Mr B Aken v Cambridge Care Company Ltd: 3314550/2019
JUDGMENT
The respondent’s response served on 27th September 2019 stands as its response in these proceedings and the hearing listed for 1 April 2020 will proceed.REASONS
Procedure
[1]This was a preliminary hearing to determine whether or not the respondent’s response should be accepted having been submitted out of time.[2]On 8 May 2019 the claimant submitted a claim form electronically claiming unfair dismissal. He claims he was employed by the respondent as a support worker/carer from April 2010 until 1 February 2019 when he was summarily dismissed. During that time, it is common ground that for a period the claimant had a personal relationship with the respondent’s owner, Ms Penny Overy, and he asserts that during that period he acquired a 49% share in the company.[3]The claim form was issued on 1 July 2019 and the address given on the claim form was 6-7 Kings Court. In fact, the respondent had moved from 6-7 Kings Court to 4 Kings Court on 30 September 2017, although the details on its website had not been updated.[4]On 22 August 2019 Judge Warren of the Employment Tribunals directed of his own volition that the claim should be resent to the respondent at its registered office, 53 High Street, Cheveley which is the address of its accountant because “service at the address provided by the claimant is unlikely to come to the attention of the respondent”. Sometime between 22 August and 6 September 2019 the claim form was served on that address.[5]Shortly before 24 September 2019 Miss Overy was informed by the occupants of 6-7 Kings Court they had received post for her. She collected that post on 24 September 2019, discovered the claim form and telephoned Messers Allen and Overy in London who suggested that instead she contact Keystone Law, which she did.[6]A response on behalf of the respondent was submitted to the tribunal on 27 September 2019.[7]Ms Rezaie for the respondent submits that the response was not submitted out of time because the claim form was not validly served on the respondent until it was sent to its registered office sometime between 22 August and 6 September 2019. In this respect under the Civil Procedure Rules 1998 (as amended) service of a company must be at its principle office or any place of business which has a real connection with the claim.[8]I accept this submission and find that 6-7 Kings Court satisfied neither of those criteria, although it was the company’s previous place of business it was not at the time that the claim form was issued. Since the claim was not validly served until sometime between 22 August and 6 September 2019, I find, on the balance of probabilities, that the respondent’s response served on 27 September 2019 was actually in time.[9]In any event, I would have exercised my discretion in the respondent’s favour to accept late service of the response.[10]Ms Carpenter for the claimant submitted that Ms Overy had wilfully ignored the existence of the proceedings until 24 September 2019 and only took action once she became aware that the first hearing, which had been listed for 24 September 2019, had been postponed and she anticipated that judgment would be entered against her.[11]Having heard evidence from Ms Overy I do not accept this submission. I accept her evidence that she was not aware of the proceedings until she collected the mail from 6-7 Kings Court on 24 September 2019 and further that she acted as quickly as she could have done thereafter.[12]The claimant relies on the alleged lack of merits of the defence and has put in evidence bank statements between 2016 and 2018 showing some payments to him from the respondent identified as wages.[13]The respondent says these payments were not referable to the claimant’s employment status but to other personal matters.[14]This factual dispute is not something that I am able to assess at this preliminary stage and I am not prepared to assume there is no basis to the respondent’s defence.[15]As regards issues of prejudice, the delay is not substantial and Ms Carpenter has not identified any prejudice that the claimant has suffered by reason of that delay. By contrast, if the respondent is not permitted to defend the claim Ms Overy will obviously incur substantial prejudice.[16]Accordingly, the respondent’s response will stand as its response to these proceedings and the hearing listed for 1 April 2020 will proceed.[1]These reasons should be read in conjunction with the case management orders made by the tribunal as follows:1.1 Judge Moore on 9 January 2020;1.2 Judge Postle on 1 April 2020;1.3 The present Judge, 4 September 2020;1.4 The present Judge, 3 December 2020; and1.5 The present Judge, 12 January 2021.[2]As appears from my own three previous orders, this case was adjourned, part-heard due to insufficient time and incomplete disclosure on 4 September 2020; adjourned on 3 December 2020 due to the late instruction of Mr Clement; and adjourned again in January 2021, due to unforeseen personal circumstances arising out of the COVID pandemic.[3]In September 2020, the tribunal had a trial bundle of about 430 pages. The additional disclosure which I had directed in September 2020 produced a supplementary bundle of 243 pages, along with some loose additional items.[4]The claimant was, in September 2020, the only witness from whom there was time to hear. He completed his evidence on the morning of 16 April and then called Ms Nicola Mellor, a former colleague.[5]The respondent called Ms Dawn Robinson and Ms Jasmine Baker, both employed by the respondent in responsibilities which included co-ordination and management. Its main witness was Ms Stapleton. It also called the evidence of Mr Steve Harman. The evidence of the three lesser witnesses was that they had never worked with the claimant or met him.[6]There were concise closing submissions from both counsel, and I reserved judgment from the afternoon of 19 April to the following morning.[7]On the final day of hearing, I gave judgment at 12 noon and then adjourned to enable counsel to take instructions. At the resumed hearing both parties applied for written reasons. I had invited observations from the parties on the application of Rule 50. I had told them that M would be anonymised and it seemed right, given the intimate information in the bundles, to offer both parties the opportunity for submissions on the application of rule 50. No application was made.[8]A case management timetable was set which has been sent separately. Finally, the proposal for judicial mediation, to be conducted by a judge other than the present judge, remains open to the parties in principle as a means of assisting in resolution of this dispute. General approach[9]Before I give findings of fact, I set out a number of general comments and general observations. Relevance[10]The question before me was whether the claimant was, at any material time, an employee of the respondent company. The respondent company was founded and is wholly owned by Ms Stapleton. For a period of about nine years, she and the claimant were in a personal relationship. The claimant’s employment with the respondent ended at the same time as the personal relationship. The evidence referred to a wide range of issues. Where I make no finding about something on which I heard evidence, or where I do make a finding, but do not do so to the depth to which the parties spoke, that should not be seen as oversight or omission. It reflects an assessment of the extent to which the point truly assisted the tribunal.[11]That observation applies in many cases. It was of particular materiality in this case, where the boundaries between an economic relationship and a personal relationship were blurred to the point of invisibility, and where negative emotion on both sides remained raw.[12]My responsibility in this case is to confine my adjudication to that which is relevant to the economic relationship only. Where the parties have made allegations against each other which arise out of their personal relationship, it is the task of the tribunal to make only such findings as are relevant or necessary. In this, as in any other case, it is the tribunal’s task to judge cases, not people. The tribunal does not offer a moral judgment on personal allegations. Binarism[13]Both parties brought to the case a binary approach. I mean by this an approach in which each side asks the tribunal to find that it is wholly in the right and the other entirely in the wrong. In some cases, of which this was one, that extends to inviting the tribunal to find that it is right on every disputed point of detail, no matter how minor. That binary approach is rarely helpful, because it rarely reflects the evidence of human behaviour or work place behaviour. I have not followed it in this case.[14]The binary approach may also involve inviting the tribunal to apply artificial categories to the case before it. Issues arose in this case as to whether the claimant was from time to time supporting Ms Stapleton as her boyfriend or the respondent company as an employee. A similar issue arose in relation to the claimant’s relationship with an individual service user. I am not convinced of the value of the categorisation and I have not adopted it. Realism[15]I have sought to approach my judgment with realism. Realism involves some understanding of how people behave at work. Nobody at works uses everyday language with the expectation that their words will be dissected in the artificial setting of a tribunal years later. Everyone who goes to work makes mistakes, or may make a decision which later in the context of litigation appears to have been a misjudgement. Much of the technique of managing disputes on these issues is artificial, and/or the product of hindsight.[16]In that context, the supplemental bundle (of text traffic between the claimant and Ms Stapleton during the last year of their relationship) was to be approached with caution. Its contents were plainly discoverable. Much of it was intimate and much of it was painful to read. It was of limited assistance.[17]Realism also involves recognising that the tribunal process applies its own stresses and pressures. Although Ms Stapleton on occasion mentioned having been a litigant in person, the tribunal file shows that she was a litigant in person for the limited period 21 August 2020 to 1 December 2020. I accept that members of the public, represented or not, struggle to understand the balance which the tribunal seeks to achieve between structure and discipline on one hand, and informality on the other. Privacy[18]This was a public hearing by CVP. There was considerable reference to one named service user of the respondent, who I was told is a gentleman with learning difficulties. It seemed to me that the evidence engaged his privacy rights, and although his real name was used at the public hearing, I identify him here as M.[19]I record that on the penultimate day of hearing, a member of the public observed on CVP but without using his or her camera or audio. I explained to that person that while I prefer the public to join by camera or audio, I appear to have no power to require them to do so, nor do I have power to exclude the public from a public hearing. I therefore explained to him or her personally in the public session that the tribunal is tasked with respecting the privacy rights of M, and explained the privacy order which I made relating to M. I asked him or her to indicate their understanding, which the member of the public did by messaging back in the chat box. This procedure cannot be regarded as satisfactory: if the tribunal were proceeding in person in public, it would not be acceptable to have a wholly unidentifiable member of the public present, and the expectation would be that he or she would answer a straightforward question by speaking. Disclosure[20]It was clear to me on 4 September 2020 that there was a failure of disclosure on both sides. While there had been further disclosure since then in response to my order, I accept that this case proceeded without full disclosure having been given, notably by the respondent. The respondent, as a large business in a highly regulated environment, is more likely to have systems and records which might have proved material. The respondent for example operates a conventional model of allocating available staff to cover the shifts required by the relevant service user. The bundle contained records relating to M, of which I note at the head of page 388, the omission of at least 340 days of records between September 2017 and September 2018. I therefore cannot accept that the printed rotas in the bundle are complete or fully accurate. However, my task has been to decide the case on the basis of the material before me. Other[21]Making every allowance for the artificiality of the process and the above points, it is difficult to understand how two previous Judges were told that this was a one-day case; or that on 1 April 2020 the tribunal was told by professional representatives that it was fully prepared; or that both sides took part in the September hearing without the text bundle having been made available to the tribunal.[22]Each party said in evidence, and/or submission, that he or she had, during their relationship, been “controlled” by the other. I accept that that word may be the product of support which each party has received following their break up. I do not approach the possibility of control from the therapeutic perspective but as a submission about economic power, similar to that in the recent case law on the gig economy.[23]In closing submissions Ms Rokad referred to credibility. I am wary of the term and concept. It is an artificial one, and it runs the risk of a binary approach. I find that after the pain of their break up, and partly driven by the process of this dispute, both the claimant and Ms Stapleton have reflected on their history together, and interpreted the events of their relationship in ways which at times were wishful thinking, but at times represent an attempt to re-write a painful personal history. I do not find that either has lied to the tribunal or attempted to mislead the tribunal when I say that I approach the evidence of both with scepticism, particularly when it touched more on their personal relationship. Findings of fact Setting the sceneFindings of fact
[24]The respondent is a company founded by Ms Stapleton. At the time of this hearing, she was the sole shareholder. Companies House records appear to demonstrate that for about two years, 2016 – 2018 the claimant was 49% shareholder and a director. Ms Stapleton disputes the reliability of those records, which I understand may be the subject of separate proceedings in the Civil Courts in due course. I have proceeded on the basis that I need make no decision on whether the claimant was at any time a director or shareholder of the respondent, or about any right which may accrue to him as a result. In the plain everyday language of an ET: Ms Stapleton was the boss and always had been, it was her business, and she was in charge.[25]The respondent provides care to vulnerable adults living in their own homes. The nature of the support depends on the needs of the individual, and individual needs may change at any time. It works largely, if not exclusively, through the public sector, and therefore under contract (awarded after a tender process) with Local Authorities. It operates in East Anglia. The business operates in the public eye in the sense of public criticism or accountability in the event of a mishap, and the sector may well prove competitive. The respondent is, of course, accountable to the adults and their families to whom it provides care and support.[26]The respondent is subject to multiple layers of regulation. It must, as a company, comply with Companies House reporting requirements, and must provide fully audited accounts. Its operations are subject to inspection by the CQC. When it provides services to a Local Authority, it must comply with the requirements of the contractual obligations imposed by the authority. When it employs staff, the staff must be able to demonstrate appropriate levels of competence and training. Staff must be externally approved through the DBS procedures.[27]I accept without hesitation that this is a demanding stressful sector within which to operate. I do not dispute Ms Stapleton’s self-description as a workaholic. The respondent has achieved growth to over 100 employees, providing service for up to around 300 service users. The establishment, creation and growth of the business represent a significant achievement of those who work in it, and notably of Ms Stapleton. The claimant[28]The claimant, who was born in 1981, began working for the respondent as a support worker in March 2010. The date originates from his pay records. The dispute about how he came to apply to the respondent and how he was recruited did not seem to me material. It was common ground that before starting, he must have undergone minimum compulsory training, and obtained DBS clearance. No paper records of any of that process existed. It was common ground that the claimant’s training and DBS clearance had not been updated after his recruitment. It was not clear that updating DBS is a requirement either of DBS itself or the respondent. I accept that in principle a support worker is required to keep his training up-to-date, and that since 2010 neither side had done so for the claimant.[29]In about the late summer of 2010, and certainly by September, the claimant and Ms Stapleton became a couple, and began living together. Although the parties differed on the detail, I understood both to agree broadly that when Ms Stapleton and the claimant became a couple and moved in together, the claimant ceased to be employed as a support worker.[30]In 2014, the couple relocated to a new, bigger house, where they were living until they broke up in February 2019. The new property was bought in Ms Stapleton’s sole name. I heard considerable evidence from Ms Stapleton, and in the text traffic, about the tensions which had arisen between the couple by early 2018, and probably before. It does not seem to me necessary to set out any details in this judgment (which will appear in full on the tribunal website). The payment records[31]Many of the respondent’s support workers had variable earnings. Earnings might vary according to shifts or availability of overtime, or operational needs. Ms Stapleton described a conventional pattern of workers submitting returns of hours worked, which were checked, converted into earnings, checked again, and then converted into an instruction to a payroll provider to make the payments. Ms Stapleton explained that the payroll at times reached £130,000 per month.[32]The main bundle contained pay records for the claimant, which I accept to be accurate. They show that from March 2010 until the end of August 2010, the claimant was on variable pay, consistent with the system set out above. From September 2010 until February 2013, the records show that he was paid £1,600 per month, in two equal shares by cheque, two weeks apart. From March 2013 until February 2019, he was paid £1,733.33 per month by single payments. All figures are quoted gross.[33]The bundle contained HMRC records, which confirmed that all of these payments were paid net, and statutory deductions were properly accounted for.[34]The respondent appreciated that this history of payment would be seen as strong evidence of the existence of an employment relationship. It replied with two strands of evidence, to which I now turn. The pressure strand[35]In its first strand, the respondent stated that Ms Stapleton had felt “pressured” by the claimant, as a result of which the claimant had been paid. In the witness statement prepared for the September 2020 hearing, Ms Stapleton wrote that she “cannot understand” how she came to make the payments and continue them. In her oral evidence at this hearing, the words she used to describe her thoughts about the payments fell into two categories. In the category of emotional hindsight, she described herself as embarrassed, ashamed and foolish. In a separate category, she attributed making the payments to having been manipulated, blackmailed and incredibly frightened.[36]I do not ask whether the employment and financial arrangements offered to the claimant were prudent. I ask rather whether it has been shown by the respondent that Ms Stapleton’s exercise of free will in the economic sector has been overborne by domestic coercion, as if her case were of duress, and / or whether it has been shown that at any material time she was incapable of decision making, analogous with lack of capacity.[37]These are high hurdles to meet, and I note the presumption in favour of capacity. The evidence required to discharge the burden of proving either of these possibilities would, in my judgment, need to be cogent, contemporaneous evidence, preferably from an independent source. A specialist assessment by an independent professional (eg doctor, psychologist, social worker police, Judge) might be the ideal; the evidence of close colleagues, friends or family members might assist. There was no evidence to either effect from any source.[38]On the contrary, during the period 2010 to 2019, Ms Stapleton was the active leader in running and growing the respondent business. She had access to and dealt with regulators, commissioners of services and independent professionals, including doctors, accountants and lawyers among others. She decided to buy a substantial property and take on a mortgage. There was no evidence that her capacity for independent decision making was in any way impaired.[39]The decision to employ and pay the claimant was in in the first instance a decision taken in the autumn of 2010. It was modified in spring 2013, when the claimant received a modest pay rise. Until February 2013, payments to the claimant were made by two cheques a month, which may have required human signature. I accept that thereafter they were automated, but equally, I accept that they were made each month as separate transactions and therefore capable of being interrupted month by month.[40]I note that from about April 2016, the claimant’s bank statements show that he paid Ms Stapleton the sum of £350 per month by direct debit. There was not even an agreement on what this sum of money represented; Mr Aken said that it represented a contribution towards the mortgage and house expenses, Ms Stapleton said it represented repayment of a loan to buy a campervan. I need not resolve this dispute. I take the fact that the claimant made regular monthly payments to Ms Stapleton as an indication that they remained, at least in part, financially distinct and independent, and that both were capable at that time of rational financial engagement with each other.[41]Drawing all of the above together I find that there is no evidence whatsoever that the respondent’s decision to employ and pay the claimant was in any way impaired by any form of coercion, pressure or other factor which might lead me to conclude that the decisions to recruit, retain and employ the claimant were not truly those of Ms Stapleton on behalf of the respondent, or should be disregarded or deemed void. The work strand[42]That part of the response fails, which therefore takes me to the second issue before the tribunal at this stage, which was a stark one. Ms Stapleton said that the claimant quite simply did no work after the summer of 2010. The claimant’s case was that after he became the claimant’s partner (in the personal sense) he ceased to be a support worker, and was employed in another capacity.[43]I understood the respondent’s case to be that the claimant gave no consideration for payment, or alternatively was under no reciprocal obligation in consequence of payment, such as not to be an employee. Another approach to the same question is to ask what was the agreement of the parties which I find constituted a contract between them.[44]As stated, the claimant started as a support worker in spring 2010. I accept Ms Stapleton’s evidence, which was that while it was not her individual responsibility to do so, the respondent must have issue a new starter pack to the claimant at some time in spring 2010. The bundle contained a staff handbook, which was clearly the product of professional advice. I was told that in accordance with GDPR obligations, the respondent destroyed individual HR records after six years. I accept that by the time Ms Stapleton and the claimant separated, any records of the claimant’s start of employment no longer existed.[45]I find that there came a point by September 2010 when the claimant ceased to be in the primary role of support worker. I accept that from then until February 2019 he worked to a different model. I have considered whether the staff handbook, or its predecessor, applied to him from then on and I find that it did not. I say so for two reasons. One was a matter of practicality. The claimant was the partner of the sole proprietor of the business. Great portions of the staff handbook were therefore inapplicable. There could for example be no realistic prospect of a grievance or disciplinary procedure involving the claimant. I attach weight to a remark made by the claimant during evidence, which was that “the rules didn’t apply” to him and Ms Stapleton. The claimant there captured human truth often seen in family businesses: family members cannot be managed, and are not managed, in the same way as other employees.[46]From September 2010 onwards. I find that the claimant had no formal job title and no job description. His only line of report or communication to the respondent was through Ms Stapleton. He therefore had little or no interaction with the office or managerial staff, and he did not have a company e-mail account. The evidence of office based staff and managers, to the effect that they had not seen the claimant and did not know him, therefore, did not assist me.[47]He remained subject to inescapable external regulatory requirements. This is perhaps no more than a statement of the obvious: if he drove on behalf of the respondent, he had to have a valid driving licence, but if he were asked to fit a gas boiler, he had to refuse. If he worked with a service user, he remained subject to DBS and training requirements, and his work might be assessed by the CQC.[48]The claimant had no set hours, or set days. He could be asked to work for an unlimited number of hours per day, and he could be asked to work on seven days per week, or neither. His pay bore no relationship to the time which he worked.[49]I accept that the claimant was not trained after 2010, and Ms Baker’s evidence was that he was removed from the Lotus rota system from 2011 electronically. I accept that as the rotas were liable to inspection by external regulators, the name of the claimant could not appear on them.[50]In evidence, the claimant described himself and his role in a number of ways, one of which was that he was Ms Stapleton’s ‘dogsbody.’ I find that there is an element of truth in that, but the word does the claimant an injustice. It implies two different things; one that the individual has an unrestricted range of potential tasks, which I accept was true of the claimant. The second is that the word implies low status, undertaking only degrading or humiliating tasks. I do not accept that that was true of the claimant. On the contrary, he was the boss’s partner, which is an ambiguous position, but not of low status. He was, in my judgment, rather a general factotum, a word which captures the diversity of his potential duties, without implying that they are menial or humiliating.[51]I accept also the general proposition of the claimant’s evidence, when he said that the were no occasions when he had been asked to carry out a responsibility and had refused to do it.[52]My finding is that the agreement of the parties in about September 2010, was that in return for a fixed salary, the claimant would carry out such tasks for the respondent as Ms Stapleton asked him to do. I find that this was continuous employment with the support worker role which the claimant had undertaken since March 2010.[53]This work pattern is not unusual in a family business, and the model of the family business appears to me as most apposite in these circumstances. The reality in this case was that the claimant had a job because of his relationship with Ms Stapleton. His role was to carry out whatever tasks she approved or asked. Any management or reporting line ran to her and no one else. The employment relationship ran in parallel with the personal relationship, and, as proved to be the case, could not survive its termination. (The reverse might not have been the case).[54]Within that model, the final question is that of what the claimant actually did pursuant to the model. The difficulty caused by this question cannot be overstated. As said, there were almost no written records; but that too is not unusual in a family business model. The claimant asserted that much of his paperwork had been thrown away or destroyed by Ms Stapleton after he moved out of their home, which was why there was little or no record of his work for the respondent. Ms Stapleton denied it, and I have no means of resolving that disagreement. Ms Stapleton’s evidence was that the paucity of paperwork reflected the fact that the claimant in fact had done no work. I am sceptical of that point in the context of a family business setting, and in light of my observations above about incomplete disclosure.[55]The text traffic in the 12 months before 1 February 2019 was less helpful than it might have been. Mr Clement pointed out the recurrent use by Ms Stapleton of phrases such as “the claimant should get a job”, or “the claimant should go to work”. I agree that one of many emotions expressed in the texts was Ms Stapleton’s resentment at perceiving herself to be the sole breadwinner in the couple. Mr Clement’s related point, which was that there was no instance of Mr Aken replying by stating that he did have a job, working for the respondent, seemed to me less well made. Taking the texts as a whole, it seemed to me that the claimant had adopted means of negotiating Ms Stapleton’s reproaches, and that arguing that point was not one of them.[56]The text traffic contained other puzzling points of detail. When giving judgment, I pointed out at least one reference in the bundle which starkly contradicted Ms Stapleton’s oral evidence (in one text she described herself as the claimant’s fiancée, although in oral evidence she denied that they had been engaged). I also note that there was little in a year of texts which referred to tasks done by the claimant, and I noted traffic about a Local Authority tender which was solely around the demands which the task and its deadline made on Ms Stapleton. Contrary to the claimant’s assertion that he was involved in tender preparation, the text dialogue did not include any suggestion from him that he could help with the task, or any request from Ms Stapleton that he might do so.[57]I find that from time to time, over the period 2010 to 2019, and as requested by Ms Stapleton, the claimant undertook a number of tasks for the respondent. I will mainly deal with them generically, because there was almost no evidence of specifics. I find that on these occasions, neither the claimant nor Ms Stapleton asked or answered the question which arose at this hearing, as to whether the claimant was carrying out a task as an employee of the respondent, or as his partner’s boyfriend. That was an artificial distinction, which arose in the context of this litigation. It was not in the mind of either party at the times in question. I accept also that there were periods when the claimant was not tasked with carrying out any work for the respondent.[58]By far the most frequent task was support of M. The respondent provided support to M in accordance with its Local Authority contract. Over a period of years, the claimant and Ms Stapleton had formed an affectionate relationship with M such that M came to their home, and they regarded him as one of the family. They hosted him at Christmas and at M’s birthday. I accept that it was necessary for M to have a rota (incomplete in the bundle), showing an assigned support worker for each shift. It was common ground that in the extract in the bundle Ms Stapleton’s name appeared as support worker, but the claimant’s name did not.[59]My finding is that the claimant provided support to M on occasion on Ms Stapleton’s request. This included support at weekends and at the couple’s home. I attach no weight to the absence of the claimant’s name from the rota. I accept that the claimant gave support at times when Ms Stapleton appeared as the assigned support worker.[60]Secondly, I accept that the claimant was available to help the respondent with emergencies and contingencies, and that he did so. As Ms Stapleton was sole proprietor of the respondent, there was in theory no limit to the possible variety of these events. There was evidence in the bundle of two events in 2018, one involving M, and one involving a lady who had had a fall. I accept that on both occasions, the claimant was asked to provide help of some kind, depending on the circumstances. It could be no more than telephone help and offer of support or guidance; or it could be driving to the scene of the emergency to help staff who were on site.[61]These were two specific examples. I accept that in both cases, the claimant provided support through and to Ms Stapleton, who was the primary point of contact. I find that there may well have been other such situations, although I was not told of any other specific.[62]It was common ground that there had been a period in about 2011 when Ms Stapleton was banned from driving. I accept that the claimant drove her when she was unable to do so. I do not accept Ms Stapleton’s evidence, which was that her mother, who lived nearby, was the only replacement driver available. That would simply make no sense in the situation where the claimant, able to drive, was available at Ms Stapleton’s home.[63]I accept that the claimant assisted with practicalities. There were occasions when the respondent changed office premises. I accept that there were essential but undemanding tasks which preceded and followed, in which he was involved. I accept that this included straightforward removal work, but also planning and follow up.[64]I accept that when Ms Stapleton moved home in 2014, the claimant played some part in helping with adaptations so that the home could also be used as working space; and was involved in gardening and in animal care, which were tasks which were both necessary to Ms Stapleton in her new home but also formed part of the setting for the home to be usable by service users in the event of visiting. This finding illustrates both the difficulty and the artificiality of the parties’ approach to this case. The house was to be the couple’s home, and have some use as a space for work. The claimant’s contribution was given to both the claimant as the house-owner; to his partner, to help create the space where they would live together; and to the respondent, so that work could also be done there.[65]I accept that there was a range of more demanding responsibilities undertaken primarily by Ms Stapleton, but for which the claimant undertook essential background points such as online research, assisting with paperwork. I do not accept the claimant’s assertion that these tasks represented a role which was either in business development or management.Conclusion
[66]I find that in the circumstances which I have described and in the manner in which I have described, the claimant was part of the respondent’s workforce, performing such duties as he was asked by Ms Stapleton to perform from time to time. That decision has not been changed by my conclusion that the obligations which led him to do so, were more than just the contractual quid pro quo for pay, but arose in part out of his emotional and personal relationship with Ms Stapleton.The law
[67]Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so,increase any award it makes to the employee by no more than 25%. Page 12 of 22[68]So, a failure to complain with the Code has to be an unreasonable failure for this provision to have effect.[69]In Phoenix House Limited v Stockman [2016] IRLR 848 it was stated:21. In my judgment, clear words in the Code are required to give effect to that sanction, otherwise an employer may well be at risk of what is in reality a punitive element of a basic and compensatory award in circumstances in which he has not been clearly forewarned by Parliament and by ACAS that that would be the effect of failing to heed the Code. The Code does not in terms apply to dismissals for some other substantial reason. Certain of its provisions, such as for example investigation, may not be of full effect in any event in such a dismissal. What is required when a dismissal on that ground is in contemplation is that the employer should fairly consider whether or not the relationship has deteriorated to such an extent that the employee holding the position that she does cannot be reincorporated into the workforce without unacceptable disruption. That is likely to involve, as here, a careful exploration by the decision maker, in this case Ms Zacharias, of the employee’s state of mind and future intentions judged against the background of what has happened. Of course, it would be unfair, as it was found to be here to a marginal extent by the Tribunal, to take into account matters that were not fully vented between decision maker and employee at the time that the decision was to be made. Ordinary commonsense fairness requires that. Clearly, elements of the Code are capable of being, and should be, applied, for example giving the employee the opportunity to demonstrate that she can fit back into the workplace without undue disruption, but to go beyond that and impose a sanction because of a failure to comply with the letter of the ACAS Code, in my judgment, is not what Parliament had in mind when it enacted section 207A and when the Code was laid before it, as the 2009 and 2015 Codes both were.22. Accordingly, I dismiss the appeal against the finding of unfair dismissal but do so in circumstances that would not permit the Tribunal at the remedy hearing to award an uplift under section 207A of the 1992 Act.[70]The EAT decided that it was clear that the Code of Practice did not apply to dismissals where the reason was some other substantial reason. That is a decision which is binding on me.[71]For breach of contract, the law is that an employee who is dismissed by the employer is provisionally entitled to receive notice which is the longer of the contractual notice period (if any) or the statutory minimum. In this case, the statutory minimum is eight weeks. An employee is not entitled to notice if they have fundamentally breached the contract of employment (for example, by an act of so-called gross misconduct). This breach does not necessarily have to be something which the employer had in mind when terminating the contract and the respondent can rely on information and evidence which it only acquired after termination. If, however, the respondent has affirmed the breach after knowing about it, then it cannot reply on that particular breach as justification for not giving notice.[72]Damages for failure to give notice are assessed in accordance with normal contractual principles and - subject to mitigation - the normal measure is the net amount that the employee would have earned during the notice period.[73]Holiday pay can be governed by contractual terms: workplace agreement and/or specific agreement with the individual employee. The employee is entitled to rely on whichever is more generous to him out of the Working Time Regulations 1998 and any specific contractual agreement. Put another way, the Working Time Regulations provide a guaranteed minimum entitlement, not a maximum. Page 13 of 22[74]Regulation 14 deals with compensation to be paid to an employee on termination of employment for any leave that has been accrued during the leave year in which they leave. It gives a formula. (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula– (A X B) - C where– A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A; B is the proportion of the worker's leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date.[75]Regulation 13(3)(b)(2) defines the start of the leave year as the anniversary of start of employment.Conclusions
[76]My decision is that there was a dismissal. It was the respondent which brought about a termination of the claimant’s employment contract. The employment contract did not end by resignation (which neither party particularly argued for in any event) and it did not end by mutual consent as submitted by the respondent.[77]As the respondent and the claimant and Ms Stapleton all knew, Ms Stapleton was authorised to act on behalf of the respondent in relation to any and all matters. It was clear to both the claimant and Ms Stapleton at the time, around 1 February 2019, that Ms Stapleton’s words to the claimant and her actions by barring him (first of all) from the dwelling house and then (in due course) from the grounds of the property as well, were bringing about a complete termination of their dealings which meant that the claimant’s employment with the respondent was also ending.[78]The employment contract was not specifically discussed. However, in all the circumstances, any reasonable employee would have realised that they were being dismissed. In any event, the claimant did realise that. As far as he was concerned, he was not going to get any more tasks form the respondent to perform and he was not going to get any more payments from it either. Ms Stapleton has argued that she did not intend her words to be words of dismissal. However, she did not allocate tasks to the claimant after 1 February 2019 and she was not expecting him to perform any tasks after that date. Ms Stapleton did authorise the February and March payments to the claimant, but she did not do so because she regarded him as being an ongoing employee. When she ceased the payments to him (and some time in early April was her evidence about when she made the decision), she did not regard the respondent as being obliged to contact the claimant either to discuss potential termination of these payments or even to inform him that she was taking that course of actions. That was because she did not regard her actions in April 2019 as being a termination of contract by her.[79]From any objective point of view Ms Stapleton’s words on (or around) 1 Page 14 of 22 February 2019 terminated the employment contract even though Ms Stapleton still does not (as of September 2021) accept that such an employment contract had actually been in existence up to 1 February 2019.[80]In looking at the list of reasons mentioned in s.98(2) of the Employment Rights Act, the claimant was not dismissed for any of those reasons. There is no suggestion that he was redundant or that it was illegal to carry on employing him. He was not dismissed for capability or qualifications and he was not dismissed for reasons which relate to the conduct of the employee. I rejected the cannabis argument for the reasons stated in the findings of fact. It was not the claimant’s conduct in his capacity as an employee which led to dismissal. The mere fact alone that the alleged conduct issue was not said to be during working time would not necessarily in itself bring it outside s.98(2)(b). But any conduct of the Claimant’s which caused the relationship to break down was not conduct as an employee. The dismissal was because there was a state of affairs that the personal relationship was not going to continue and, as a result, the employment relationship therefore also had to be terminated.[81]I agree with the comments made by Employment Judge Lewis at paragraph 53 of the liability decision about the employment relationship being unable to survive the ending of the personal relationship. In any event, regardless of whether termination of employment was inevitable (ie regardless of whether that was the only possible outcome or not) once the personal relationship ended, the fact is that the employment relationship did end, and the reason for the respondent’s dismissal of the claimant was that Ms Stapleton made a decision that she could no longer have any day to day contact with the claimant.[82]It is not necessary for me to dwell upon whether or not Ms Stapleton’s thought process could have been something which fell within the category “some other substantial reason” as per s.98(1) of the Employment Rights Act. The amended grounds of resistance did not seek to rely on some other substantial reason and, at the outset of the hearing on 22 September, the respondent’s counsel made clear that it was not the respondent’s case that it had dismissed the claimant for a potentially fair reason, rather it was relying on the argument that it had not dismissed at all, or, failing that, that the compensation should be zero.[83]For the avoidance of doubt, I reject any contention as hinted at in paragraph 3 of the amended grounds of resistance, that the reason for the claimant’s dismissal was either his performance of his duties or misconduct. Furthermore, Ms Stapleton was adamant that she did not regard the claimant as being an employee and it follows from that that she did not address her mind to what the required standards pf performance would be for the claimant and she did not address her mind to whether he was falling below the required standards either as a result of inability to perform to the required standard or as a result of deliberate refusal to do so.a. As the findings of EJ Lewis make clear, the claimant did not have any particular duties that he was obliged to perform to any given standard and he did not have any set hours. Messages from Ms Stapleton to the claimant telling the claimant to get another job and so on were not warnings to him to do the job for the respondent to a higher standard. Page 15 of 22 In any event, as made clear by Employment Judge Lewis, there was never an occasion on which the claimant refused to do any given task.b. In relation to conduct, my finding was that the claimant was not dismissed because of cannabis use. It is therefore not necessary for me to consider that particular alleged reason further, save to say that it is hard to see how the claimant could have been fairly dismissed for doing something which - on the respondent’s case - he had been doing for nine years without being warned to stop.[84]In relation to unfair dismissal, the respondent carried out no procedure at all prior to dismissing the claimant. The respondent carried out no process whatsoever. It did not follow any guidelines in the Acas Code, for example, taking some of the headings from the Code: it did not hold a meeting with the employee to discuss the problem; it did not allow the employee to be accompanied at the meeting; as per paragraph 18 it did not “after the meeting decide whether or not disciplinary or any other actions is justified and inform the employee accordingly in writing”; it did not provide the employee with an opportunity to appeal.[85]Given that Phoenix v Stockman is binding on me I make no uplift. If this had been a dismissal to which s.207A applied, then I would have awarded a 20% uplift to reflect, on the one hand, a total failure by the respondent to comply with the Code but also to acknowledge the particular circumstances of the case; ie a small employer, with the relationship between Ms Stapleton and the respondent being such that it would have been difficult in practical terms to arrange for a hearing which would have given the claimant and Ms Stapleton the opportunity to put their respective cases to an independent person.[86]In terms of wrongful dismissal, my decision is that the claimant had not committed a fundamental breach of the employment contract. Again, as per paragraph 51 of Judge Lewis’ decision, the claimant had never refused to carry out any tasks allocated to him by the respondent. I have also not been persuaded by the respondent that the claimant smoked cannabis. Even if he had been smoking cannabis as alleged for nine years, then any such breach had been waived given the fact that he had continued to do so (on Ms Stapleton’s account) with her consent (not willingly given, she says, but her passive consent nonetheless).[87]The claimant was therefore entitled to notice. He was not entitled to any contractual period that was longer than the statutory minimum. The minimum in his case was eight weeks as the parties agree. The earliest date therefore his employment could have lawfully terminated was 29 March 2019 if he had been given notice on 1 February. In fact, the claimant was only paid until 15 March 2019 and there is therefore a two-week shortfall. He is entitled to two weeks net pay as damages.[88]My finding is that if the respondent had not dismissed the claimant unfairly on 1 February 2019 there is a 100% likelihood that the respondent would have taken immediate steps to commence potential dismissal proceedings. A fair procedure would have involved appointing somebody other than Ms Stapleton to be the decision maker and would have involved notifying he claimant that the respondent was potentially going to dismiss him and giving him the reasons why that was being considered and calling the claimant to a hearing at which Page 16 of 22 the matter could be thoroughly discussed and at which the claimant would have the opportunity to make representations.[89]My finding is that there is a negligible likelihood that the director, Ms Stapleton, would have thought to persuade the respondent - at a hearing conducted by someone other than her - that the respondent should dismiss the claimant on the basis that the claimant had been smoking cannabis at her premises for the last nine years. Regardless of whether or not she believed that she could prove such an allegation to be true, I do not think it is likely that she would have thought that there was a plausible way of her justifying dismissal on that basis. In any event, it would have risked bringing discredit to her and to the business.[90]I do, however, think that there is 100% chance that the only realistic choices for the respondent at such a fair hearing would have been either to allocate the claimant a different job to the one that he had been doing or else to dismiss him. My finding is that there is a 100% chance that choosing between those options that this particular employer would have decided to dismiss this particular claimant in these particular circumstances.[91]There is a 0% chance that the breakdown of the working relationship between the claimant and Ms Stapleton would have caused the Respondent to get rid of Ms Stapleton. For completeness, there is also a 0% chance that any such parting of the ways between the Respondent and Ms Stapleton would have led to the claimant being kept on as a factotum to a hypothetical new director hired to replace her.[92]I also take account of the fact that the claimant made clear in his evidence that he could not contemplate working in the care industry within Suffolk because of the risk of coming into contact with the respondent or Ms Stapleton. I therefore think that there is a very high likelihood that even if the respondent had offered him an alternative job (contrary to my decision that there is a 100% chance they would have not done so) then there is a very high chance that the claimant would have refused it in any event.[93]My decision is that a fair process, if it had started on 1 February 2019, would have been concluded in no more than two weeks. That would have been sufficient time to invite the claimant to a hearing and conduct the hearing fairly and make a fair decision. Any additional time for appeal is not relevant because the dates of termination would still have been two weeks after 1 February 2019.[94]Therefore, the compensatory award which I make for unfair dismissal is net pay for two weeks. This is in addition to, and it does not overlap, the award for breach of contract.[95]I do not make any reduction to either the award for unfair dismissal or the breach of contract for alleged failure to mitigate losses. The respondent has not persuaded me that even if the claimant had started looking for work promptly on 1 February 2019, he would have been able to find work within either February, March or April 2019. That is the only period for which he has been awarded damages and compensation.[96]It is not just and equitable for me to make a reduction to the awards to take account of the alleged contributory fault. The reason for the ending of the Page 17 of 22 relationship was the breakdown in a personal relationship between the claimant and Ms Stapleton. It is likely that some of the claimant’s behaviour caused the breakdown of that personal relationship. (To believe otherwise would be to regard Ms Stapleton as wholly responsible for the breakdown in the personal relationship and that would not be a reasonable inference form the evidence). So, the claimant at least to some extent, contributed to the ending of the personal relationship. However, it does not follow from that that he contributed to the ending of the employment relationship.[97]The claimant’s culpability in causing Ms Stapleton to decide to cease their romantic relationship was only indirectly responsible for causing the employment relationship to end. In his capacity as an employee, given the nature of the duties as found by Employment Judge Lewis, the claimant did have a responsibility to his employer (the respondent) to maintain a good working relationship with the director, Ms Stapleton. However, in terms of carrying out his duties for the respondent, there was never a time when he endangered the working relationship by any failure to carry out work tasks as directed by her.[98]I did not find that he had been smoking cannabis for nine years. Therefore, that is a not a factor for contributory fault reduction. In any event, even if he had been smoking for nine years, then he had been doing it with Ms Stapleton’s consent and so it is not conduct which could have fairly have been said to justify a reduction in compensation for a dismissal in 2019.[99]In any event, when considering whether to make a reduction it is necessary to decide what is just and equitable. I have already decided that the claimant’s compensation is only going to be limited to two weeks because that is the period after which the chances of a fair dismissal are 100%. I do not think it is just and equitable to make any further reduction on the basis that the claimant contributed to the ending of the personal relationship between himself and Ms Stapleton.[100]In relation to holiday pay, I have decided on the facts that the claimant did in fact use his full entitlement. The claimant’s entitlement to holidays would have been 10/12 of 5.6 weeks, namely 4.7 weeks and they would have been paid at a gross rate of £400 per week which is taxable. The claimant accepted that he had gone on trips abroad with Ms Stapleton and his argument as to why those should not be counted as holiday included both that they were on dates of her choosing rather than his and also that he was still doing work for the respondent while he accompanied Ms Stapleton. I rejected those arguments.[101]He also asserted that he was not given payslips which specifically mentioned holiday pay. That seems to be correct, based on the documents I have seen. However, it is irrelevant the at the payslips did not specifically use the words “holiday pay”. What is important is whether or not the claimant had the time off and whether he was paid for it. I found that he did take the time off and he was paid as normal for those periods.[102]There were two applications made. One by the claimant and one by the respondent. Page 18 of 22[103]The claimant’s application referred to the fact that a 3-day final hearing had been listed in this matter to take place between 3 December (the start date was a Thursday) and 7 December 2020. That was to be a continuation of a hearing before Employment Judge Lewis which had commenced in September 2020 and therefore, of course, the parties had been aware of the new dates since September (as well as, of course, being aware of the litigation for some time previously) and been aware of the final hearing dates for September 2020 in advance of that.[104]On 1 December 2020, the tribunal and the claimant’s representative received an application to postpone the hearing. It was sent on Tuesday 1 December 2020 at around 3.20pm. To summarise, the basis for the postponement application was that the respondent wished to appoint a legal representative, a legal representative having been approached (I am told by the respondent, the week before the letter to the tribunal) on 1 December, that representative wrote seeking the postponement. Keystone Law had drafted the grounds of resistance and acted for the respondent at an earlier stage in the proceedings, but later had ceased to act and the respondent company had, for a time, been a litigant in person. The Respondent had reconsidered its position and decided to appoint a legal representative for the hearing.[105]The claimant’s application relies on the lateness of the application and the alleged unreasonableness of the respondent’s actions in seeking such a postponement at such a late date. The statement of costs refers to costs incurred between 2 December 2020 and 8 February 2021.[106]The application was ultimately granted on the morning of the 3 December and that resulted in the adjournment being granted. The events after that do not necessarily matter. It was not granted by agreement, it was granted on the basis that the claimant’s side opposed it. As was made clear in the order by Employment Judge Lewis, a costs application had been flagged up and its determination was to be adjourned to a later date.[107]The respondent’s application is made on the basis that on 4 March 2020, the respondents, who had Keystone Law acting for them at that particular time, sent a letter which was “without prejudice save as to costs” which made an offer of £8,600 in full and final settlement. It gave a breakdown of the offer being £3,200, plus £4,000, plus £1,400. The £1,400 seems to represent a month’s net pay. It is not necessarily clear (if it matters) which of the £3,200 and the £4,000 was the basic award. In any event, the overall offer was £8,600 and it was subject to a COT3 settlement being entered into.[108]In response, the claimant said that he was willing to accept the sum of £8,600, subject to entering into a settlement agreement, but with two conditions. He wanted a reference to be included as part of the package as well and he also wanted it to be made clear that he was only settling the employment tribunal litigation and that he was not settling the separate litigation / legal claims in relation to any company law allegations (eg in relation to an alleged 49% shareholding in the respondent company). The Respondent was not willing to settle on that basis and the submissions made to me were that the offer made in the 4 March 2020 letter was for full and final settlement of other claims too, not just the ET proceedings.[109]The Employment Tribunal Rules of Procedures deals with costs, orders, Page 19 of 22 preparation time orders and wasted costs orders, starting at Rules 74 and 75 with the definitions.[110]Rule 76(1): (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim or response had no reasonable prospect of success; or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.[111]It deals with the fact that the costs the tribunal shall consider whether to make an order for costs in any of the circumstances (a) to (c). They are alternatives, not cumulative. It is not necessary when considering applications made under Rule 76(1)(c) for the party who is seeking the award to demonstrate that there has been unreasonable behaviour. The unreasonable behaviour part of it comes under Rule 76(1)(a). Rule 76(1)(c) is a separate self-contained rule in its own right (although, of course, whether the party acted unreasonably in connection with a postponement application might be relevant to the exercise of the discretion).[112]Costs are discretionary. They are the exception rather than the rule. The mere fact alone that I find that one of the grounds under 76(1) [or indeed more than one] has been satisfied, does not mean it automatically follow that I will make an award of costs. Amongst other things I must take into account the fact that if I do make an award, it is to be compensatory and not punitive. I take into account the paying party’s ability to pay.[113]In terms of the rejection of settlement offers, in other words the matters relevant to the respondent’s application, it is clear that Calderbank v Calderbank, which potentially still has some relevance in Civil Court proceedings, has no direct relevance in employment tribunal proceedings: Kopel v Safeway Stores plc 2003 IRLR 753.[114]I was referred by the claimant’s representative to Anderson v Cheltenham and Gloucester plc EAT 0221/13, where the EAT reiterated again that the Calderbank principle does not apply and that failure to accept a prior offer might have a bearing on the decision about whether or not the party should be deemed to have conducted the proceedings unreasonably but it does not - in itself - demonstrate that the party has conducted the proceedings unreasonably. It is important to analyse - specifically and closely - what the particular reasons were for rejecting an offer. If the reasons for rejecting the offer are not unreasonable then it is not evidence of unreasonable behaviour.[115]In terms of postponements, as I have said, it is not necessary to demonstrate – if Rule 76(1)1(c) is satisfied - that the other party has acted vexatiously, abusively, disruptively etc. Costs awarded under 76(1)(c) do not necessarily have to be limited to the costs that are caused specifically by the postponement or the delay. Page 20 of 22[116]It has not been suggested to me on the part of either side that there is a lack of ability to pay. Both sides have been represented at the relevant times. The claimant was represented at the time of the correspondence about rejecting the offer. The respondent, while there periods where it had no legal representation, was, of course, represented at the time it made the 1 December 2020 application.[117]In terms of the claimant’s application, it is significant and it is appropriate for me to take into account that the adjournment was ultimately granted. I do take that into account but it does not follow from the fact that EJ Lewis agreed to postpone that there should be no cost award made. It was obvious to the Respondent that the lateness of the application was likely to cause costs and inconvenience to the other side. The respondent company whose main “owner” (if I may adopt that word) is Ms Stapleton, is not the type of litigant in person which has no familiarity with business dealings and with deadlines and with cost implications of making certain decisions. I am satisfied that Ms Stapleton personally, and the respondent generally, were aware that the Respondent’s actions in asking for a postponement in December 2020 would come at a cost and I am satisfied that they must have been aware that there was a risk that a costs award would be made against them. It is not necessary for me to pry behind privilege to make the obvious comment that it is something that I am sure was discussed prior to the application being made.[118]The overall amount sought by the claimant is £2,347.20. That amount is entirely reasonable in all of the circumstances and I make an award that the respondent pays the claimant’s costs in the sum of £2,347.20.[119]Turning now to the respondent’s application. The main thrust of the application is that I have awarded the total sum of £4,548.24 and that therefore is slightly more than £4,000 under the £8,600 which was offered to the claimant. As the parties know from the judgment given earlier today, the award would have been higher if I had accepted the claimant’s case that he had not received six weeks’ worth of payment from 1 February to 15 March 2019. For what it is worth, the settlement offer I have been referred to does not seem to make any reference to any alleged payments in 1 February or March.[120]Whether or not I would have read this particular letter as expressly intending to cover any company law claim (or other claims outside the employment tribunal) is irrelevant. It is the Respondent’s position before me that by the Claimant’s request to have express wording in the settlement to make clear that the company law claim was excluded, he was rejecting the offer. (The Respondent also points out, and I agree, that any counter offer at all counts as a rejection, and so the request for a reference – being a counter offer – would have counted as a rejection regardless of whether the original offer was intended to be understood as encapsulating the company law claims as well as the tribunal claims). It is common ground that, in the further discussions about the potential settlement, the respondent did make clear that it wanted this sum of £8,600 to be accepted in settlement of all claims and not just the employment tribunal litigation. I have absolutely no idea at all - and it would not be appropriate for me to even speculate - as to what the claimant’s chances of success in any other litigation are, or what the value of that other claim might be if he is successful. However, it does not seem to me to be unreasonable for a party to respond to the 4 March offer in the way that the claimant did in Page 21 of 22 his without prejudice correspondence.[121]It is not unreasonable in itself to ask for a reference. There obviously would come a point where if the offer was so large in cash terms and insistence on a reference on top might potentially be seen as unreasonable. However, in these particular circumstances, the offer was towards the low end of what the claimant would hope for if he was to be successful with the tribunal claim, and asking for the respondent to compromise by giving him a reference as well was not unreasonable. As an aside, it does not follow that the respondent was unreasonable if it refused to agree to a reference. The respondent should only give references if it thinks it is appropriate to do so. However, I am concentrating whether the claimant was acting unreasonably by asking for a reference and, he was not.[122]However, the side issue of the reference request is dwarfed by the fact that the claimant’s opinion was that he had a valuable claim in a separate forum. He did not want to compromise both claims for the aggregate sum of £8,600. Not only am I entirely unpersuaded (because of the lack of evidence about the other claim, for one thing) that it was unreasonable for the Claimant to continue with the tribunal claim rather than settle both for the aggregate sum of £8,600, the fact that the Respondent made clear (whether in the initial 4 March offer, or in the subsequent discussions) that the offer was £8,600 for both claims undermined the whole basis of the respondent’s costs application, being that the claimant had allegedly failed to beat £8,600 on his employment tribunal claims.[123]So, for those reasons, the respondent’s application for costs is refused.