Mrs L Lyddall v The Wooldridge Partnership Ltd: 3314738/2021
EMPLOYMENT TRIBUNALS
Case No 3314738/2021
Between
Mrs L LyddallClaimantThe Wooldridge Partnership LimitedRespondent
Before
Employment Judge Gumbiti-Zimuto
Members
Ms M Thorne and Mr F WrightIn person for claimantDate 19 December 2022
JUDGMENT
[1]The claimant’s claim of disability discrimination is well founded and succeeds.[2]A remedy shall take place on the 28 March 2023, commencing at 10am, the parties must be ready to proceed at 9:30am on the Court Video Platform (CVP).[3]By 4pm on 27 January 2023 the parties must send to each other a list and copies of all documents relevant to remedy.[4]By 4pm on 27 January 2023 the claimant must send to the respondent a schedule of loss claimed.[5]By 4pm on 10 March 2023 the respondent must send to the claimant a counter-schedule of loss.[6]By 4pm on 10 March 2023 the parties must send to each other the signed statements of all witnesses on whom they intend to rely at the remedy hearing, this includes the claimant. Oral evidence will not be permitted at the remedy hearing from a witness whose statement has not been provided in accordance with this order or has been served late, except with permission from the Tribunal.
REASONS
[1]In a claim form presented on the 24 August 2021 the claimant made a complaint of disability discrimination. The claimant’s complained that her dismissal by the respondent was direct discrimination on the grounds of her disability. The respondent denied the claimant’s complaint and stated that the claimant was dismissed because of concerns about the claimant’s performance and conduct.[2]The claimant is a disabled person within the meaning of section 6 Equality Act 2010.[3]The claimant gave evidence in support of her own case. The respondent relied on the evidence of Mr Costas Constantinou and Mr Charlie Wooldridge. All the witnesses produced statements which were taken as their evidence in chief. The parties also produced a trial bundle containing 152 pages of documents. From these sources we made the following findings of fact.[4]The claimant was employed by the respondent on 30 March 2021 as Marketing Manager. The claimant’s employment came to an end of the 2 August 2021 when she was dismissed.[5]The respondent consists of a small portfolio of businesses in the retail, hospitality and leisure industries.[6]Mr Constantinou was a consultant who specialised in hospitality, he provided consultancy services to the respondent from February 2020. Mr Constantinou was involved in selecting the claimant for employment and during her employment was her line manager.[7]The claimant’s employment was subject to a 6 month probation period, during which the claimant could be dismissed with a week’s notice. Without a dedicated work station the claimant often worked from home.[8]The parties have not provided us with a person specification or job description for the claimant’s role among the documents. There is no document in the Trial Bundle which sets out what if any induction training was provided to the claimant at the start of her employment. These matters were not addressed in the claimant’s statement or the statements of the respondent’s witnesses.[9]The claimant’s contract provided that she was employed as Marketing Manager, but she could be required to undertake other duties. The claimant was employed to work part-time, 25 hours a week. The parties agree that the claimant was employed to create and implement marketing strategies for Lavershot Barns, Seasons Farm Shop and Restaurants, and Lavershot Oaks Golf Club.[10]The claimant states: “The problem arose when more and more work came my way, some jobs that were not in my toolkitof experience and should really have had a site manager to see to, and the fact that I had not more (J) Page 2 of 7 time to do anything. I brought his up with Costas Constantinou on more than one occasion, he said we would talk about it but nothing came of it.”[11]The claimant arranged meetings with “key team members to update the strategy…it was also a time for feedback and suggestions. Unfortunately it became apparent after two meetings that the key players were not at all interested in joining anymore meetings, and I did not have time to chase them… I relied on my team leaders to let me know when there was something new and exciting happening but there was very little communication regarding this.”[12]Mr Constantinou worked closely with the claimant and enjoyed a good relationship with her. Mr Constantinou states that there were concerns about the quality of the claimant’s work. The claimant on the other hand states that “At no time did anyone talk to me about my performance. In fact all I received was positive reinforcement.”[13]Mr Constantinou refers to a number of examples of the claimant’s alleged poor performance. The claimant essentially denies the allegation that her work was poor and her performance unsatisfactory. She denies specific allegations about poor work on the website. The claimant takes issue with what is said about her social media posts. In his evidence Mr Constantinou said that the claimant “failed to engage with the directors and stake holders”, the claimant “failed to deliver” and did not develop a brand identity. The claimant took issue with all these criticisms.[14]The claimant points out that there is no documented criticism of her at all. Further we note that the respondent accepts that issues were not raised with the claimant directly as issues of performance. Mr Constantinou stated that he had “conversations with Lucy [the claimant] about her interactions with others”. Mr Constantinou was asked why he did not go down the route of a performance improvement process with the claimant his response was that “I do not think that is the right approach”. When speaking about the claimant’s failure “to deliver” Mr Constantinou stated that “Rather than bringing it to you directly I found it difficult to see what you are delivering.” We understood this comment to be an acceptance that he did not directly question the claimant’s performance by stating that she was not performing to the required standard.[15]Mr Wooldridge addressed the failure to confront the claimant directly about the respondent’s view that she was failing in her performance. When questioned about the absence of any document suggesting a failure to perform Mr Wooldridge stated the following:[16]“In terms of communication why there is no email trail before you went off you were only there 6-8 weeks so in terms of a probation period, none of us felt it fair or right to be emailing you negative feedback within that period of time.”[17]Mr Wooldridge directly links the claimant’s absence for medical reasons (J) Page 3 of 7 connected with her disability with the failure of the respondent to address directly with the claimant any concerns that they may have had about the claimant’s performance.[18]Mr Wooldridge continued: “The communication between each head of department started slowly fading away and it seemed through what I was hearing that there was only one common denominator and unfortunately that was you.” Mr Wooldridge went on to say. “Around the time that this was being considered is about the time you told us the news and that you were going off and so obviously that is not really the time to be sending you emails of negative feedback from within the team so obviously it was the decision made that we should not put you on any more stress with the feedback.” Mr Wooldridge openly linked the claimant’s disability with the reasons why the respondent did not mention to the claimant that they had concerns about her performance.[19]It is significant in our view that not only was there no communication between the respondent and the claimant, but there was no written communication between the Mr Constantinou and Mr Wooldridge about the claimant’s poor performance or any documented feed back about the claimant’s performance from other “stakeholders”[20]There were some clear and obvious failings by the claimant in her performance, an issue about signage and a filing in respect of a Surry Butcher’s concession. The claimant accepts that these were serious faults or errors. The claimant does not accept that they were of such a serious nature as to justify termination of her employment. The respondent does not suggest that they were.[21]The claimant also accepts that there were occasions when she spoke with Mr Constantinou and he expressed a view that differed to hers or stated that he was not happy about things. The claimant’s evidence in respect of these matters however suggested that these exchanges with Mr Constantinou were not any form of counselling or expressions of criticism of the claimant’s performance. Rather the claimant considered these exchanges to be in the nature of Mr Constantinou’s input of his views and opinions about the claimant’s work, matters she could take on board or ignore as she thought fit, but not an indication that the claimant’s performance was failing.[22]On 26 May 2021 the claimant was informed that she required medical treatment in respect of her disability. The claimant returned to work after a period of sickness absence during which she was paid her contractual pay. It is noted that the respondent paid the claimant her full contractual pay notwithstanding that she did not have such a contractual entitlement, contractually she was only entitled to statutory sick pay.[23]In July the claimant informed the respondent that she would need further treatment related to her disability and that she would need time off work. Also in July the claimant took some time off work to get married. (J) Page 4 of 7[24]On the claimant’s return to work the claimant was informed by Mr Constantinou that she was being “let go”. The reason that the claimant was given was that “your vision is not their vision”.[25]The effect of section 13 Equality Act 2010 (EA) is that an employer must not discriminate against an employee by dismissing her or subjecting her to any other detriment. An employer discriminates against an employee if because of her disability they treat the employee less favourably than they treat or would treat others.[26]The burden of proof set out in section 136 EA provides that if there are facts from which the employment tribunal could decide, in the absence of any other explanation that the employer contravened the provision concerned the employment tribunal must hold that the contravention occurred. However, this does not apply if the employer shows that it did not contravene the provision.[27]We have considered the guidance in Igen -v- Wong [2005] EWCA civ 142. We have approached this case by considering, having regard to all the evidence, whether the claimant has proved facts from which we could conclude in the absence of an adequate explanation that the respondent has dismissed the claimant because of her disability. If she has, we proceed to the second stage, which only comes into effect if the claimant has proved those facts, that requires the respondent to prove that it did not or is not to be treated as having dismissed the claimant because of disability.[28]We bear in mind that the burden of proof does not shift to the respondent simply on the claimant establishing a difference in treatment and a difference in status, something more is required. The respondent has reminded us that whether there has been less favourable treatment cannot be inferred simply from the fact that the respondent has behaved unreasonably.
Conclusions
[29]What was the reason for the claimant’s dismissal? The Tribunal has concluded that the reason for the claimant’s dismissal was in part her disability.[30]The claimant and Mr Constantinou did discuss the claimant’s work. The way that Mr Constantinou communicated matters to the claimant led her to believe that she was being provided with his input views and opinions on her work. It was not expressed in a way that made it clear and obvious to her that her performance was below an acceptable standard. The claimant considered, and the Tribunal are of the view that it was reasonable for her to conclude, that overall, his comments were positive reinforcement of the work she was doing. She could not have reasonably concluded that he considered she was failing. (J) Page 5 of 7[31]We have considered the evidence that was given by Mr Constantinou in which he stated to us that he spoke to the claimant about her performance and in doing so he made it clear that her performance was not at an acceptable level. We do not consider that Mr Constantinou did make it clear to the claimant in this way.[32]We have gone on to consider whether the claimant’s performance was in fact the reason that the claimant was dismissed. We note that the claimant’s performance is not noted in any contemporary documentary form as below standard. We also note that the claimant was in her probation period and that part of the purpose of the probation period is to assess the suitability of an employee for a role. We would have expected to see an engagement between the claimant and her line manager directly addressing her performance if it was falling short. We note that there were errors made by the claimant and they were discussed by the claimant and Mr Constantinou. They are not stated to be so serious as to have a terminal effect on employment. It was not communicated to the claimant that the cumulative effect of such errors was terminal to her employment. We have concluded that any concerns about the claimant’s performance were not so serious as to justify termination of the claimant’s employment for a performance short fall.[33]We have also concluded that the claimant’s disability was a factor in the decision to dismiss the claimant. The claimant was off work for hospital treatment and the respondent acted with generosity in paying her contractual pay in circumstances where she was not contractually entitled to it. However, we also note that Mr Wooldridge, whose decision we understand it was to finally direct the dismissal of the claimant had her disability in mind when he stated that one reason for not referring the claimant to negative feedback was her disability and the medical treatment, she was either about to undergo or had undergone.[34]We also note that the claimant told the respondent of her need for further treatment and time off work because of her disability shortly before the claimant left to get married. On her return to work the claimant was dismissed by the respondent with a week notice. There was no signposting that this was in the offing for the claimant, nothing to warn her that her dismissal might be imminent or was likely if her performance did not improve.[35]Taking all these matters together we are of the view that the claimant has proved facts from which we could conclude that the claimant was dismissed on the grounds of her disability.[36]We have then gone on to consider whether the respondent has shown that there is no discrimination whatsoever in the decision to dismiss the claimant and we have concluded that they have not. The respondent relied on the claimant’s performance as the sole reason for her dismissal we are not satisfied on a balance of probability that this was the case. (J) Page 6 of 7[37]The claimant’s compliant of disability discrimination is well founded ad succeeds.
Conclusions
[1]Following a hearing on 12 and 13 December 2022 the claimant succeeded in her claim that she was discriminated against by the respondent when she was dismissed. The claimant was employed by the respondent from 30 March 2021 until 2 August 2022. She was employed in the position of Marketing Manager.[2]The claimant states that the decision to dismiss her was “completely unexpected and shocked me”. The Tribunal noted that while there were “some clear and obvious failings by the claimant in her performance”, it was not made clear that the claimant’s performance was below an acceptable standard. Any concerns about the claimant’s performance were not so serious as to justify termination of the claimant’s employment for a performance shortfall.[3]The claimant immediately began looking for employment following her dismissal and she was able to secure the offer of employment from a care home. The employment on offer was a full-time role of a marketer, on a salary of £31,500 per annum, plus a conditional bonus of £3,500. The claimant was to have a start date in that new employment from 15 (J) Page 1 of 5 September 2021. The claimant initially accepted the role but subsequently retracted her acceptance of the role in the following terms: “unfortunately I'm going to have to retract my acceptance for the marketer role. I think getting the hub up and running by the end of October is not deliverable. It will be a highly stressful project which will not be in my best interests at the moment.”[4]The claimant explains these actions by saying that she was diagnosed with breast cancer on the 26 May 2021 followed soon after by hospital treatment involving surgery. The claimant’s doctors informed her she would need further treatment in the form of intensive radiotherapy to take place between 2 September and 15 September 2021. The claimant’s treatment was going to result in her suffering side effects, which she was advised to expect to continue for some weeks after the treatment was carried out. The claimant concluded that the “role would have been too stressful so was unsuitable for me at the time given I was still being treated for breast cancer”.[5]The claimant also obtained job interviews with other companies. On one occasion she withdrew and did not go through with the interview. There were other interviews for roles that the claimant applied for, but she was unsuccessful in these applications, until the claimant was offered the role of an assistant merchandiser. The claimant accepted the role and began work with her new employer on 15 November 2021.[6]In the role of assistant merchandiser, the claimant’s normal hours of work are 21 hours a week, Monday, Tuesday, and Wednesday earning £12.00 per hour. The claimant explains that she applied for the assistant merchandiser job because she has an interest in interior design and she finds the work rewarding. The claimant has developed good relationships with her new colleagues. Level of compensatory award[7]The respondent contends that the Tribunal should find that the claimant’s employment would have lawfully terminated in any event soon after she was in fact dismissed and factor this into our calculation of the compensatory award by reducing it by 50%. We reject this argument.[8]The respondent never alerted the claimant to what is now claimed to have been her performance issues. The claimant was not told of a need to improve or given any directions on what was considered acceptable performance. Such performance issues as were evident in the time of the claimant’s employment would not have justified dismissal. There is in our view no justification for concluding that, had the claimant been informed of her performance shortfalls, she could not have addressed them so as to enable her employment with the respondent to continue.[9]The respondent says that mitigation ought to have commenced in early September 2021 as the claimant could have taken up a role which would have extinguished any loss of earnings. The fact that the claimant chose not (J) Page 2 of 5 do so “should not rebound to the respondent’s detriment in the calculation of the compensatory award”.[10]The Tribunal considers that there is a need to recognise that the claimant had some success in her search for work following her dismissal. The claimant was clearly an adept and competitive applicant in the job market when looking for equivalent roles to the one that she held with the respondent. She was offered one job and offered interviews for other roles where, but for better candidates on a couple of occasions, she could have been appointed to a number of roles. On one occasion the claimant chose not to take up the offer of an interview. We consider that, had the claimant continued to seek alternative equivalent roles to that which she held with the respondent, it would have taken her no more than six months to find a new role.[11]The Tribunal accepts the claimant’s evidence that she considered the role that she had secured, at the relevant time, would have been too stressful for her so that at that time it was unsuitable for her. We consider that the fact that the claimant had surgery for cancer and then underwent radiotherapy, a treatment which was going to have side effects outlasting the treatment itself, enables us to conclude that the claimant’s approach to mitigating her loss was reasonable, and for a period of about six months from her dismissal it was reasonable for the claimant to seek work that was not as stressful as her previous role, even if it was paid at a lower rate.[12]The evidence before us is that from 15 November onwards the claimant did not seek employment in roles equivalent or better than her previous role. She chose to work as an assistant merchandiser, for perfectly understandable and reasonable reasons; however the respondent should not pay for the claimant’s choices beyond a reasonable period of time for the claimant to mitigate her losses. In our view that is a period of six months from her end of her employment.[13]The claimant in our view is entitled to recover compensation for a period of 26 weeks, losses at the rate of £336.91 per week totalling £8,759.66. For a period of up to 26 weeks from the end of her employment the claimant should give the respondent credit for her earnings. This amounts to £2876.50. The claimant’s loss of earnings in the relevant period is therefore £5883.16.[14]The claimant asks that we make her an award for loss of statutory rights. We do not consider that it is appropriate for us to make her an award in respect of loss of statutory rights due to the length of time that her employment with the respondent lasted. The claimant’s employment with the respondent having ended after only a short period of time means that the claimant has lost little by way of statutory rights. We do not consider that there is a loss that it is just and equitable to compensate.[15]The claimant makes a claim in respect of pension contributions that would have been made by the respondent. We consider that the claimant is (J) Page 3 of 5 entitled to recover this head of loss. That amounts to a figure of £595.00 in respect of a 26-week period.[16]The claimant should also give credit to the respondent in respect to £500 pounds which was paid for in lieu of notice. ACAS Uplift[17]We consider that this is a case where and ACAS uplift is just and equitable. The manner of the claimant’s dismissal was such that it failed to follow any fair procedure at all. This was a case where the claimant’s purported dismissal for capability grounds should have been one where a procedure was followed that enabled the claimant to have an understanding of how she was failing and offered her an opportunity to improve. Having regard to the complete failure to follow any reasonable procedure we consider that in all the circumstances a 20% uplift is just and equitable. Injury to feelings[18]We consider that this is a case which has had a serious and significant impact on the claimant. The claimant’s injury to feelings is in our view illustrated most starkly by the fact that, creditably attempting to get back to work the claimant sought and achieved an offer of employment in a similar role on a better level of pay to her previous role with the respondent but she was unable to go through with it for the reasons explained. This was in part due to the impact of her medical condition giving rise to disability, and also due in part to the effect that the dismissal had on the claimant’s confidence. As a result, she gave up the opportunity of a better paying job and possibility of a significant bonus. The claimant had been dismissed by the respondent at a point of exceptional vulnerability so whilst this was a one-off act of discrimination by dismissal of the claimant, it has involved the loss of her job and in her circumstances, where she was receiving treatment for cancer, has meant that the claimant has had to abandon (for the time being at least) a career in marketing for a job that, for the reasons she has explained, she finds more convenient presently. Taking all these factors into account we are of the view that an award for injury to feelings in the sum of £18,250.00 is a fair reflection of the damage sustained by the claimant. Aggravated damages[19]We do not consider this is a case where an award for aggravated damages is necessary and justified as compensation for the claimant. Interest[20]We consider that an award of interest is justified in this case. The claimant should recover interest on the award for injured feelings and also on the award for loss of earnings which have all been incurred at the date of calculation. The claimant is therefore entitled to the losses as set out in the table below. (J) Page 4 of 5 Injury to feelings award £18,250 ACAS uplift on Injury to feelings £3,650 @20% Interest on injury to feelings award1 £2,412 Sub total: £24,312.00 Loss of earnings £5,883.16 Loss of pension £595.20 Credit for payment from respondent -£500 Sub total: £5,978.36 ACAS uplift on £5,978.36 @20% £1,195.67 Interest on £5,978.362£395.06 Sub total: £1590.73 Net Total: £31,881.09 Gross Total3 £32,351.36