[1]The Tribunal declares that the Claimant’s complaint that the Respondent made unauthorised deductions from his wages contrary to s.13 of the Employment Rights Act 1996 fails and is dismissed.[2]The Tribunal declares that the Claimants complaint that the Respondent failed in its duty, contrary to s.20 and s.21 of the Equality Act 2010, to make reasonable adjustments for the Claimant declare that the complaints are not well founded and accordingly that they are dismissed. Case Number: 3322552/2021
REASONS
[1]The Claimant worked as a Production Operator having commenced employment with the Respondent on the 17th of February 2001, and was still employed by them as at the date of the hearing.[2]In 2009 he was promoted to the position of Technical Operator.[3]The Respondent produces the well-known breakfast cereal Weetabix.[4]It was accepted by the Respondent that the Claimant was disabled at all material times as set out in the Equality Act 2010. He suffered with a back problem in that he had bulging discs in his spine.[5]On the 27th of March 2020 he was advised to shield, and this was set out in a letter to him from the NHS as he was classed as being clinically extremely vulnerable. This was because he took immunosuppressant injections as part of his treatment for his long-term back problems.[6]Thereafter the Claimant took various amounts of time off work to shield due to Covid-19, and latterly in May 2021 for an operation for his bulging disc problems.[7]The Claimant used up his entitlement to Company Sick Pay (‘CSP’) when he was shielding, and when he then had to self-isolate, prior to and following an operation in March 2021, he claimed a reasonable adjustment to the CSP policy for the period for which he was unpaid.[8]During his employment the Claimants mother died for which he also claimed two weeks bereavement leave. Issues[9]The issues we had to determine were as set out in the Issues contained in the Case Management Order of Judge Postle dated the 4 August 2022 as follows: - UNLAWFUL DEDUCTION FROM WAGES9.1 Jurisdiction 8.1.1 Was the claim form submitted more than 3 months after the alleged unlawful deduction from wages? 1.1.2 If so, was it reasonably practicable for the claim to have been submitted within the time limit? 1.1.3 If it was not reasonably practicable for the claim to have been submitted within the time limit, was the further delay beyond the end of the 3-month period reasonable?9.2 Deduction from Wages9.2.1 Did the Respondent make an unlawful deduction from wages within the meaning of s.13 of the Employment Rights Act 1996 (‘ERA 1996’)? The Claimant claims that the Respondent should have paid him four days’ paid bereavement leave between 1 May 2021 and 15 May 2021.9.2.2 In particular, the Tribunal will need to consider:(a) Does the four days’ paid bereavement leave claimed by the Claimant constitute ‘wages’ for the purposes of s.27 ERA 1996?(b) If so, was there a deduction of those wages for the purposes of s.13(3) ERA 1996?(c) If so, were those wages properly payable for the purposes of s.13(3) ERA 1996? DISCRIMINATION9.3 Jurisdiction9.3.1 Was the claim form submitted more than 3 months after the conduct complained of?9.3.2 If so, did that conduct form part of a chain of continuous conduct which ended within three months of the claim form being submitted?9.3.3 If so, would it be just and equitable for the Tribunal to hear the claim?9.4 Was the Claimant disabled? 9.4.1 The Respondent confirmed on 23 June 2022 that it accepts that the Claimant was disabled, by reason of his ‘chronic back condition caused by bulging discs at multiple locations in his spine’, at all relevant times for the purposes of the Equality Act 2010 and for the purposes of his claim.9.5 Failure to Make Reasonable Adjustments Sections 20 and 21 of the Equality Act 20109.5.1 Did the Respondent apply a provision, criteria, or practice (a ‘PCP’)? The Claimant relies on the following PCP: (a) ‘only paying 67 days’ company sick pay before that entitlement is exhausted’.9.5.2 If so, did that PCP place the Claimant at a substantial disadvantage in comparison with employees who were not disabled? The Claimant alleges that: ‘as a disabled person he was at a particular disadvantage through this PCP because he was required to shield during the pandemic because of his disability... he was disadvantaged because he had no CSP to use in cases of actual sickness [because his entitlement had been exhausted whilst shielding]’.9.5.3 If so, did the Respondent take such steps as it was reasonable for it to take in all the circumstances to avoid the disadvantage?9.5.4 The Claimant contends that the Respondent ought to have ‘made a reasonable adjustment to remove this disadvantage by agreeing not to include days where CSP was paid during periods of shielding when calculating his remaining CSP entitlement for the purposes of paying sick pay for other absences’.9.6 REMEDY If the Claimant’s claims are upheld what financial compensation is appropriate in all the circumstances?
Findings of Fact
[10]We found as follows: -(i) On the 27 March 2020 the Claimant was sent a letter by his GP asking him to shield because of COVID and he notified his manager [p.123].(ii) From the 3 August 2020 to the 25 August 2020 the Claimant returned to work on a phased return further to the advice of his GP [Para 6 of witness statement of Claimant].(iii) From the 26 of August 2020 to the 3rd of November 2020 the Claimant returned to work on a full-time basis [Para 7 of Claimant’s witness statement].(iv) From the 4 November 2020 to the 23 November 2020 the Claimant was suspended from work for reasons unrelated to this claim.(v) From the 24 November 2020 to the 2 December 2020 the Claimant was absent from work shielding [Para 9 of Claimant’s witness statement]. At this point the Claimant asserted that he wanted to return to work, something we return to below.(vi) From the 3 December 2020 to the 12 December 2020 the Claimant wished to return to work on a full-time basis, but he alleged he was discouraged from doing so by the Respondent and we return to this below [Para 9 of Claimant’s witness statement]. From the 13 December 2020 to the 14 January 2021 the Claimant was on annual leave [ Para 9 of Claimant’s witness statement].(vii) From the 15 January 2021 to the 1 April 2021 the Claimant was absent from work shielding, apart from on the 15 and 21 of March 2021 which were taken as annual leave [Para 10 of Claimant’s witness statement].(viii) The Claimant’s entitlement to his 67 days company sick pay, plus an additional 14 days of fully paid leave granted to all employees if they were absent for covid reasons, then ran out on the 5 February 2021 [P 122 of the bundle] in accordance with the Claimants most recent contract of employment containing his company sick pay entitlement (‘CSP’). From this date until the 2 April 2021 the Claimant was then paid two months extra CSP to take him to the end of his shielding.(ix) From the 2 April 2021 to the 25 of April 2021 the Claimant returned to work on a phased basis [ Para 11 of the Claimant’s witness statement]. From the 26 April 2021 to the 30 April 2021 the Claimant then returned to work on a full-time basis.(x) From the 1 May 2021 to the 21 of June 2021 the Claimant was absent from work for an operation and self-isolated prior to the operation and recuperated following the operation..(xi) On the 1 of May 2021 the Claimant was notified of his mother's death but did not inform the Respondents straight away and stated in his witness statement that, ‘I did not notify my employer of my bereavement straight away,’ [see Para 12 of Claimant’s witness statement].(xii) The Claimant notified the Respondent of his bereavement on the 21 May 2021 by telephone call with Debbie Baddy. [Para 14 of Claimant’s witness statement] and this was 21 days after he learned of his mother’s death.(xiii) The Claimant received his pay slip on the 28 of May 2021 [Para 14 of Claimant’s witness statement].(xiv) It was at this time that the Claimant discovered he was not being paid for the recuperation time following his operation [Para 15 of Claimant’s witness statement] where he asserts: - ‘... until I queried my pay, I was unaware that the previous periods of shielding were being paid with company sick pay and that it would have a negative impact on my overall entitlement. The company maintains they would not be paying sick pay for the period of my operation, the period of recuperation and the time spent shielding immediately afterwards and that I would not be receiving any pay for my bereavement.’(xv) On the 21 June 2021 the Claimant returned to work on a full-time basis. (xvi) On the 29 June 2021 the Claimant raised a grievance [P143]. He asserted that he had been disadvantaged by not being furloughed during the shielding, challenged the classification of his sick days and amongst other things asserted that he had not been paid 4 bereavement days whilst off sick and that he should be paid for those days. He said [P143]: - ‘During the covid pandemic which started at the end of March 2020 I had to shield due to being classed as an extremely clinically vulnerable person by the government and was asked by the company to shield. I was informed that I would be entitled to full company sick pay, but it would come out of my sick pay entitlement. At this point the company could have chosen to furlough me which would have negated the need to use my sick pay entitlement, but they chose not to.’ He went on to say: - ‘As a result of the company not choosing to furlough me, I feel that I have been disadvantaged /discriminated against from other employees in the company due to my disability. I asked the company if I was able to return to work when the last shielding dates were announced but was told that all of the current employees that were shielding had agreed to carry on shielding, so it was advisable that I did as well. I felt that I had no choice but to agree.’ (xvii) Nowhere in the Claimants claim form does he complain of being prevented from being able to return to work by the Respondent. There was nothing about this put to any of the Respondents witnesses during the hearing by his Counsel. It was also not in the list of issues. In any event we do not find that he was prevented from returning to work by the Respondent although this was not an issue set out anywhere in in this case. (xviii) On the 6 of July 2021, he was invited to a grievance meeting [P 144 - 145]. (xix) On the 15 of July 2021 a grievance meeting took place with Linda Rogers accompanied by Simon Archer [P146 -154]. Discussions took place about why it would not have been appropriate for the Respondent to use the furlough scheme for the Claimant who was shielding. (xx) There was then a reconvened grievance meeting on the 23rd of July 2021 [P 155 – 157]. (xxi) On the 26 July 2021 there was an outcome letter sent confirming the grievance was not upheld [P158 to 165]. (xxii) On the 2 August 2021 the Claimant lodged a letter of appeal [P 166]. (xxiii) On the 31 August 2021 there was an appeal meeting with Laura Ball [P169 to 171]. (xxiv) On the 28 of September 2021 there was a reconvened appeal meeting [P 173 – 176]. (xxv) On the 29 of October 2021 the grievance outcome was sent to the Claimant [P 179 – 188] and his appeal was partially upheld, and he was then paid 3 days of the 7 days bereavement leave he was claiming.[11]The Respondent gave evidence at the hearing about its CSP policy. In short, they gave to employees up 67 days of full company sick pay in any one 12- month period for those with the maximum level of service. Those with shorter lengths of service received less on a sliding scale.[12]Linda Rodgers on behalf of the Respondent gave evidence that they did not need to take advantage of the coronavirus government furlough scheme in 2021. She said in her witness statement [Para11]: - ‘Weetabix did not furlough anyone during the pandemic, but I wanted to understand the Claimants perspective’. And [Para12]: - ‘We discussed that furlough was for companies that had needed to close or to reduce the amount of work their employees were carrying out …. however, utilising the furlough scheme was not appropriate for Weetabix as we had more than enough work and in fact work levels were actually increasing’.[13]Evidence was given by Linda Rodgers, and we found, that the Respondent decided that for any employees that were clinically vulnerable and needed to shield due to covid that they would be classed as being on sick leave and would be paid their allowance of CSP depending on eligibility. It was the use of the CSP scheme by the Respondent to pay the Claimant as a shielding employee that was the core issue in this dispute.[14]Evidence was given by Linda Rodgers for the Respondent that, as well as paying full CSP pay to employees who were clinically shielding, they decided that they would pay on top of CSP 14 days paid leave to any shielding employees and any other non-shielding employees who needed to take any time off for other reasons that arose from COVID.[15]In addition, they also decided in the case of the Claimant, to pay him an 2 additional months of CSP, on top of the 67 days CSP and 14 days CSP to take him to the end of the current period of shielding at that time up to the 2 April 2021 when he then started his phased return to work.[16]When Miss Ball, a witness for the Respondent, was asked how they arrived at the 2-month extra period of CSP for the Claimant and she stated that it simply was the amount of time that took the Claimant to the end of his shielding at that point in April 2021.[17]After being back at work for one month the Claimant then had to take more sick leave as he had a planned operation on his back, and he had to self-isolate from the 1 May 2021 in advance of the operation. However, while shielding, as set out above, on 1 May his mother died.[18]On the 5 May the Claimant had the operation and then had to recuperate for a period of 6-8 weeks following the operation. As set out above it was during this time that he discovered he was no longer getting any sick pay and it was not in dispute during the hearing that this came as a complete surprise for the Claimant.[19]As a result the Claimant raised a grievance to his employer and by the time of this hearing the two issues in that grievance, among other things that were no longer in dispute before this Tribunal, were that he had not been paid two weeks bereavement leave, in accordance with the company policy, and only having been paid one week after he appealed was still owed 4 days bereavement leave, and that he should have had full company sick pay during the period of time from the 15 May to the 21 June 2021, a period of 17 extra days.[20]He claimed that a reasonable adjustment should have been made to the CSP policy and that the time he spent shielding should not have been calculated as eating into the 67 days CSP he was entitled to, and that from the 15 May onwards until the 21 June 2021 the Respondents should have paid him the gross sum of £3744.00.[21]Counsel for the Claimant confirmed during the hearing he was not seeking double recovery and that the Claimant only claimed Bereavement Leave pay if his claim for CSP claim failed as they both straddled the same period of time, but that in the alternative he claimed four days bereavement leave in the sum of £888.00. The Law and Conclusions Unlawful Deduction from Wages[22]S.13 of the Employment Rights Act 1996 (‘ERA’) provides as follows: - 13 Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction. …………………………………. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. S.23 of the ERA provides as follows: -[23]Complaints to employment tribunals. (1)A worker may present a complaint to an employment tribunal— (a)that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), ………. 2)Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or …………… (3) Where a complaint is brought under this section in respect of— (a)a series of deductions or payments, or (b)a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. 23. S.27 of the ERA also provides that: - Meaning of ‘wages’ etc.[28](1) In this Part ‘wages’, in relation to a worker, means any sums payable to the worker in connection with his employment, including—[29](a)any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, Time Limits and Jurisdiction Unlawful Deductions and Disability Discrimination Was the claim form submitted more than 3 months after the alleged unlawful deduction from wages? 24. The three-month time limit for presenting a complaint to an employment tribunal where the complaint relates to a deduction by the employer and the operative date from which time starts to run is ‘the date of payment of the wages from which the deduction was made’, in accordance with s.23(2)(a) of the ERA. 25. The question of time limits for wages claims was laid out by the EAT in Taylorplan Services Ltd v Jackson and ors 1996 IRLR 184, EAT. The correct approach, said the EAT, was for the tribunal to ask itself the following questions:(1) Is this a complaint relating to one deduction or a series of deductions by the employer?(2) If a single deduction, what was the date of the payment of wages from which the deduction was made?(3) If a series of deductions, what was the date of the last deduction?(4) Was the relevant deduction under (2) or (3) above within the period of three months prior to the presentation of the complaint? 26. In determining the time limit for the presentation of claims for wages claim care must be taken to determine what type of deduction it is. The EAT in Arora v Rockwell Automation Ltd EAT 0097/06 clarified three types of unauthorised deductions as follows: (a) a straightforward deduction, (b) a payment that is alleged to be a shortfall of what is due and (c) a complete non-payment. 27. The EAT referred to the relevant time limit contained in S.23(2)(a) which provides that a complaint must be presented to a tribunal before the end of the three-month period beginning with the date of the payment of wages from which the deduction was made. 28. In Arora it was stated that an actual deduction in breach of contract, or one where the payment from which the deduction is made has been tendered by the employer, would clearly fall within S.23(2)(a). 29. It was therefore stated that on a proper construction of S.13(3) where it was clear that ‘where the total amount of wages paid on any occasion by an employer to a worker… is less than the total amount of the wages properly payable… the amount of the deficiency shall be treated… as a deduction… on that occasion’.[30]In Arora the underpayment of overtime was therefore a non-payment within the meaning of S.13 (3), and therefore the three-month time limit in that case began to run on the date of payment of the wages from which the deduction was made.[31]In this claim the Claimant was claiming a partial under-payment of his wages, due to the Respondent not paying him for the part of the month in which he took and claimed bereavement leave from the 1 May to the 14 May 2021. This is significant for this claim as in accordance with Arora and paragraph 26(b) and paragraph 30 above we found that this was a partial underpayment of wages. We found this claim therefore amounted to a payment as defined in Arora, and as referred to in paragraph 26 (b) above, in that he claimed he should have been paid wages in full for the month in question and was only paid in part, and it was therefore a payment which was a shortfall of what was due as opposed to a complete non-payment as defined at paragraph 26 (c) above. We return to this below.[32]The Respondents on appeal, and after these proceedings were issued, then paid him for part of the bereavement leave claimed of 3 days leaving a balance due, according to the Claimant, of 4 days.[33]The Claimant in particular claimed bereavement pay for the period 1 May 2021 to the 14 May 2021 as set out in his Schedule of Loss [P54]. If this had been approved by the Respondent on the date that bereavement leave started it would have then been paid on the usual payroll date on or before the 31 May 2021.[34]If limitation had in fact started to run on the date of the alleged underpayment of his wages on or before the 31 May 2021 then primary limitation would expire at the latest on the 30 August 2021. ACAS conciliation started on the 16 August 2021, and if limitation is calculated from the date of the alleged underpayment on the 31 May 2020, then the claim for the unauthorised deductions from wages would be in time.[35]However, the Respondent’s Counsel stated that presumably the 1 May 2021 would be the date of entitlement to the payment as claimed, as approval was required from the 1 May 2021, this being the date claimed from as being the date of the death of the Claimant’s mother and so the Claimants claim was out of time. This was because on this analysis the ACAS notification date would have been three months less 1 day from the 1 May 2021 which would be the 31 July 2021 and ACAS conciliation started on the 16 August 2021 and on this analysis the claim would have been brought out of time by 16 days.[36]Counsel for the Respondent relied on Group 4 Nightspeed Ltd v Gilbert [1997] IRLR 398 on the issue of when the clock started ticking for the purposes of the three-month limitation period. That case concerned a worker who was paid a salary plus a quarterly commission. In practice, the commission was paid with the relevant month's salary – although under the worker's contract it was not strictly due until the last day of the month following the relevant quarter. There was a dispute about the level of commission that had been paid and the Claimant brought an unauthorised deductions claim. The EAT had to decide when time started to run. Was it the date on which the relevant commission payments had been paid into the worker's bank account (20 January 1995) or the date on which payment was due under the contract (31 January 1995)? The EAT held that it was the later date. As a matter of law, it is only when an employer fails to pay a sum due by way of remuneration at the 'appropriate time', meaning the contractual date for payment, that a claim for an unlawful deduction can arise. It was only at that point that the employer could be said to have failed to pay that which was properly payable on a given occasion within the meaning of ERA 1996 s 13(3).[37]Counsel for the Claimant submitted that time began to run on the date of the underpayment which was on the date of the payment of his wages (which we assumed was on or before the 31 May 2021) and was therefore in time.[38]We found that this was a different scenario to the case of Gilbert. This bereavement leave was not a commission payment as in that case, and while it was in effect a contractual right claimed by Claimant, it was still a claim for partial under-payment of his wages based on his usual salary for the time he wanted his bereavement pay, and it was a not performance related payment, such as commission, where pay is related to sales figures and not the agreed salary due, and where payment dates may differ between wages and commission earned as in the Gilbert case.[39]We found that the date limitation started to run was when the Respondent failed, as set out in Gilbert, to pay a sum due by way of remuneration at the 'appropriate time', meaning the contractual date for payment.[40]In this case the ‘appropriate time’ and contractual date for payment was when payroll was run on or before the 31 May 2021 and the partial underpayment occurred, as referred to in paragraphs 26 (b) to 31 above, and so we found this claim was brought in time.[41]We found this case was different to the case of Gilbert where the ‘appropriate time and contractual date’ for payment was at the end of the quarter after the commission was earned. Here the ‘appropriate time and contractual date’ for payment was the date that payroll was run, this being the date contractually that the Respondent was obliged to pay the Claimant in accordance with the terms of his employment, and that was either the week ending the 27 May 2021 or by the 31 May 2021 for the purposes of payroll, and whichever date the Claimant was paid, and the deduction was made, in May 2021, the ACAS notification made on the 16 August 2021 was still made within the primary limitation period, which we found ended at the latest on the 30 August 2021, and thereafter the claim was brought in time.[42]Having found that the claim for unauthorised deductions from wages was brought within the statutory time limits we also find that the claim for a failure to make adjustments contrary to s.20 and s.21 of the EqA was also brought within the statutory time limits. Claim for entitlement to bereavement leave. a) Does the four days’ paid bereavement leave claimed by the Claimant constitute ‘wages’ for the purposes of s.27 ERA 1996?[43]We firstly asked ourselves if they were wages properly payable for the purposes of s.13(3) ERA 1996? We found they were wages for the purposes of s.13 (ERA) as bereavement leave is simply paid leave for a period of bereavement and as such is a payment of his salary at the agreed rate. In any event, it was not in dispute between the parties that the payment of bereavement leave amounted to the payment of wages. (b) If so, was there a deduction of those wages for the purposes of s.13(3) ERA 1996?[44]It was not in dispute that when payroll was run for the period of May 2021 that the Claimant was not paid in full for that month, so we found there was a deduction from the wages of the Claimant for the purposes of s.13(3) of the ERA 1996. In any event, it was not in dispute between the parties that there was a deduction from his wages for this period of time. (c) If so, were those wages properly payable for the purposes of s.13(3) ERA 1996?[45]However, in determining whether the wages for the claimed bereavement leave amounted to wages properly payable for the purposes of s.13(3) ERA 1996 pursuant to the Respondents bereavement leave policy we had to determine if the Claimant had a contractual right to claim and be paid bereavement leave.[46]In Braganza v BP Shipping Ltd [2015] UKSC 17 the Supreme Court dealt with the exercise of discretion under the contract and found that not only must the claimant be able to argue that the decision was unreasonable; they must also demonstrate that it was irrational under the administrative law Wednesbury principles, a much more stringent test to satisfy. The basis of this reasoning was that it must restrict the judge to consideration of the process adopted by the employer, rather than re-making the decision judicially.[47]The policy on bereavement leave [P99] was at page 99 of the bundle. In the Claimant’s contract of employment, it stated that ‘you may be entitled to’ bereavement leave’ …….’.[48]The Claimant accepted during cross examination that he did not tell the Respondent about his mother dying until the 21 May 2021 and we noted she died on the 1 May 2021. He also accepted that he never formally requested bereavement leave at the time.[49]It was the Claimants case that during the period of the 1-21 May he should have had two weeks bereavement leave which amounted to seven days – 3 days in one week and 4 days in the other, this being his usual work pattern.[50]After he raised his grievance, it was upheld in part, and although the Respondent never accepted that they were legally obliged to pay any bereavement leave to the Claimant they decided in any event to pay 3 days. The Claimant contended that only amounted to one week and in effect he should be paid the other four days to represent the week that would have followed the 3-day week.[51]It was the Respondents case that bereavement leave had to be requested at the time the leave was to commence to ensure staff cover and we found that this was a commercially justifiable reason for requiring immediate notification that bereavement leave was being requested.[52]R’s bereavement leave policy is described as discretionary as set out in the wording of the Bereavement Policy [99] which states: 1. Purpose. Weetabix is committed to offering employees the opportunity to maintain a balance between their home and working lives. This policy explains where employees can request discretionary leave to support in a bereavement situation.[53]Counsel for the Respondent stated that it is a pre-condition of the exercise of the discretion that bereavement leave is requested and approved as follows: Approval for leave Any leave in this policy must be approved by your line manager and your Line Manager will notify HR that leave is approved. A request for time off can be refused if a manager feels a request is inappropriate. Should you take leave that is not approved, this will be classed an unauthorised absence and will be managed in-line with the Unauthorised Absence policy.[54]Counsel for the Respondent stated that the Claimant had accepted during cross-examination that bereavement leave had to be requested and had to be approved at the point the leave was to start. It was not in dispute that the Claimant notified the Respondent on the 21 May 2021, some three weeks after his mother's passing, and that the claim must fail.[55]Counsel for the Respondent also said in summary that firstly there was no contractual entitlement, but in any event, it was a precondition to the exercise of any discretion that a request be made and approved. He said a request was not made, and it was not approved.[56]We found that the bereavement policy of the Respondent must oblige any request to be made at the time of the leave required for operational purposes, as was stated in evidence by the Respondents witnesses, and the policy could not apply to requests made after the bereavement leave period claimed for was over [Pg 99-100]. In effect the Claimant was alleging he should be paid for it retrospectively whilst he was at the same time on unpaid sick leave. We found that the request being made after the event of bereavement leave was not validly made.[57]However, despite our finding above we still deal with the issue of whether, in the alternative, if it was validly made whether the discretion was properly exercised by the Respondent.[58]Counsel for the Respondent said that the Claimant had conceded in cross examination, in relation to the bereavement claim, (and the relevant policy [P99], stated that the payment of it is at the Respondent’s ‘discretion’) that payment of it was at their discretion.[59]Counsel for the Respondent also said that for the avoidance of doubt, even if it were a contractual entitlement, it would not be open to the Claimant to challenge the exercise of the discretion based on Wednesbury unreasonableness.[60]In Braganza the Supreme Court held that if what the Claimant is objecting to is the way that the employer exercised a discretion under the contract (to the Claimant’s detriment), it is not enough for the Claimant to argue that the decision was unreasonable; he or she must show that it was irrational under the administrative law Wednesbury principles, a much tougher test to satisfy; the rationale for this is to restrict the judge to consideration of the process adopted by the employer, rather than re-making the decision judicially.[61]Counsel for the Claimant on this point however said that the policy referred to as follows: - Each case will be treated individually and based on its merits however the following level of leave will normally be authorised on the death of an immediate family member of the employee for each bereavement which includes time to attend the funeral. 2 weeks leave.[62]We noted that as the Claimant 's mother lived in Egypt, and as it was during the pandemic, the Claimant did not then travel abroad for the funeral. At this point the Claimant was not at work as he was shielding. He gave evidence however that he did deal with funeral arrangements from the UK.[63]Counsel for the Claimant said that on the point in Braganza that if it was a matter of pure discretion whether to exercise it in the Claimant’s favour it still had to be exercised logically not arbitrarily. He said that the choice of one week’s bereavement leave, rather than two, (and he said he didn’t want to criticise the Respondent’s witness Ms Ball for her sympathy to the Claimant) as per the policy was a figure ‘plucked out of the air.’[64]We did not find the figure was ‘plucked out of the air’ by the Respondent in giving the Claimant one weeks leave and not two weeks. Miss Ball, the appeal hearing manager, explained in evidence that when deciding to show sympathy to the Claimant on this point she thought 1 week’s pay based on a 3-day week would be a fair outcome to his grievance. We found that the Respondent acted generously to the Claimant on this matter when they said that: - ‘Notwithstanding that R is under no obligation to pay C any bereavement leave, pursuant to the grievance appeal outcome letter dated 29.10.21, R has already paid three days’ bereavement leave to C in acknowledgement of the fact that he did inform his line manager that his mother had passed away, and that this must have been an extremely difficult time for him and his family [187].’[65]Counsel for the Respondent also said that, for the avoidance of doubt, hypothetically, had approval been sought and all the facts been put before the Respondent, a decision that it would not have been appropriate to grant such leave would not have been Wednesbury unreasonable. As recorded in the Grievance Appeal outcome it was said that [187]: You also explained to me at our meeting that, owing to the pandemic, your operation, and your own family responsibilities here in the UK, you were unable to take bereavement leave in order to return to Egypt to support your family there and to attend your mother’s funeral.[66]We found that the policy on bereavement leave was a discretionary policy, and we did not find that they applied their discretion in a ‘Wednesbury unreasonable fashion’ by giving him one weeks leave instead of two weeks leave.[67]We accepted the submissions of Counsel for the Respondent on the bereavement and found as follows; -(a) firstly, that it was not a request validly made and so the claim for bereavement leave pay must fail, /or(b) in the alternative this Tribunal having found that this was a discretionary policy, and such discretion was applied reasonably we therefore found that this claim for four days’ pay under this policy fails and the claim for unauthorised deduction for wages is dismissed. Reasonable adjustments under s.20 and s.21 of the EQA 2010 Time limits and Jurisdiction8.3.1 Was the claim form submitted more than 3 months after the conduct complained of?8.3.2 If so, did that conduct form part of a chain of continuous conduct which ended within three months of the claim form being submitted?8.3.3 If so, would it be just and equitable for the Tribunal to hear the claim?[68]Having found that this claim was brought in time for the reasons set out above we find that the claim was not submitted more than 3 months after the conduct complained of. Adjustments under s.20 and s,21 of the EqA 2010[69]Section 20 of the Equality Act 2010 (‘EqA’) defines the duty to make adjustments as follows, 20 Duty to make adjustments:(1) …(2) …(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[70]The reasonable adjustments duty is contained in Section 20 of the EqA and is further amplified in Schedule 8. In short, the duty comprises of three requirements. If any of the three requirements applies, they impose a duty to make reasonable adjustments.[71]Section 21 provides that a failure to comply with one of the three requirements is a failure to comply with the duty to make reasonable adjustments by A (A being the employer or other responsible person) and amounts to discrimination, Section 21(1) and (2).[72]The approach that a Tribunal should take was set out in the judgment of HHJ Serota QC in Environment Agency v Rowan [2008] IRLR 20. We are required to identify:(a) the relevant arrangements (PCP) made by the employer,(b) the identity of non-disabled comparators (where appropriate), and(c) the nature and extent of the substantial disadvantage suffered by the Claimant (as a result of the arrangements). After determining the above, we then must consider whether any proposed adjustment is reasonable; in particular, to determine what adjustments were reasonable to prevent the PCP placing the Claimant at a substantial disadvantage.[73]A substantial disadvantage is one that is more than minor or trivial. Whether or not such a disadvantage exists in a particular case is a question of fact. It is the PCP that must place the claimant at the disadvantage Nottingham City Transport Ltd v Harvey UKEAT/0032/12, and the 2011 Code paragraph 16. Using a comparator may help with this exercise as the purpose of the comparator is to establish whether it is because of disability that a particular PCP disadvantages the disabled person in question, as set out in paragraph 6.16 of the 2011 Code of Practice on Employment.[74]The substantial disadvantage should be identified by considering what it is about the disability which gives rise to the problems and effects which put the claimant at the substantial disadvantage identified, Chief Constable of West Midlands Police v Gardner UKEAT/0174/11.[75]In Griffiths v Secretary of State for Work and Pensions [2014] UKEAT/0372/13, a case concerning the management of sickness absence, it was also explained that the fact that the disabled and non-disabled were treated equally and may both be subject to the same disadvantage when absent in the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled or category of them than it does on the ablebodied.[76]What amounts to a PCP is not further defined within the EqA, though the expression is to be construed broadly, avoiding an overly technical approach. The EHCR’s Employment Code extends to any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications, or provisions. The existence or otherwise of a PCP is to be assessed objectively.[77]In Carerras v United First Partners Research Ltd. EAT 0266/15 the term ‘requirement’ was said to be capable of incorporating an ‘expectation’ or assumption’, which might be sufficient to establish the existence of a practice.[78]The case of Ishola v Transport for London (TfL) [2020] EWCA Civ 112 established that in a reasonable adjustment context, the function of a PCP was to establish what it was about the employer’s treatment of the employee that caused substantial disadvantage to the employee (para. 36). Having regard to the operation of a PCP in the EqA, ‘all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated it if occurred again’. A ‘practice’ connoted ‘some form of continuum in the sense that it is the way in which things generally or will be done’ (para. 38). The ET, therefore, was entitled to conclude that the employer’s failure to investigate CI’s grievance was not a practice of requiring him to return to work without a proper and fair investigation into his grievances as in this case it was a ‘one-off act’. Claim for an extension to the company sick pay policy. The PCP[79]To bring a claim for a failure to make reasonable adjustments under s.20 and s.21 of the EQA the Claimant must first establish what the PCP was that caused him a disadvantage by comparison to non-disabled employees.[80]In relation to the question as to whether the Respondent applied a provision, criterion, or practice (a ‘PCP’) Counsel for the Respondent said the Claimant failed to establish the PCP.[81]The claimed PCP as set out in the List of Issues was as follows: - ‘only paying 67 days’ company sick pay before that entitlement is exhausted’.[82]However, we found that the Claimant was in fact paid 67 days plus 14 days. The extra 14 days was introduced by the Respondent to cover covid. The Respondents witness Linda Rodgers, gave evidence, which we accepted, that the practice for all employees was to allow 14 days paid time off for any covid related issues.[83]In addition, they also granted extra CSP in the Claimants case for another two months which took him to the end of his shielding on the 2 April 2021.[84]We were not given evidence about the remaining approximate 17 employees who were also shielding and nor did we know if any of them exceeded their CSP and were, like the Claimant, granted additional CSP.[85]We therefore found that the PCP relied on of 67 days was not as pleaded and did not exist in that form, as it was 67 days plus 14 days plus in the Claimant’s case another two months and this was not as defined in the claim form. This was not disputed during the hearing and the stated PCP in reality was not applied to the Claimant as he was given significantly more CSP. Instead of 67 days he got around 141 days CSP.[86]Due to finding that the way the PCP was pleaded by the Claimant was not made out by him in this claim we did not find such a PCP was applied to him.[87]In fact, it was not at all clear to this Tribunal what the actual PCP was that was applied by the Respondent generally when this claim arose during the covid period, and we found there was no fixed PCP. For example, other employees may have, according to their circumstances received more than an additional two months on top of their allowance and the 14 days extra covid days, to take them to the end of their shielding, or they may have received much less.[88]In any event, and in the alternative, regardless of what we found above about the lack of the stated PCP being applied to the Claimant, we then went on to consider if he was at a disadvantage because of the stated PCP of not extending CSP beyond 67 days?[89]We found that he was at a disadvantage, and the Claimant said that: - ‘as a disabled person he was at a particular disadvantage through this PCP because he was required to shield during the pandemic as a result of his disability… he was disadvantaged because he had no CSP to use in cases of actual sickness because his entitlement had been exhausted whilst shielding.[90]The reasonable adjustment contended for was that the Respondents should have done as follows: - a) ‘made a reasonable adjustment to remove this disadvantage by agreeing not to include days where CSP was paid during periods of shielding when calculating his remaining CSP entitlement for the purposes of paying sick pay for other absences’.[91]On the issue of whether it would have been a reasonable adjustment to extend his company sick pay to cover his later operation in 2021, for which he was not paid, Counsel for the Respondent took us to a number of cases: - (a) While extending sick pay for a disabled employee is not precluded, it would be a rare and exceptional case that it would amount to a reasonable adjustment: see O'Hanlon v Comrs for HM Revenue & Customs [2007] IRLR 401 and Meikle v Nottingham County Council [2004] IRLR 703, as helpfully rationalised by the Court of Appeal in O’Hanlon at paras 70-74: - ‘It was never suggested that the adjustment lay simply in granting full pay. Liability arose because of the failure to make reasonable adjustments to accommodate her back into the classroom’. (c)In O’Hanlon per Hooper LJ it was said that: - ‘In our view, it will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disabilityrelated absences, would be considered necessary as a reasonable adjustment. We do not believe that the legislation has perceived this as an appropriate adjustment, although we do not rule out the possibility that it could be in exceptional circumstances. We say this for two reasons in particular. The first reason, set out in detail in para 68, ‘the tribunals would be entering into a form of wage fixing for the disabled sick’. The second, set out at para 69, is that the ‘purpose of this legislation is to assist the disabled to obtain employment and to integrate them into the workforce.’[92]One exceptional case was G4S Cash Solutions (UK) Ltd v Powell [2016] IRLR 820 and which involved an engineer who following a back injury was reassigned to a less well-paid role but with his pay preserved. After a year in the adjusted position the employer wanted to reduce his pay. Mr Powell succeeded before the EAT in contending that it was a reasonable adjustment to continue his pay protection. HHJ Richardson, considering the statutory guidance and the previous case law, held at para 44: 'I can see no reason in principle why section 20(3) should be read as excluding any requirement upon an employer to protect an employee's pay in conjunction with other measures to counter the employee's disadvantage through disability. The question will always be whether it is reasonable for the employer to have to take that step.'[93]At para 60 he concluded that: - ‘whilst not an everyday event for an employment tribunal to conclude that an employer is required to make up an employee's pay long-term to any significant extent – but I can envisage cases where this may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments to get an employee back to work or keep an employee in work’.[94]Counsel for the Respondent concluded that it was however never part of the Claimant’s case that extending CSP would help him get back to work.[95]Counsel for the Claimant said that this was an exceptional case that permitted us to find that such an adjustment would have been reasonable. He said that the Claimant was in a disadvantaged situation compared to those that didn’t have his disability and therefore did not need to shield because they hadn’t used up all their company sick pay under the heading of ‘pandemic sick’ and he referred to the blue box in the table produced by the Respondent which was in the bundle [P 163-165]. He submitted that was the Claimant’s disadvantage i.e., their policy had been 67 days of company sick leave used up not to be extended.[96]He submitted that as soon as the Claimant’s ordinary but not pandemic sick leave was not then extended again, and ordinary sick leave was denoted in the yellow box, which was when he was recovering from his operation in May 2021, that a step could have been taken to extend sick pay for the yellow box ordinary sick leave, or when calculating if there was still some entitlement left to, in effect, not to then say ‘you have been depleted by pandemic sick leave’ and that this was a step that could be taken, and that this was a reasonable adjustment that could have been made.[97]In relation to O Hanlan Counsel for the Claimant stated that we were not bound by this and referred to the later case of Griffiths. This case involved a disabled person hitting trigger limits, and Counsel submitted that it is a valid step to amend trigger limits, and that O Hanlan doesn’t stop that. He said in Griffiths if you doubled the trigger limits it didn’t save her but that the principle was there.[98]Counsel for the Claimant submitted that in this case extending sick pay, and in effect discounting the pandemic sick leave when he had to shield, and therefore use up his CSP when he wasn’t in fact sick but was instead clinically vulnerable, was a step that can and should have been taken as a reasonable step and was a reasonable adjustment that should have been made by the Respondent.[99]Counsel for the Claimant went on to say that O Hanlan does say not it is a complete barrier to extending sick pay and there can be such an extension in exceptional circumstances, He said we had here a pandemic which was exceptional circumstances. This resulted in pandemic sick shielding for vulnerable employees which ate up the whole of the Claimants 67 days CSP. He said that because of the system chosen by the Respondent’s covid committee as to how shielders were going to be financed this meant a point was hit where CSP was not paid due to being depleted by covid shielding.[100]Counsel for the Claimant went on to say that the Respondents gave evidence that they did not want employees to come back unless they wanted to and they didn’t want them to come back simply for lack of pay when shielding, hence the extra two months given to the Claimant to the 2 April 2021.[101]Counsel for the Claimant stated that his argument was that the adjustment for the ordinary CSP [yellow pay in the table] applied with equal force to someone having an operation and recuperation, and why could the Respondent not apply the same policy of adjustment by paying full CSP to that yellow pay period as they did to the prior shielding employees [the blue shielding pay in the table].[102]Counsel for the Claimant concluded by tying the table in the bundle back to s.20 of the EqA, in that he contended that for the pleaded PCP they sought an extension of CSP and submitted that the disadvantage to the Claimant was clear in that no sick pay was paid to the Claimant for the yellow period, and that it was a valid reasonable step i.e. a reasonable adjustment which should have been taken to extend sick pay from the 15 May 2021 to the 21 June 2021 and pay him the extra 17 days at full pay.[103]Counsel for the Claimant said this failure to pay the extra 17 days CSP was sufficient to transfer the burden of proof onto the Respondent to show why it was unreasonable of the Respondent to refuse to extend the CSP scheme.[104]Counsel for the Claimant said the reason they didn’t want to extend payment of CSP was because in essence that felt they had already been generous enough but in his submission that was not sufficient.[105]He said no evidence had been given anywhere about the Respondent not being able to afford this, and we assume that he was referring to the potential defence of the PCP being a proportionate means of achieving a legitimate aim. He said their evidence was simply that they had already extended CSP for the Claimant twice i.e., an extra 14 days and then an extra two months in the CSP window.[106]We found that the Respondent having already paid the Claimant 67 days plus 14 days plus 2 months in his case, and even if the pleaded PCP, contrary to what we found above, was made out, that if we had accepted the submissions by Counsel for the Claimant and found instead that all shielding sick leave should have been stripped out of the calculation so that the Claimant was paid the claimed 17 days to the 21 June 2021, that this Tribunal would have been entering into the very ‘wage fixing’ referred to in the case of O Hanlon. This adjustment was not about helping him to get back to work in any way it was a simple financial issue for the Claimant, and it was about improving his financial situation.[107]We considered the case of Griffiths which Counsel for the Claimant said assisted the Claimant. However, in Griffiths on the last part of the test as to whether the adjustments to the trigger points sought in that case were reasonable or not, we noted that was a case about whether once trigger points were hit the Claimant was then dismissed and that case was about extending the trigger points to avoid dismissal.[108]Griffiths can be distinguished from this case as, in our view, this case is simply about giving the Claimant more pay for being off sick once the allowance under the CSP scheme had been used up and was not about avoiding the dismissal of the Claimant.[109]In any event, in the alternative, even if the same argument in Griffiths could be deployed in this case, we were mindful of the fact that this was a longterm condition that the Claimant had, and the Respondent had already added an extra 14 days and then two months to allow for the covid effects on shielding employees. We did not find it a reasonable adjustment for an employer of an employee with a long-term disability to extend the CSP scheme again at this point, after it had already extended it twice.[110]We could not accept the submission by Counsel for the Claimant that a reasonable adjustment was to strip out shielding sick leave so that the pot of 67 days was left or to simply extend the CSP leave period which amounted to the same thing.[111]The Claimants counsel said this was an exceptional circumstance type of case i.e., the pandemic. However, we found that whilst Covid-19 was an unforeseen event the situation of the Claimant who had used up his CSP to shield did not in our view amount to an exceptional case.[112]There was some discussion about whether the Claimant should have been furloughed to avoid the using up of his CSP when shielding but Counsel for the Claimant confirmed at the end of the hearing that was not an issue relied on in the Claimant’s claim nor an adjustment sought i.e., that he should have been furloughed and paid at 80% of his wages instead of being 100% CSP and so we do not address that issue in this Judgement.[113]We therefore find this claim for reasonable adjustments and the Claimant’s claim for additional CSP also fails and is dismissed. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the Written Reasons signed on the 12 September 2023 and COSTS JUDGMENT
Findings of Fact
[1]The application for costs made by the Respondent against the Claimant in the sum of £20,000.00 fails, and there is no order for costs.
Introduction
[2]Judgement was sent to the parties on the 14 August 2023, and written reasons were requested in accordance with Rule 62(3) of the Rules of Procedure 2013, and the written reasons were provided and sent to the parties on the 14 September 2023.[3]By a costs application made by the Respondent on the 11 September 2023, and following the conclusion of the hearing on the 28 June 2023 but not brought to this Tribunals attention until the 30 July 2024, the Respondent applied for costs against the Claimant in the sum of £20,000.00.[4]The final hearing of this matter took place in person over three days in Cambridge between the 26-28 June 2023. Oral Judgment was given and the Claimant’s claims for a failure to make reasonable adjustments, unfavorable treatment arising from disability, and unauthorized deductions all failed and were dismissed.[5]The basis of the Respondents application was as follows:-(i) the Claimant has acted unreasonably in bringing the proceedings against the Respondent (Rule 76(1)(a) of the ET Rules); and(ii) the Claimant’s claim had no reasonable prospect of success (Rule 76(1)(b) of the ET Rules). We request that this application is determined on the basis of written representations only, so as to avoid the need for the parties to attend a hearing and incur the additional associated costs. No Reasonable Prospect of Success / Unreasonable Conduct The Respondent has always maintained that the Claimant’s claim had no reasonable prospect of success, and, accordingly, that it was entirely unreasonable for the Claimant to have continued to pursue his claim against the Respondent. Having formed this view, the Respondent then made significant efforts to draw this fact to the Claimant’s attention. In particular, the Respondent wrote to the Claimant, via his representative, on two occasions on a without prejudice (save as to costs) basis: On 7 January 2022, after the Claimant’s claim was received on 23 November 2021 – this letter explained that, having considered the Claimant’s pleaded claim, and in light of its grievance appeal outcome letter dated 29 October 2021, the Respondent had formed the view that the Claimant’s claim had no reasonable prospect of success. In particular, the Respondent explained: In respect of the Claimant’s claim for unlawful deduction of wages, that it considered that this claim would fail on the basis that: (i) the Claimant, contrary to the Respondent’s bereavement leave policy, did not “formally request or take any bereavement leave in order to support his family or to attend his mother’s funeral”; and (ii) the Respondent had already made a discretionary payment of three days’ bereavement leave to the Claimant when it was under no obligation to do so. In her oral judgment dismissing the Claimant’s claim, Employment Judge L Brown addressed these exact points, finding that: (i) the Claimant did not make a valid request for bereavement leave; and (ii) the Respondent had acted “generously” in making a discretionary payment of three days’ bereavement leave to the Claimant. In respect of the Claimant’s claim for failure to make reasonable adjustments, that it considered that this claim would fail on the basis that: (i) the Respondent had already paid the Claimant two-and-a-half months’ additional company sick pay over and above his contractual entitlement; and (ii) the Claimant’s suggestion of discounting the days that he was absent from work shielding for the purposes of calculating his entitlement to company sick pay was not a reasonable adjustment (as per O’Hanlon v Commissioners for HM Revenue & Customs [2007] EWCA Civ 283; [2007] IRLR 404). Again, in her oral judgment dismissing the Claimant’s claim, Employment Judge L Brown addressed these exact points, finding that, in circumstances where the Respondent had already paid the Claimant over and above his contractual entitlement to company sick pay, if the Tribunal had decided to extend the Claimant’s sick pay period again, it would have risked entering into the same ‘wage fixing’ warned against in O’Hanlon, and that it would not have helped the Claimant to return to work (and instead this was just a “financial issue” for the Claimant).• On 6 June 2023, around three weeks before the final hearing in this matter – this letter explained that the Respondent’s view remained that the Claimant’s claim had no reasonable prospect of success, and that nothing had emerged through the disclosure process, and there was nothing in the Claimant’s witness statement, that had persuaded the Respondent to change its view. The letter also explained that the Respondent was due to incur its Counsel’s brief fee over the following two weeks, and therefore that this was, in effect, the final opportunity for the Claimant to withdraw his claim without risking costs consequences. Both letters made clear that if the Claimant did not withdraw his claim and it was subsequently unsuccessful at the Employment Tribunal, then we would be advising our client to make an application for an Order that the Claimant paid the legal fees and other costs that our client had incurred (and would continue to incur) in defending the Claimant’s claim. The Claimant’s representative did respond to our first letter on 28 January 2022, also on a without prejudice (save as to costs) basis, but did so in order to dismiss the points raised in our letter dated 7 January 2022 and to reject our offer of a ‘drop hands’ settlement. As noted above, Employment Judge L Brown ultimately agreed with our interpretation of what is, in our view, settled law in respect of these claims. Copies of both of our letters are enclosed with this application, together with a copy of the response from the Claimant’s representative dated 28 January 2022. The Respondent avers, therefore, that, in light of clear correspondence outlining why the Claimant’s claims would fail, and despite retaining the benefit of representation throughout these proceedings, in failing to withdraw his claim and continuing to pursue the proceedings against the Respondent, the Claimant has acted unreasonably. Application for Costs The Respondent further avers that the Claimant’s unreasonable conduct has led to the Respondent incurring significant legal costs from 17 January 2022 onwards, this being the first working day after the deadline for the Claimant to respond to the Respondent’s initial settlement offer (which was 14 January 2022). These costs total £25,637.48, and they include costs in dealing with disclosure, preparation of the final hearing bundle, preparation of witness statements, and attendance at the final hearing from 26 to 28 June 2023 (including Counsel’s costs). The Respondent therefore requests that the Tribunal makes a costs award against the Claimant in the sum of £20,000, on a summary assessment basis, in accordance with Rule 76 of the ET Rules. Application for Costs The Respondent further avers that the Claimant’s unreasonable conduct has led to the Respondent incurring significant legal costs from 17 January 2022 onwards, this being the first working day after the deadline for the Claimant to respond to the Respondent’s initial settlement offer (which was 14 January 2022).[6]In response the Claimants Trade Union representatives made the following points:- We object to the Respondent’s application for a costs order under r.76(1)(a) and r.76(1)(b) of the Employment Tribunal Rules. In their application dated 11 September 2023, the Respondent makes its application on the basis of either the Claimant acted unreasonably in bringing proceedings or that the claim had no reasonable prospect of success. We do not intend to rehearse the facts of this case as set out in the panel’s judgment but in summary the case arose against the unforeseen background of the Covid pandemic. The Claimant was immunocompromised, and it was accepted that he fell within the definition of someone who was clinically extremely vulnerable at that time. The government had advised such people to ‘shield’ which meant taking certain precautions to avoid the risk to their health including by not attending their workplace. The Claimant’s workplace remained open but in accordance with the guidance, he could not attend. The Respondent covered the absence by implementing the Company’s sick pay provisions, although technically the Claimant was not ‘sick’, he was ‘shielding’. It is accepted that the Respondent paid for a period in excess of the 67 days and so the whole period of ‘shielding’ was paid. However, shortly after the end of shielding, the Claimant had an operation related to his disability. For obvious reasons that could not have happened during his time shielding. Medically, the Claimant required a further 17 days away from work post-operatively to recuperate and to avoid the risk of infection due to his heightened vulnerability. However, as the original limit of 67 days payable for sick leave in any one year had been exceeded by ‘shielding’ this meant that for his 17 days absence he received no pay. The situation had arisen not because he was sick but because he was following the government guidance as a disabled person. He felt that his treatment was different to that of colleagues who were not disabled and did not have to ‘shield’ and therefore he began proceedings against his employer. Whilst the panel found that the pandemic did not give rise to ‘exceptional’ circumstances which was referred to in the authority of O’Hanlon, the Claimant reasonably believed that his circumstances were different to Mrs O’Hanlon who had been sick for the whole of her absence and wanted sick pay extended. We believe that it was reasonable for the Claimant to test the point in a tribunal. Therefore, we ask the tribunal to find that the Claimant did not act unreasonably in bringing proceedings or that the claim had no reasonable prospect of success. If the tribunal believes that the threshold of r.76(1)(a) or r.76(1)(b) is met for a costs order to be made, then the Claimant would ask the tribunal not to exercise its discretion to make a costs order. The Claimant accepts that the Respondent sent two costs warning letters (7 January 2022 and 6 June 2023). A reply was provided to the first letter and was attached to the Respondent's costs application. As the contents of the reply remained valid in relation to the second letter, no response was provided to the second letter. As they are entitled to the Respondent was presenting a ‘robust’ defence to the claim by asking the Claimant to discontinue. The claim itself was for 17 days pay (£3774 gross) or in the alternative, 4 days pay (£880 gross) plus some injury to feelings (Schedule of Loss on p.54 of the bundle). The Claimant is a little surprised at the commercial wisdom of spending over £25,000 against such a small claim. The Claimant continues in the Respondent ’s employment. He continues to be disabled. He is a factory operative. We will be providing a Schedule of his earnings and assets. We suggest that his continued employment is a matter that the tribunal are entitled to consider which approaching the matter of discretion as it cannot be ruled out that he will need to ask for adjustments for his disability in the future and a costs order would make it less likely that he would feel able to approach his employer. Further, we suggest that the tribunal are able to consider his earnings against which costs of £25,000 is a very substantial sum. Whilst the terms of the Unions assistance mean that we indemnify him for costs, we are a non-profit organisation. Finally, the Respondent has sent a breakdown of the costs charged. Whilst it is accepted that it difficult to compare costs of a solicitor firm with those recorded by a trade union the time costs for the case handler at the trade union were significantly lower, with most of the work done in house by a salaried employee. The costs schedule from the Respondent only records fees and not time, although that could be deduced from the amount each lawyer had charged. It appears that the time spent by the Respondent’s solicitors was possibly excessive, although it is accepted they had conduct of putting together the bundle. Further, the Claimant’s barrister (call 1988) charged £1700 plus VAT so there quite a disparity with Respondent’s Counsels fees.
The Law
[7]Rule 75 ET Rules provides: (1) A costs order is an order that a party ('the paying party') make a payment to— (a) another party ('the receiving party') in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative.[8]The power to make a costs order is in Rule 76 which provides: (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;[9]Rule 84 ET Rules provides: “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay”.[10]In Gee –v- Shell UK Limited [2003] IRLR82 Sedley LJ said: “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers and that in sharp distinction for ordinary litigation in the United Kingdom losing does not ordinarily mean paying the other side’s costs”.[11]Costs orders are the exception rather than the rule in employment tribunal proceedings, but that does not mean that the facts of the case must be exceptional (Power v Panasonic (UK) Ltd UKEAT/0439/04).[12]Such awards can be made against unrepresented litigants, including where there is no deposit order in place or costs warning (Vaughan v London Borough of Lewisham UKEAT/0533/120).[13]In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” bears its ordinary meaning and should not be taken to be equivalent of “vexatious” (National Oilwell Varco UK Ltd v Van de Ruit UKEAT/0006/14).[14]In Millan v Capsticks Solicitors LLP & Others UKEAT/0093/14/RN the then President of the EAT, Langstaff J, described the exercise to be undertaken by the Tribunal as a 3-stage exercise, which in essence is as follows:14.1 Has the putative paying party behaved in the manner proscribed by the rules?14.2 If so, it must then exercise its discretion as to whether it is appropriate to make a costs order, (it may take into account ability to pay in making that decision).14.3 If it decides that a costs order should be made, it must decide what amount should be paid or whether the matter should be referred for assessment, (again the Tribunal may consider the paying party’s ability to pay).[15]In Scott v Inland Revenue Commissioners 2004 ICR 1410, CA: Lord Justice Sedley observed that ‘misconceived’ for the purposes of costs under the Tribunal Rules 2004 included ‘having no reasonable prospect of success’ and clarified that the key question in this regard is not whether a party thought he or she was in the right, but whether he or she had reasonable grounds for doing so. The Court of Appeal held that the employment tribunal’s decision in this particular case not to award costs against S should be reconsidered, as it was not clear that the tribunal had directed its attention to the questions of whether S’s case was doomed to failure or, if it was, from what point.
Conclusions
[16]There are three stages in determining whether or not to award costs under Rule 76 ET Rules; first, whether the party has reached the threshold of establishing that a party had acted vexatiously, abusively or disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; and that a claim had no reasonable prospects of success. Second, if the threshold has been reached, the tribunal will go on to consider whether it is appropriate to make an order for costs. Finally, if it is appropriate to make an order for costs, the tribunal will go on to consider the amount of such order. Threshold - Are There Grounds for Making a Costs Order?[17]It is incumbent on the Tribunal to satisfy itself that the conditions in Rule 76(1) (a) and (b) apply before any order can be considered.[18]The Claimants conduct was impugned in relation to the assertion that it was unreasonable of him to bring the proceedings under Rule 76.1(a) in that it was said it fell into the category of whether or not, ‘ a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conducting of proceedings (or part thereof) — rule 76(1)(a) and they also said that pursuant to rule 76(1)(b) that there were ‘..no reasonable prospects of success..’[19]We did not find that the Claimant ‘acted… unreasonably in the bringing … of the proceedings,’ or that there were ‘… No Reasonable Prospects of Success.’[20]In the Respondents submissions they said in particular as follows:- ‘ No Reasonable Prospect of Success / Unreasonable Conduct The Respondent has always maintained that the Claimant’s claim had no reasonable prospect of success, and, accordingly, that it was entirely unreasonable for the Claimant to have continued to pursue his claim against the Respondent.[21]In setting out their application in this way the same arguments then pursued were applied to both s.76(1) (a) and (b) by the Respondents.[22]We therefore asked ourselves was the bringing of these claims by reference to the alleged weakness in them all such so as to mean that the very bringing of the claims amounted to unreasonable conduct? In addition we asked ourselves at the same time, as the same question overlapped with the first question, whether the claims never had any reasonable prospect of success? In particular in accordance with the case of Scott v Inland Revenue Commissioners, which although it preceded the 2013 Rules of Procedure still sets out the pertinent test in these types of costs applications which is were the claims brought by the Claimant always ‘doomed to failure’ or did they become doomed to failure at some point in the case?[23]The Respondent averred that the claim failed for the very reasons they said it would fail, and they recited this Tribunals judgment setting out that their predictions of why it would fail were in effect the bedrock of our Judgment.[24]It is of course correct that the claim failed in part on the claim for a failure to make reasonable adjustments because of the leading case of O’Hanlon v Commissioners for HM Revenue & Customs [2007] EWCA Civ 283; [2007] IRLR 404.[25]However it cannot in our judgement have been a foregone conclusion that all the claims would fail. This was dependent on our findings of fact and the oral evidence we heard. None of the claims were doomed to failure at any point in the judgement of this Tribunal.[26]In relation to the unauthorized deduction from wages claim and in relation to the bereavement leave this rested on findings of fact that we made on the circumstances at the time that the bereavement leave was requested, and whether the three days they granted him were compliant with their policy. We had to interpret how the policy worked, which was a discretionary policy, and how it was applied in the circumstances of his particular bereavement leave that he requested while on unpaid sick leave. In particular we made a finding that the request for bereavement leave could not be made retrospectively, as occurred in this case, and that in order for it to be validly made it had to be made in advance.[27]We also, on the issue of limitation on this claim, had to decide if the exercise of discretion under this bereavement policy was exercised at the date the request was refused or was exercised at the date of the failure to pay him the bereavement pay. We found that in this case that time started to run when he was not paid in full for the bereavement leave he requested on the date payroll was run that month, and on the date he was in fact paid, and it was therefore brought in time.[28]Whilst the claim for payment for bereavement leave in full ultimately failed we did not find it was unreasonable of the Claimant to bring the claim. It was a very fact specific Judgment that we reached, and which also depended on our interpretation of the wording of the policy, and to some extent on the oral evidence we heard from the Respondents. We did not find that the Claimant acted unreasonably in bringing this claim nor did we find that it had no reasonable prospects of success from the outset to conclusion.[29]On the claim brought for the failure to make reasonable adjustments, by extending the company sick pay policy, we had to judge if such an adjustment contended for was reasonable. We found that he had already been given 67 days plus another two months sick pay when having an operation and recovering, plus another 14 days for shielding during Covid, and that the contention that it should be extended further was not a reasonable adjustment that the Respondents should have to make.[30]We also considered the argument that this use of company sick pay under the Respondent’s policy occurred during the covid pandemic and the pandemic itself was an extraordinary event. In our judgement the Covid pandemic was an extraordinary event, but it was not in and of itself extraordinary for the claimant to have to shield and use up his company sick pay.[31]However we did not find it unreasonable for him to bring a claim that his time spent shielding should not be deducted from his company sick pay allowance by virtue of him being immunosuppressant. In particular reference had been made in submissions by the Claimant to the case of G4S Cash Solutions (UK) Ltd v Powell [2016] IRLR 820 which involved an engineer who, following a back injury, was reassigned to a less well-paid role but with his pay preserved. After a year in the adjusted position the employer wanted to reduce his pay. Mr Powell succeeded before the EAT in contending that it was a reasonable adjustment to continue his pay protection. HHJ Richardson, considering the statutory guidance and the previous case law, held at para 44: 'I can see no reason in principle why section 20(3) should be read as excluding any requirement upon an employer to protect an employee's pay in conjunction with other measures to counter the employee's disadvantage through disability. The question will always be whether it is reasonable for the employer to have to take that step.'[32]This was a finely balanced decision in this case as there was at least some force in the argument that an unwell disabled claimant should not be required by its employer to use up their company sick leave entitlement when they were clinically vulnerable due to an unexpected event such as an pandemic and that the employer should have taken a further step of stripping out the shielding sick leave that the Claimant had been obliged to take when calculating his entitlement.[33]Ultimately we found that while the pandemic itself was extraordinary many clinically vulnerable employees had to shield and this fact of the Claimant having to shield and thus lose some company sick pay allowance was not of itself extraordinary. However this was not a forgone conclusion that the fact of the covid pandemic and him having to shield was not extraordinary. We spent some time deliberating over this and whether it was a reasonable adjustment that the Respondents should have made to extend his company sick pay further. It was not a claim that in our judgement should never had been brought, and that was unreasonably brought, and we find that he was entitled to test this point in Tribunal.[34]We did not find that the Claimant acted unreasonably in bringing this claim nor did we find that it had no reasonable prospects of success from the outset to conclusion.[35]As to the claim for unfavorable treatment arising from disability we had to judge whether or not the detriment he complained of, i.e. losing his company sick pay due to having to shield, was something that could be justified as a proportionate means of achieving a legitimate aim by the Respondent. This was fact sensitive and depended on the evidence that was before us, i.e., what were the consequences of extending any company sick pay further for the Claimant, and how did the Respondents reach that decision? The outcome of this claim was also not a foregone conclusion. It depended on the oral evidence of the Respondents and the justification of the decisions taken.[36]We did not find that the Claimant acted unreasonably in bringing this claim nor did we find that it had no reasonable prospects of success from the outset to conclusion and in particular we found that at no time were the claims ‘doomed to failure’.[37]We therefore find that under Rule 76.1 (a) and (b) the claims did have reasonable prospects of success from the outset to conclusion, and that the Claimant did not act unreasonably in the bringing of the proceedings, and that the threshold test was not reached for making a costs order under these two limbs.[38]The application for a costs order of £20,000.00 against the Claimant is therefore refused.