three views that she argued were relevant. At the liability hearing, Mr Munro said that her request had been made on Thursday before the hearing was due to start and it was too late to action. We can see from the documentation it was in fact made on Tuesday and only the day after the photographs had been sent to her. The respondent did not make reasonable attempts to accommodate the claimant’s request; this was unreasonable but caused little additional work. However, we accept that it caused uncertainty and unnecessary aggravation to the claimant when she was preparing for the final hearing. Ultimately, she was able to establish the relevant points from the photographs available but it is clear that the respondent could and should have cooperated with the claimant in relation to this.

[108]The matters the claimant outlines in section 8.4 of her application are more at the level of normal preparation infelicities when compared with the other interparties correspondence we have looked at.

[109]In section 9 the claimant reverts to the chronology and threats to strike out the claimant’s case. The same conduct is relied on and the passage in section 9 does not set out anything new but explains why it felt like it put pressure upon the claimant. The email of 27 March 2023 at RSB page 23 was when the respondent, through their representative, refused consent to an extension of time for witness statements and informed the claimant that they would apply to strike out the claim if she did not exchange witness statements the following day. We accept that this was an attempt to put pressure on the claimant at a time when she was vulnerable and known by the respondent’s representatives to be vulnerable.

[110]Although this really repeats the criticism we have already made of the exchange from March through to June 2023 we find that exchange to be unreasonable conduct of the litigation for the following reasons:a. The respondent, through their representatives, seemed to be trying to put the claimant under pressure when she explained personal circumstances which meant she was unavailable.

b. The threats included that they would apply for strike out and unless orders when there was no reasonable basis for such an application because the claimant’s application for an extension of time for the witness statements made about seven months before the hearing, was done on the reasonable basis that she wished them to be able to cover missing documents as well as personal circumstances. It is hard to reach any other conclusion than that an experienced litigator must have known the tribunal was highly unlikely to strike out the claim in those circumstances and therefore that such threats were probably intended to put the claimant under pressure (hence our conclusion at para.110.a. above).

c. Ultimately, despite resisting the disclosure application, it resulted in the respondent disclosing a document that demonstrated that the claimant’s claim for holiday pay was correct.

d. There are therefore two unreasonable aspects to this exchange in that the respondent did not engage with the application for disclosure but sought instead to make the fact of the application and the claimant’s application for an extension of time the basis for a spurious strike out application.

e. This goes beyond the normal level of disagreement that one might expect in robust exchanges between opposing parties and beyond threatening (and making) applications which are somewhat speculative. The threatened applications for strike out had no real forensic justification. It is particularly ludicrous to say that the claimant was not pursuing the claim as the respondent’s representative did on 3 April 2023.

f. It is against that background that the failure to comply promptly with the order for disclosure required an explanation that was not forthcoming although the delay was relatively modest at only 13 days.

[111]The other matters that the claimant refers to in section 10 do not add to the unreasonable conduct which we consider it to be just to take into account when considering the making of the preparation time order.

[112]As to section 10(b), Mr Hine gave evidence as he recollected it but we found that he was mistaken. There were a number of points where the respondent’s witnesses did not agree with each other and where one or more witness’s oral evidence did not match contemporaneous documents. As a result, some of their evidence was found not to be reliable. But we do not find this to have been a concerted attempt to mislead the tribunal or unreasonable conduct of the proceedings. Similarly, when Mr Hine repeated his account of what the claimant was alleged to have said on 23 February 2021 (which account we have rejected), is not uncommon for persons to hold to their previous beliefs. That does not necessarily suggest a lack of respect of the tribunal’s judgment or an inability to accept it. We find the dragging of heels in the preparation of the case and a failure to progress the claim in accordance with normal professional standards to be more disrespectful and potentially more disruptive to a fair process.

[113]We can understand why the claimant is bruised by the consequences of the respondent’s evidence being, to her mind, an accusation that she is lying. It is frequently the case in litigation that a party’s evidence amounts to an accusation that the other side is untruthful. We do not think in the present case, without more, that this is sufficient to amount to unreasonable conduct of the proceedings. It is, in effect, the respondent defending themselves.

[114]Where the claimant in section 10(d) states that Mr Hine accused her in the remedy hearing of telling untruths this appears to be a reference to the examination in chief of Mr Hine about the reasons why he did not investigate her grievance letter at LB page 118 where he stated that, “So far as we were concerned this was untrue”.

[115]A preparation time order is not intended to be punitive. Part of the reason that we decided there was an unreasonable failure to comply with the grievance was because they did not engage with whether or not the claimant’s complaints were true. The ACAS uplift reflects our view of the respondent’s conduct here. It is not separate unreasonable conduct which should increase the amount of a preparation time order.

[116]Based on the above, we consider that there has been unreasonable conduct of the litigation. We have decided to exercise our discretion in favour of making a preparation time order for the following reasons:a. There was a failure on the part of the respondent to engage with the disclosure application and that delayed production of the document which ultimately showed that the claimant’s holiday pay claim was made out as the respondent accepted at the hearing when they raised no defence to it. They had not put forward any properly arguable defence.

b. There were four or five applications or warnings of strike out or requests for strike out warning letters in the period March to June 2023 for which there was no forensic justification. We conclude this must have been intended to put pressure on the claimant within the litigation. No explanation has been put forward for that.

c. There is an element of a lack of respect for the tribunal authority in the inconsistent approach on the part of the respondent to what they expect of the claimant and what they deliver when they are ordered to provide documents.

d. We consider that the failure to make attempts late in the day to get the photographs the claimant wants supports our conclusion that the respondent’s attitude was one of non-cooperation.

e. We also take into account that there was no contact towards the claimant at all from June to August 2023 bar one email on 5 July 2023. We postponed consideration of the preparation time application to enable the respondent to have the opportunity to put forward any explanation, given the circumstances of Mr Munro’s takeover of conduct from a colleague who was on long-term sick leave. Nothing relevant has been forthcoming. The respondent has not explained why there was the absence of contact that the claimant found so unsettling at that point where she was involved in preparation for witness statements and just coming out of an extremely antagonistic period of correspondence. We accept that this meant that she had to spend more time than would have been normally expected to look up the procedure and to worry about what she needed to do next. 77 The extra work that she carried out is clearly identifiable by looking at the 4-page application for an extension of time for the preparation of witness statements and disclosure in March 2023 and the 4-page defence to the strike out application. We also accept that she was probably caused additional effort in sending chasing emails and general coping with uncertainty and stress when she should have been able to concentrate on preparation of her witness statement for the final hearing.

[117]At RB page 58 the claimant sets out the hours that she has spent preparing for the hearing. Overall they seem to us to be a reasonable estimates of the amount of preparation time that was involved, if anything, possibly an underestimate. However, it is clear that this is the time spent preparing the claim as a whole. We think it right to seek to identify what additional work is associated with the unreasonable conduct that we have found on the part of the respondent or their representatives.

[118]In the final five lines of page 58 the claimant identifies 16 hours of work as having been associated with responding to the unreasonable conduct. We accept that that work was caused by the respondent’s unreasonable conduct. The hourly rate for a preparation time order as at 1 May 2023 is £43. The applicable hourly rate for the previous year was £42. Doing the best we can based on the quantity of correspondence and the chronology set out above, we think approximately 5 hours would have been incurred prior to 1 May 2023 and should be reimbursed at £43 an hour, making £210. 11 hours should be reimbursed at £43 an hour on the basis that it was time spent after 1 May 2023. That makes £473. The total preparation time order will be of £683.