Case No 4105000/2018Venue GlasgowHearing 18, 19 and 20 February 2019 (Final Hearing); 19 July 2019 (Closing Submissions); 24 and 26 July 2019, and 2 August 2019 (Written Representations); 30 August 2019 and 5 February 2020 (Members’ Meetings)
Employment Judge I McPhersonMs K Yuill and Ms E Withers for claimantStudent Advisors for claimantStrathclyde University for claimantLaw Clinic for claimantOdyssey Enterprises Ltd Respondents for claimantRepresented by: for claimantMs R Mohammed for claimantConsultant for claimantCroner Group Ltd for claimantDate 11 February 2020
JUDGMENT
The unanimous Judgment of the Employment Tribunal is that: -(1) On the evidence led before the Tribunal, the Tribunal finds that the claimant was unfairly dismissed by the respondents, contrary to Sections 94 and 98 of the Employment Rights Act 1996, on 17 September 2018, and that that date was the effective date of termination of his employment with the respondents, and not 12 December 2018, as asserted by the respondents. E.T. Z4 (WR)(2) Further, the Tribunal finds that the claimant’s dismissal on 17 September 2018 was an act of victimisation by the respondents, contrary to Section 27 of the Equality Act 2010, and that the claimant was discriminated against by the respondents, by reason of his protected act, done in good faith in May 2018, when he presented his first claim to the Employment Tribunal against the respondents complaining of alleged race discrimination.(3) In respect of the claimant’s unfair dismissal by the respondents, the Tribunal finds that the claimant is entitled to financial compensation for unfair dismissal, as also a separate award of compensation for injury to feelings in respect of the unlawful act of victimisation.(4) The Tribunal directs that, unless parties can mutually agree the quantum of compensation payable to the claimant, within 28 days of issue of this Judgment, and agree matters extra-judicially between themselves, through ACAS, or application to the Tribunal, under Rule 64 of the Employment Tribunals Rules of Procedure 2013, for a Consent Judgment to be made by the Tribunal, the Tribunal will assign a one-day Remedy Hearing before the same Tribunal on a date to be hereinafter assigned.(5) In that event, the Tribunal will allow further evidence from both parties on the matter of remedy only, to take account of the respondents’ arguments that any financial compensation for unfair dismissal due to the claimant should be reduced on account of his contributory conduct, and / or the Polkey principle, and that any compensation for injury to feelings should likewise be reduced on account of contributory conduct.(6) Further, on the evidence led before the Tribunal, the Tribunal also finds that the claimant was subjected to a series of unlawful deductions from his wages, contrary to Section 13 of the Employment Rights Act 1996, and the respondents are ordered to pay to him the sum of SEVEN THOUSAND, THREE HUNDRED AND NINETY NINE POUNDS, NINETEEN PENCE (£7,399.19)(7) Finally, on the evidence led before the Tribunal, the Tribunal finds that the claimant’s complaint that he is owed outstanding holiday pay for the holiday year 2008, in terms of the Working Time Regulations 1998, is not wellfounded, and that part of his claim is accordingly dismissed by the Tribunal, with no order for payment made against the respondents.
REASONS
[1]This case called again before us on the morning of Monday, 18 February 2019, for a 3-day Final Hearing, further to a discharged Final Hearing on 18 October 2018, as per a Notice of Final Hearing issued by the Tribunal to both parties’ representatives on 29 November 2018.[2]It was listed for full disposal, including remedy, if appropriate. By amended Notice of Final Hearing, issued by the Tribunal on 29 January 2019, those same 3 dates were assigned to hear both this case, and a further claim brought by the claimant under case number 4123692/2018, with both cases being combined by the Tribunal to be heard together at this Final Hearing.
Background
[3]Following ACAS early conciliation between 5 April and 5 May 2018, the claimant, then acting on his own behalf, presented his ET1 claim form to the Tribunal on 30 May 2018.[4]He complained of alleged unfair dismissal, although stating his employment as a resource and recruitment consultant was continuing, and he further complained of unlawful deduction from wages, seeking £6,009.25 as alleged unpaid wages. He also complained of racial discrimination, by the respondents, although providing no specification of the alleged discriminatory treatment.[5]That claim was accepted by the Tribunal, on 7 June 2018, when a Case Management Preliminary Hearing was assigned for 8 August 2018, and while a copy of that claim was sent to the respondents, on 7 June 2018, it appeared to the Tribunal that they had failed to lodge an ET3 response by the due date of 5 July 2018.[6]When the casefile was referred to Employment Judge Jane Garvie, because it appeared that no ET3 had been received, she instructed that if the respondents wished to lodge an ET3 response, then they must provide it, together with a written explanation why it was not lodged in time by 5 July 2018. Her instructions were intimated to the respondents by a letter from the Tribunal dated 9 July 2018.[7]By a separate letter from the Tribunal, dated 9 July 2018, the claimant was advised that, while no response to his claim had been received, Judge Garvie had directed that the case proceed to the listed Case Management Preliminary Hearing on 8 August 2018.[8]However, it later emerged that the respondents had in fact, on 5 July 2018, per their director, Dr Karen Wilson, lodged an ET3 response, resisting the claim. That response was accepted by the Tribunal, on 16 July 2018, and a copy sent to the claimant.[9]When the casefile in that first claim was referred to Employment Judge Frances Eccles, for Initial Consideration, she directed that the claim and response proceed to the listed Case Management Preliminary Hearing on 8 August 2018. The claimant, and Dr Wilson for the respondents, were so advised by letter from the Tribunal dated 21 July 2018.[10]When the case called before Employment Judge Garvie, on 8 August 2018, for that listed Case Management Preliminary Hearing, the claimant had instructed Livingstone Brown, solicitors, Glasgow, to act for him, and their Ms Kathryn Allen appeared on his behalf, with Dr Wilson appearing for the respondents.[11]Judge Garvie issued a written Note and Orders of the Tribunal, dated 9 August 2018, which was issued to parties’ representatives by the Tribunal’s letter of 9 August 2018. On 16 August 2018, the case was then relisted for a further Case Management Preliminary Hearing to be held on 14 September[12]When the case called before Employment Judge Ian McPherson, on 14 September 2018, for that further listed Case Management Preliminary Hearing, the claimant was again represented by his solicitor, Ms Allen, with Dr Wilson again appearing for the respondents.[13]Judge McPherson issued a written Note and Orders of the Tribunal, dated 18 September 2018, which was issued to parties’ representatives by the Tribunal’s letter of 19 September 2018.[14]At that stage, the case was listed for a 2-day Final Hearing before a full Tribunal on 18 and 19 October 2018, in respect of the claimant’s complaints of unlawful deduction from wages, and indirect discrimination on grounds of race, but not unfair dismissal, as that part of the claim was withdrawn by the claimant’s solicitor, as the claimant was still employed by the respondents.[15]Following that Case Management Preliminary Hearing held on 14 September 2018, a Rule 52 judgment signed by Judge McPherson, dated 18 September 2018, and issued to parties on 19 September 2018, dismissed the unfair dismissal part of that first claim against the respondents. Final Hearing before this Tribunal[16]When the case first called before this full Tribunal, on 18 October 2018, for that listed 2-day Final Hearing, the claimant appeared in person, but no longer represented by Livingstone Browne, although two of their solicitors were present at the Tribunal, and advising the claimant.[17]At that Final Hearing, a Ms Ramiza Mohammed, consultant with Croners, appeared for the respondents, accompanied by their director, Dr Wilson. Ms Mohammed had only been instructed by the respondents the previous day.[18]On 28 September 2018, Livingstone Brown, solicitors, acting for the claimant, wrote to the Tribunal seeking an extension of time to lodge the claimant’s Schedule of Loss, as the claimant had advised them that he had been dismissed from his employment with the respondents, and, as the claim then did not include any claim for unfair dismissal, it may be that the claimant required to make an application to amend the claim.[19]A one week’s extension of time was allowed to lodge the Schedule of Loss, and, on 4 October 2018, the Tribunal advised the claimant’s solicitors that any application to amend the claim should be lodged as soon as possible, given the Final Hearing was listed for 18 and 19 October 2018. An amendment application was made by the claimant, on 18 October 2018, and opposed by the respondents. He also lodged a Schedule of Loss seeking a grand total of £19,368.34.[20]After the Tribunal, having heard both parties’ submissions, allowed that opposed application by the claimant, dated 18 October 2018, to amend his ET1 claim form, to add in a complaint of him having been allegedly unfairly dismissed by the respondents on 17 September 2018, the full Tribunal discharged the listed 2-day Final Hearing, and we ordered that the amended case be relisted for a 3-day Final Hearing before us, if available, on 18, 19 and 20 February 2019. We also made various case management orders for this relisted Final Hearing.[21]While our interlocutory rulings given orally on 18 October 2018 were thereafter confirmed in writing to both parties, under cover of a letter from the Tribunal dated 24 October 2018, Judge McPherson also issued a detailed written Note and Orders of the Tribunal, dated 7 November 2018, which was issued to both parties by the Tribunal’s letter of 8 November 2018. Our reasons for allowing the claimant’s amendment were there stated as follows: - “The claimant’s application, intimated to the Tribunal by letter dated 18 October 2018, for leave to amend his ET1 claim form to add a new complaint of unfair dismissal, arising from what he alleges was his dismissal by the respondents on 17 September 2018, is allowed, notwithstanding the respondents’ objection, as the Tribunal is satisfied that it is in the interests of justice to allow the claimant to amend his existing claim, to add in a cause of action arising after presentation of his original claim, because there would be greater prejudice and hardship to the claimant if the amendment was refused, than there will be to the respondents if it were allowed, in circumstances where the respondents, if sued by way of a fresh claim would still face a claim for unfair dismissal, but a fresh early conciliation process through ACAS, ET1 claim and ET3 response process would need to be followed, resulting in two separate claims before the Tribunal, which would be combined for any Final Hearing in due course.” Second claim brought by the Claimant[22]Thereafter, on 18 December 2018, following ACAS early conciliation on 17 September 2018, the claimant, acting on his own behalf, presented his second ET1 claim form to the Tribunal, complaining of alleged unfair dismissal by the respondents on 17 September 2018, as also alleging discrimination on the grounds of race, citing his Iranian ethnic or national origin.[23]Further, the claimant’s second ET1 also alleged victimisation by the respondents, asserting that his first claim against them, complaining of race discrimination, was a material factor in the respondents’ decision to dismiss him on 17 September 2018.[24]He further alleged that he was owed holiday pay by the respondents, and he requested that this second claim be conjoined with the first and added into the Final Hearing listed for February 2019. He sought a finding that he was subject to unlawful discrimination, and sought financial compensation, and injury to feelings[25]That second claim was accepted by the Tribunal, on 19 December 2018, under case number 4123692/2018, when a Case Management Preliminary Hearing was assigned for 1 March 2019, and a copy of that second claim was sent to the respondents, on 19 December 2018, allowing them to lodge an ET3 response by the due date of 16 January 2019.[26]On 16 January 2019, by email sent at 11:26, Dr Wilson, director with the respondents, lodged their handwritten ET3 response form with the Tribunal, resisting the further claim against the respondents, together with her lodging a handwritten, completed PH agenda for the respondents.[27]She stated that the claimant had been employed by the respondents from 30 November 2015 to 12 December 2018, having been AWOL since 12 October 2018. She further stated that: “... it is evident that he is clutching at straws seeking to make gratuitous claims in order to force a payment to him.” She denied that the claimant had been victimised at work, or subject to racism, and stated that she regarded this second claim, brought on 18 December 2018, as retaliation for his dismissal by the respondents on 12[28]Thereafter, by email sent at 16:39 on that same date, Ms Mohammed, consultant with Croners, submitted a completed ET3 response on behalf of the respondents, along with an attached 4-page typewritten paper apart with the respondents’ response denying the claimant’s allegations. It was denied that the claimant was dismissed on 17 September 2018, and also denied that he had been victimised on grounds of race by the alleged dismissal on 17 September 2018. While the respondents accepted that monies were owed to the claimant, they denied that the failure to make payments were in any way linked to the claimant’s race.[29]Dr Wilson’s handwritten ET3 response was accepted by the Tribunal, on 17 January 2019, and a copy sent to the claimant. Following referral to Employment Judge Ian McPherson, for Initial Consideration of the new claim and response, Judge McPherson directed that the new claim and response would proceed, he issued a Combining Order and ordered that the listed Case Management Preliminary Hearing in the second case, fixed for 1 March 2019, be postponed.[30]Further, Judge McPherson ordered that the second claim be heard with the first claim, under case number 4105000/2018, at the Final Hearing listed to begin on 18 February 2019. Amended Notice of Final Hearing, dated 29 January 2019, was thereafter issued to both parties by the Tribunal, combing the two cases to be heard together. Final Hearing continued to a later date[31]By the time that this case called again before us on the morning of Monday, 18 February 2019, for this 3-day Final Hearing, the claimant had secured pro bono representation by student advisors from the University of Strathclyde Law Clinic.[32]When the case called before us, on 18 February 2019, the claimant was in attendance, represented by the Law Clinic, while Ms Mohammed appeared again for the respondents, instructed by Dr Wilson, who was also in[33]Having been instructed by the claimant, on 6 February 2019, the Law Clinic had lodged further and better particulars on his behalf, with the Tribunal on 8 February 2019, responding to the call by Ms Mohammed, on 25 October 2018, for the claimant to provide further and better particulars, and respond to her response of 25 October 2018 about the claimant’s Schedule of Loss provided at the Final Hearing on 18 October 2018. A revised Schedule of Loss was produced for the claimant, seeking £22,278.57.[34]The Law Clinic also sought to amend the claim, as set out in the further and better particulars, to amend the original claim to include a complaint of victimisation in terms of Section 27 of the Equality Act 2010, and to include a complaint in terms of the Working Time Regulations. They withdrew the complaint of indirect race discrimination that was noted to be part of his original claim.[35]Amended further and better particulars for the claimant were intimated on 12 February 2019, with Ms Mohammed tendering the respondents’ response to the claimant’s further and better particulars on 14 February 2019. Further clarification of the claimant’s case was thereafter provided by the Law Clinic on 15 February 2019, submitting a tracked change version of the amended further and better particulars, which resulted in a further amended response from Ms Mohammed later on 15 February 2019.[36]Unfortunately, due to day 1 (18 February 2019) being taken up with clarification of the issues, and opposed applications to amend, this meant (despite a Timetabling Order made by the Tribunal under Rule 45 of the Employment Tribunal Rules of Procedure 2013) that the evidence from the 3 identified witnesses, and closing submissions, could not be concluded within the allocated 3-day Final Hearing sitting. We allowed amendments to both the ET1 claim form, and the ET3 response.[37]The two principal witnesses, the claimant, and Dr Wilson, were both led, and concluded, so when the part-heard Final Hearing was continued to a later date, there was only a Mr Fraser Clarke left over to be heard as a witness to be called by the respondents.[38]Parties’ time estimates, which we included in our Timetabling Order, were that his evidence in chief was estimated at no more than 1/2 hour, and likewise for cross-examination, at the Continued Final Hearing. On that basis, so we could conclude the evidence, and proceed thereafter to closing submissions, it was agreed that one further day be allocated for the Continued Final Hearing.[39]We gave specific case management orders in regard to that continued date, including timetabling, orders for a finally agreed List of Issues, and updated Schedule of Loss from the claimant, and specific orders and directions as to the preparation and mutual exchange of outline written closing submissions, as per the written Note and Orders of the Tribunal signed by the Judge on 21 February 2019, and issued to parties’ representatives under cover of a letter from the Tribunal dated 25 February 2019.[40]By Notice of Continued Final Hearing issued by the Tribunal to both parties’ representatives on 14 May 2019, following date listing stencils, and sundry correspondence with parties’ representatives in March and April 2019, the case was relisted for a further one day sitting on Friday, 19 July 2019. Respondents’ Application for Postponement of Continued Final Hearing refused by the Judge, and renewed application refused by the Tribunal[41]In terms of the case management orders made by the Tribunal on 20 February 2019, as set out fully in the Judge’s written Note and Orders issued to parties’ representatives, by letter of 25 February 2019, parties’ representatives outline written closing submissions were to be prepared, and exchanged, by no later than 7 days before the start of the Continued Final Hearing, i.e. by 12 July 2019 at latest.[42]The Law Clinic student advisers timeously intimated their outline written submissions to the Tribunal, with copy to Ms Mohammed for the respondents, on 12 July 2019. On the morning of 16 July 2019, the Tribunal, on instructions from Judge McPherson, reminded the respondents’ representative, Ms Mohammed, that her outline written submissions were due by no later than 12 July 2019, and directing that they be submitted by return of email.[43]Ms Mohammed duly intimated the respondents’ outline written submissions by email to the Tribunal, copied to the Law Clinic, that same afternoon, apologising for a misunderstanding on her part.[44]On the late evening of 17 July 2019, Ms Mohammed, from Croner, acting as the respondents’ representative, applied to the Tribunal, seeking an urgent postponement of the Continued Final Hearing fixed for 19 July 2019.[45]Having considered objections intimated by the Law Clinic, as the claimant’s representative, the Judge, on 18 July 2019, refused the respondents’ application, and confirmed that the listed Continued Final Hearing would proceed. His decision was intimated to both parties’ representatives, by email from the Tribunal, on the afternoon of 18 July 2019, stating as follows: “I refer to the above case, listed for continued Final Hearing tomorrow, Friday, 19 July 2019, at 10am, for one further day, as per Notice of Continued Final Hearing issued to both parties’ representatives on 14 May 2019. I write to acknowledge receipt of Ms Mohammed’s email of yesterday evening, Wednesday 17 July 2019 @ 21.10, and the Law Clinic’s reply this morning @ 11:26, objecting to the respondents’ application to postpone the Continued Final Hearing. Following referral to Employment Judge Ian McPherson, the Judge has instructed that the correspondence be placed on the casefile, as have the emails of 12 and 16 July forwarding the claimant’s and respondents’ closing submissions, the latter being late. After careful consideration of the application and objections, the Judge has REFUSED the postponement application. He does not consider it to be in the interests of justice to postpone the listed Hearing, given the lateness of the application, on the eve of the continued Final Hearing tomorrow, and for the reasons well-founded in the detailed objections from the Law Clinic. Whatever the “internal misunderstanding” was within the respondents and / or their representative, that does not constitute good cause nor exceptional circumstances to merit postponement of the listed Hearing tomorrow, nor does the fact that Ms Mohammed did not inform Dr Wilson of the date assigned. Further, the Judge states that it is not in accordance with the overriding objective to postpone and relist, given the procedural history of this litigation to date, where both parties are entitled to have the case concluded within a reasonable time, and to further continue its conclusion to a later date will simply add further delay and associated cost to not only both parties, but also to the public purse that funds the Tribunal. Dr Karen Wilson, the respondents’ director, concluded her evidence at the Final Hearing held on 18 / 20 February 2019, and she is not required to give any further evidence. The only remaining witness to be heard was the respondents’ Fraser Clarke, with estimated ½ hour in chief, and ½ hour in cross. Only he is required as a witness, and that has been known since the previous Hearing. No detail is provided as to the nature of the “business commitments tomorrow that they are unable to get out off”, and as such the application is woefully unspecific, and nor is it explained why this only came to the respondents’ attention yesterday. As per the Judge’s written Note & Orders dated 21 February 2019, as sent to both parties’ representatives on 25 February 2019, both parties’ representatives should ensure that, as per that written Note & Orders, 3 hard copies of the finalised version of the agreed List of Issues, and both parties’ closing submissions, and 3 ring-binder, inventoried copy authorities, are all provided to the clerk to the Tribunal in time for the 10am start of the continued Hearing tomorrow, along with 4 hard copies of the supplementary Bundle, including updated Schedule of Loss, that should have been intimated by Friday 5 July 2019, and the respondents’ Counter Schedule due by last Friday, 12 July 2019. While writing, the Judge notes that in the Tribunal’s email of 10 April 2019 @ 15:13 (from Jason Chan) the respondents’ representative was asked to reply, by 17 April 2019, whether the respondents sought a Rule 52 judgment re the second claim 4123692/18. As far as the Tribunal’s casefile shows, there has been no response to that direction by the Judge by the due date, or to current date. As such, the Judge orders that the respondents’ representative confirms to the Tribunal, by email, with cc to the Law Clinic for the claimant, her clients’ position by no later than 4.00pm today, Thursday 18 July 2019, and explains the failure to respond to the Judge’s earlier direction.”[46]On the afternoon of 18 July 2019, Ms Mohammed, from Croner, acting as the respondents’ representative, having received the Tribunal’s email earlier that afternoon refusing her postponement application, applied to the Tribunal, with copy to the Law Clinic, again seeking an urgent postponement of the Continued Final Hearing, and putting forward additional information to allow the Judge to reconsider his earlier refusal.[47]That further application was refused by the Judge, as the reasons submitted in the second application by Ms Mohammed were not included in the original application refused by the Judge earlier that day, and indeed departed from the earlier application. It was confirmed that the Continued Final Hearing would proceed as planned on Friday, 19 July 2019.[48]On 19 July 2019, Ms Mohammed again renewed her application for a postponement. The full Tribunal having heard from her, and from Ms Withers from the Law Clinic on behalf of the claimant, refused the application, for the summary reasons there and then given by the Judge, the Tribunal having adjourned (from 10.50am to 11.33am) for private deliberation, before the Judge orally gave the Tribunal’s interlocutory ruling, as follows: “Having considered parties’ representations, the Tribunal has decided to refuse Ms Mohammed’s renewed application to postpone and relist, to allow the respondents to lead evidence from Mr Clarke, it not being in the interests of justice to do so, nor consistent with the overriding objective. Detailed reasons to follow, but the Tribunal has read the full written representations.”[49]We provide our detailed reasons for refusing that renewed application to postpone later in these Reasons, at paragraph 90(1) to (12) below. At the Continued Final Hearing, on 19 July 2019, Ms Withers acted as the claimant’s representative, as Ms Yuill was there, but recovering from recent medical treatment. Ms Mohammed was there representing the respondents again, but Dr Wilson was not there instructing her: she was absent on other (undefined) business, we were advised by Ms Mohammed. Second Claim withdrawn by the Claimant, and Dismissed by the Tribunal[50]While we heard this case together with a second claim brought by the claimant against the respondent, under case number 4123692/2018, and combined with this case for Final Hearing, we need here to note and record that, arising from parties’ jointly agreed position, as put to us at the Continued Final Hearing on 19 July 2019, the Judge signed off a dismissal Judgment, on 26 July 2019, in terms of Rule 52 of the Employment Tribunals Rules of Procedure 2013, dismissing that second claim, on account of its withdrawal by the claimant.[51]That Rule 52 Judgment, in case number 4123692/2018, was issued to both parties’ representatives under cover of a letter from the Tribunal dated 30 July 2019. It recorded that, having heard parties’ representatives at the Continued Final Hearing , and this second claim having been withdrawn by the claimant's representative, by letter to the Tribunal dated 5 April 2019, and confirmed by her at this Final Hearing of the combined claims, and on the application of the respondents’ representative, by her email of 18 July 2019 to the Tribunal, in answer to the Tribunal’s email of 10 April 2019, this second claim against the respondents was dismissed by the Tribunal, on the unopposed application of the respondents’ representative.[52]However, that Rule 52 Judgment also recorded that the remaining parts of the original claim (as amended by order of the Tribunal dated 18 October 2018, with reserved Written Reasons dated 7 November 2018) alleging unfair dismissal, victimisation, and unlawful deduction from wages / failure to pay holiday pay, remained standing, and they are the subject of this Judgment and Reasons by the Tribunal. Delay in issuing this Judgment[53]While we reserved Judgment, following the close of that Continued Hearing, on 19 July 2019, there has subsequently been an unfortunate, but unavoidable, series of delays in our Judgment being progressed. While we met, in chambers, on 30 August 2019, for a Members’ Meeting, we did not conclude our private deliberations. 30 August 2019 was the earliest, mutually convenient date for the full Tribunal panel to meet after 19 July 2019.[54]The subsequent, further delay in this Judgment being issued, since 30 August 2019, has largely been occasioned by the Employment Judge being absent, on extended sick leave absence from 16 September 2019 to 25 November 2019. Parties were advised of that absence by the Tribunal on 16 September 2019, at which stage it was not clear when the Judge would return to work, and be able to progress this Judgment and Reasons.[55]The Judge apologises to both parties for this further delay in concluding his draft Judgment and Reasons for discussion with the lay members of the Tribunal, which has resulted in consequential delay in fixing a further Members’ Meeting to allow the Tribunal to conclude its private deliberations, in chambers, to take account of the evidence heard, closing submissions made, and subsequent further written representations from both parties, dated 24 and 26 July, and 2 August, 2019.[56]It is only now, at our Members’ Meeting held on 5 February 2020, we have had the opportunity to conclude our private deliberations. Having now carefully considered parties’ closing submissions, and their further written representations, this unanimous Judgment and Reasons of the Tribunal represents the final product from our private deliberations, and reflects the unanimous views of us as the specialist judicial panel brought together as an industrial jury from our disparate experiences. Agreed List of Issues[57]After the part-heard Final Hearing on 18/20 February 2019, the Judge issued a proposed draft of a List of Issues for parties’ comments and joint agreement. It was thereafter the subject of interlocutory correspondence between parties’ representatives, and the Tribunal.[58]At the Continued Final Hearing, on 19 July 2019, the claimant’s representative tendered, and the Tribunal adopted, both parties’ representatives being agreed as to its content, a jointly agreed, finalised version of the document.[59]That finally agreed List of Issues is in the following terms: Unfair Dismissal/ Unfair Constructive Dismissal 1. Whether or not the claimant was dismissed, expressly or constructively, on either, or both, of 17 September 2018 and 12 December 2018? 2. If he was dismissed on either date, whether or not that dismissal was unfair? 3. If he was unfairly dismissed, whether or not he is entitled to any compensation from the respondents and, if so, in what amount? Taking into account any contributory conduct by the claimant, whether or not he had mitigated his losses, or any Polkey reduction, and whether or not any compensatory award should be adjusted for either party’s unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Victimisation on Grounds of Race 4. Whether or not the claimant was victimised in terms of Section 27 of the Equality Act 2010 by the Respondent’s Director on 17 September 2018? 5. Whether or not, in alleging that the respondents had contravened the Equality Act 2010, being the “protected act” relied upon by the claimant in his victimisation claim against the respondents, the claimant was making a false allegation in bad faith, and thus, there is (as the respondents contend) no protected act to rely upon, given Section 27(3) of the Equality Act 2010? 6. Whether or not, if the claimant was dismissed on 17 September 2018 (which the respondents deny) the reason for his dismissal on that date was because he had raised a claim for race discrimination against the respondents in May 2018? 7. In the alternative, whether or not his dismissal on 12 December 2018 (which the respondents submit was on the grounds that he was AWOL from work) was for that reason stated by the respondents, or because he had raised a claim for race discrimination against the respondents in May 2018? Unlawful Deduction from Wages 8. Whether or not, as the respondents contend, and the claimant denies, any claim for unlawful deduction from wages prior to 28 February 2018 is time-barred and thus not within the jurisdiction of the tribunal? 9. Whether or not, as the respondents contend, and the claimant denies, there was a verbal agreement in place between the parties constituting a variation, through custom and practice, to the terms of the claimant’s written contract of employment with the respondents, as regards payment of his wages? 10. Whether or not the respondents have unlawfully deducted sums from the claimant’s wages due and payable and, if so, on what dates and what amounts? 11. To ascertain the monies (if any) owed to the claimant by the respondents, and the extent to which (if at all) the respondents are entitled to recover training expenses and costs of abuse of telephone calls from any monies due to the claimant. Working Times Regulations (Holiday Pay) 12. Whether or not the respondents owe any monies to the claimant in respect of holiday pay accrued but not taken as at the effective date of termination of his employment, being either 17 September 2018 (as argued by the claimant) or 12 December 2018 (as argued by the respondents) and if so, in what amount? Findings in Fact[60]We have not sought to set out every detail of the evidence which we heard nor to resolve every difference between the parties, but only those which appear to us to be material. Our material findings, relevant to the issues before us for judicial determination, based on the balance of probability, are set out below, in a way that is proportionate to the complexity and importance of the relevant issues before the Tribunal.[61]At paragraphs 3(a) to (ff) of the claimant’s written outline closing submission, produced to us by the Law Clinic on 12 July 2019, at pages 1 to 4 of 17, we were asked to make certain findings in fact. We have taken those proposed findings into account, but not considered ourselves bound by them, as our findings in fact set forth below in these Reasons, at paragraph 62, are more extensive, having regard to our assessment of the whole evidence led before us, including the documents lodged by parties to which we were referred in evidence at this Final Hearing.[62]On the basis of the sworn evidence heard from the two witnesses led before us over the course of this Final Hearing, being the claimant, and Dr Wilson for the respondents, and the various documents in the Bundles of Documents provided to us, the Tribunal has found the following essential facts established: - Parties 1) The claimant, who is of Iranian ethnic and national origin, was formerly employed by the respondents as a resourcer and recruitment consultant. 2) The respondents are a private limited company. Although registered as a company in England & Wales, company number 04825653, and with a registered office there, in London, they operated from an office in Glasgow, where the claimant was employed, line managed by the respondents’ director, Dr Karen Wilson. Claimant’s Employment by the Respondents 3) The claimant commenced employment with the respondents on a temporary basis in February 2015 and subsequently signed a permanent contract on 9 November 2015 (see page 135 of the joint bundle). Signed on 9 November 2015 by Dr Wilson for the respondents, and by the claimant, the claimant accepted an amendment to his contract of employment by updating it to permanent employment. 4) By formal agreement entered into between the parties, signed on 9 November 2015 by Dr Wilson for the respondents, and by the claimant, (see pages 136 to 147 of the joint bundle), the claimant’s date of commencement of continuous employment was stated to be 30 November 2015. 5) His ET1 claim form stated he started on 9 November 2015, while the respondents’ ET3 response stated 1 December 2015 was the start date. The Tribunal finds, as per the written contract of employment, that the claimant’s start date with the respondents, for the purposes of continuity of employment, was 30 November 2015. 6) On 12 February 2019, the respondents issued the claimant with a P45 form dated that date, giving 31 December 2016, as his leaving date, and showing total pay to that leaving date of £15,288.94. A copy of that P45 was produced to the Tribunal at page 223 of the 7) Notwithstanding the issue of that P45, giving 31 December 2016, as the claimant’s leaving date, the respondents, at this Final Hearing, did not dispute that the claimant had continuity of employment with them from 30 November 2015, being the start date of his permanent contract of employment, although Dr Wilson insisted that he did not start work until 1 December 2015. 8) When Ms Mohammed, the respondents’ representative, lodged a response with the Tribunal, on 28 November 2018, paragraph 1 of that response, as produced to the Tribunal at page 133 of the joint bundle, stated: “Medhi Saki (MS) commenced full time employment with Odyssey Enterprises Ltd (OE) on December 1 2015. There have been two periods of employment; the first from 1st December 2016 (sic) until December 31st 2016 when a P45 was issued. A second period of employment commenced on January 1 2017 and was terminated with his dismissal on December 12 2018. A second P45 was issued on termination of this employment. This claim relates to the second period of employment from January 2017. Correspondence from HMRC confirms the termination of the first employment in December 2016.” 9) This assertion of two distinct periods of employment was not made by the respondents in either of the two ET3 responses lodged with the Tribunal in reply to the two separate claims brought by the claimant against the respondents. Further, no correspondence from HMRC, as referred to in that correspondence from Ms Mohammed on 28 November 2018, was produced by the respondents for the Tribunal at this Final Hearing. 10) In that written contract of employment, the claimant’s normal working hours were specified as 9.00am to 17.00pm with one thirtyminute break and such other rest breaks as may from time to time be designated by the employer, to be taken as directed by the employer, and, given the nature of the employer’s work, the claimant was expected when required to work such additional time as might be required by the employer for him to properly fulfil his duties. 11) Ordinarily, the written contract of employment provided that there was no payment for overtime in connection with the claimant’s employment. At that time, on commencement of permanent employment with the respondents, his normal working hours were 40 hours per week. 12) The claimant was contracted, at clause 5.1 of that written contract of employment, to be paid £20,000 per annum, payable monthly in arrears by bank transfer or cheque at the employer’s discretion on the last Friday of each month (see page 138 of joint bundle). That equates to a gross monthly salary of £1,666.66. 13) By clause 5.2, it was provided that: “Pursuant to sections 13-27 of the Act, the Employer shall be entitled to deduct any sums owed by you to the Employer from your pay.” The Act was defined as the Employment Rights Act 1996. 14) By clause 7, his annual leave entitlement was stated to be 28 days per year inclusive of public holidays, and the leave year ran from 1st January to 31st December in any one year. Clause 7.6 provided that any unused annual leave entitlement may only be carried forward to the following annual leave year with the advance agreement of the Managing Director. 15) If, on the termination of his employment, the claimant had exceeded his accrued annual leave entitlement, the value of such excess, calculated by reference to clause 7.4 (accruing at the rate of 1/12th of annual entitlement for each complete calendar month of service) and his salary at that time, might be deducted by the employer from any sums due. 16) By clause 9, it was provided that the respondents did not operate a pension scheme applicable to the claimant’s employment, but he would be entitled to participate in any pension arrangement which the employer might subsequently introduce. 17) The claimant’s employment was to continue, per clause 10, until it was terminated by either party giving to the other not less than 4 weeks’ notice, and that any notice of termination whether given by the claimant or the employer must be in writing. 18) At clause 11, (see page 129 of the joint bundle), there was provision made about training: “The Employer will endeavour to provide such training as it deems to be appropriate for all personnel to enable them to carry out their duties to the highest possible standards. The employer reserves the right to require repayment of any costs to third parties it has expended for training where such training is not mandatory and the employee leaves the employment of the Employer within six months of completing the relevant training.” 19) Clause 22, which reserved the employer’s right to make changes in writing to any of the claimant’s terms and conditions of employment, provided that the claimant would receive not less than one month’s notice of any significant changes, and he would be deemed to have accepted the same unless he notified the employer in writing of any objection to the same before the expiry of that notice period. 20) The claimant did not receive any variation to his contract in writing up to the date of his dismissal. The claimant accepts that there was a verbal variation to his contract on or about May 2018 when his hours were reduced to 16 per week. 21) In his ET1 claim form, see pages 6 and 8 of the joint bundle, the claimant stated that he worked on average 40 hours per week, for which he was paid £1,666 monthly (gross) pay before tax, and £1,397.50 (net) normal take home pay. 22) When the respondents’ ET3 response was lodged, by Dr Wilson on 5 July 2018, see page 16 of the joint bundle, she stated that the claimant’s hours were 16 per week, and not 40, and that the earnings details supplied by him were incorrect – she did not, however, specify what she asserted were the correct details for 16 hours per week. 23) In the additional information to her ET3 response, see page 22 of the joint bundle, Dr Wilson stated that the claimant had reduced his working hours to 16 per week, without negotiation, in February 24) When, on 25 October 2018, the respondents’ representative, Ms Mohammed, provided to the Tribunal her response to the claimant’s Schedule of Loss, at paragraph (8) thereof, it was stated that: “The claimant reduced his working week to 2 days a week in March 2018. It was at that point that his weekly income became paid for 2 days work per week – 16 hours per week at £10 per hour.” 25) While, Dr Wilson, the respondents’ director, in her email to the claimant, on 15 October 2018 (see page 320 of the joint bundle) referred to the claimant being in “breach of contract”, by reducing his weekly hours from 40 to 16, over the last 6 months, the Tribunal finds that this was a consensually agreed variation, from May 2018, and not a unilateral variation by the claimant. 26) By amendment to the respondents’ ET3 response, intimated on 18 February 2019, and allowed by the Tribunal on 19 February 2019, when allowing the claimant’s amendment to the ET1 claim form, the respondents pled as follows: “(1) The Respondent submits that there was a custom and practice in place where there was a discussion once the payslip was generated and an agreement was reached as to how much was paid. The respondent would then make payment. There is sufficient evidence of the alleged custom and practice to allow the court to infer that both employer and employee would regard themselves as bound by the practice, notwithstanding the absence of any express provision to that effect in any individual employment contract. That conclusion is likely only to be justified where the practice is “notorious, certain and reasonable” although notoriety in this context is to be taken to mean no more than a sufficiently widespread knowledge and understanding of the practice. The arrangement was also long standing. Patel v De Vere group Ltd Case no: IMA4009.” 27) When the claimant’s representatives from the Law Clinic responded to the respondents’ custom and practice argument, by the claimant’s response intimated on 19 February 2019, it was denied by the claimant that there was in place a practice whereby a discussion ensued further to the issuing of a payslip as to how much he was to be paid each month. 28) It was explained, in that claimant’s response, that this was never the matter of express agreement and / or custom and practice between the claimant and the respondents The claimant denies being aware of any such practice, and at no point when he was raising concerns with Dr Wilson regarding his pay was he advised by her, or anybody else on the respondents’ behalf, that this alleged custom and practice was the reason for inconsistencies in his pay, until the amendment to the respondents’ ET3 response was intimated on 18 February 2019. 29) The Tribunal finds, on the evidence led at the Final Hearing, that there was no such custom and practice. Indeed, the arrangement suggested by the respondents flies in the face of the clear and express provisions in the parties’ written contract of employment, and there was no written agreement between the parties varying those salary payment arrangements. Claimant’s Wages 30) The claimant was initially paid his monthly net salary in accordance with his contract of employment. His gross basic monthly salary was £1,666.66, and he believed that he should have received net pay of £1,547.30, as confirmed in his grievance letter to the respondents’ Dr Wilson dated 23 March 2018, copy produced to the Tribunal at page 302 of the joint bundle. 31) In his ET1 claim form, see page 8 of the joint bundle, the claimant stated that his net monthly salary should have been £1,397.50, being £1,666.66 gross, less tax @ £149.80, and NI @ £119.36, producing £1,397.50. 32) The claimant received payslips from the respondents contemporaneously with being paid his salary until March 2017. He would receive these payslips by email. He noted that his pay had changed when the amount received into his bank account was not the amount that he was entitled to from the respondents. He began to receive variations in his salary payments which were also paid at odd dates from March 2017 until September 2018. 33) Inconsistencies arose in the payment of the claimant’s wages from March 2017 when his payments became erratic, and they were not always made on the last Friday of the month, as per his written contract of employment. It was because of the erratic nature of payments that the claimant raised his grievance with the respondents’ director Dr Wilson, verbally, and by formal letter of grievance. Claimant’s Grievance and Complaints re Unpaid Wages 34) In that grievance letter, dated 23 March 2018, the claimant stated: “I am sending this letter to raise a formal written grievance about your failure to pay my full salary on time from the period of March 2017 until end of March 2018. I hope in doing so we can deal with the issue quickly and amicably. I have worked for Odyssey Recruitment for 3 years and I month and my contract states that my salary is £20,000. My monthly net salary should be £1,547.30. I have raised this grievance verbally every week and was assured that my full monthly salary and the previous money owed would be deposited into my account. Since March 2017 I have not been paid my monthly salary on the last Friday of the month, as agreed in my contract. Over this period, I have received inconsistent payment totalling £13,237 for 2017. I am owed £5,327 from 2017, £1,347.390 for January 2018 and £547.30 for February 2018. I also ask you confirm that you have paid all my national insurance and pension contributions throughout my employment. If I am not paid the full amount of £7,221.60 that I am currently owed by the end of March 2018 I will have no choice but to seek legal recourse through an employment tribunal and the Advisory, Conciliation and Arbitration Service (Acas). As a consequence of the failure to pay my salary myself and my wife have had financial difficulties and have been under a huge amount of stress during her pregnancy. I have also occurred (sic) debt due to my inability to pay my bills. I would ask that you arrange a formal meeting as a matter of urgency to talk this through with you at a convenient time and place.” 35) At this Final Hearing, Dr Wilson denied receipt of the claimant’s letter of grievance, and explained that, for that reason, there was no written response by her to its terms. She did not dispute, however, that the claimant had, from time to time, spoken to her about not receiving his full salary at the end of each month. 36) The claimant and respondents were unable to agree as to the extent of the sums unpaid to the claimant. The claimant raised the issue regarding his unpaid wages with Dr Wilson via email, dated 10th May 2018 (see page 300 of the joint bundle). He explained that he was “in a very difficult situation and I really need my salary to pay bill”. This followed upon ACAS early conciliation between 5 April and 5 May 2018 (see page 1 of the joint bundle.) 37) Further, in another email from the claimant to Dr Wilson, sent at 11:12 on 16 May 2018, and entitled “Salary payments delay”, copy produced at page 342 of the joint bundle, the claimant stated: “I have calculated my all (sic) salaries which I have to receive in my bank account but have not received yet. The amount is about £9,850.34 and if I don’t revive (sic) that amount of salaries by 5pm today I will go and take next step which is solicitor and employment tribunal, I had talk with a solicitor at Livingston (sic) Brown and I fully respect you and I deserve to be respected and have my salaries…. You have a contact from ACAS” First Tribunal Claim 38) The claimant raised proceedings in the Employment Tribunal relating to unlawful deductions on 30 May 2018 (see page 2 of the joint bundle). As he explained, at section 8.1 of his claim (at page 7 of the joint bundle), the claimant there stated: “I am claiming for my national insurance and tax which my manager has not pied (sic) for several month”. 39) As the claimant was concerned that he was being treated less favourably due to his race in respect of unlawful deductions, he also included a claim for race discrimination at that time. He did so in good faith. The claimant continued in the respondents’ employment at the time of submitting that first ET1. 40) Further, at section 8.2, the claimant further explained, see page 7 of the joint bundle, that: “I have asked Dr Karen Wilson so many times to pay my salary also pay tax and national insurance and she has paid some part of my salary not full amount I claim she should pay my full salary and tax and national insurance.” 41) After that first Tribunal claim had been defended by Dr Wilson for the respondents, by ET3 response lodged with the Tribunal on 5 July 2018, the claimant texted Dr Wilson, on Friday, 17 August 2018, at 08:09, copy produced to the Tribunal at page 303 of the joint bundle, where he stated that: “I have been asking you for so many times for my salary and I’m very tired”. By her reply, that same day, Dr Wilson responded saying: “Hi Mehdi. I’m working out a payment plan and start from next week.” 42) No payment plan was thereafter agreed between the parties, despite an email exchange between the respondents’ director, Dr Wilson, and the claimant between 22 and 31 August 2018, as per the copy emails produced to the Tribunal at pages 304 to 307 of the Claimant’s Dismissal by the Respondents on 17 September 2018 43) At this Final Hearing, the parties were in dispute as to whether or not the claimant was dismissed by Dr Wilson on Monday, 17 September 2018. On the previous Friday, 14 September 2018, both parties had attended the Employment Tribunal for a Case Management Preliminary Hearing before Employment Judge Ian McPherson. 44) The respondents submit that there was no dismissal on 17 September 2018, as alleged by the claimant, nor any victimisation of him on grounds of race, and that the claimant was thereafter fairly dismissed by them on 12 December 2018, Dr Wilson having sought to engage with the claimant who was AWOL and get him to a disciplinary hearing. 45) On the basis of the evidence heard and accepted by the Tribunal, we find, on balance of probability, that Dr Wilson spoke to the claimant, on 17 September 2018, in the terms complained of by the claimant, namely Dr Wilson told the claimant that “there is no more work here for you anymore and because you took me to the Employment Tribunal you have to leave this office.” 46) Further, we find that, when the claimant explained to Dr Wilson that he had taken her to the Employment Tribunal because she had not paid his wages, Dr Wilson continued by saying “you accused me of racism, you took me to the Employment Tribunal. No one will give you a job in Glasgow, even Marks and Spencer’s because there will be a record of your tribunal. You have to leave here.” 47) Having been spoken to in those terms by Dr Wilson, the claimant left the respondents’ office. He believed that he had been dismissed by Dr Wilson. While the respondents did not thereafter issue him with any letter of dismissal, nor issue him with any P45 leaving certificate for HMRC purposes giving 17 September 2018 as his leaving date, the Tribunal finds that the claimant was dismissed by Dr Wilson on 17 September 2018, and that that dismissal was unfair. 48) There was no potentially fair reason for dismissal given, and the claimant was dismissed without notice or due process. As such, his dismissal was substantively and procedurally unfair. It was not reasonable, in all the circumstances, to have dismissed the claimant at that stage. 49) Further, on the evidence before the Tribunal, we find that the claimant’s dismissal on that date also constituted an act of victimisation by the respondents against the claimant, as the reason for his dismissal by Dr Wilson was related to the fact that the claimant had done a protected act, in good faith, by raising a Tribunal complaint of race discrimination against the respondents in May 2018. The Tribunal is satisfied that this earlier complaint of racial discrimination brought by the claimant against the respondents was a material factor in Dr Wilson’s dismissal of the claimant on 17 September 2018. 50) As a result of his unfair dismissal, and victimisation by Dr Wilson, on 17 September 2018, the Tribunal is satisfied, on the evidence led before the Tribunal, that the claimant is entitled to financial compensation, including compensation for any injury to feelings. Events after 17 September 2018 51) The claimant consulted his legal advisor after leaving the office, on 17 September 2018, because he believed that he had been dismissed (see pages 54 and 319 of the joint bundle), being the claimant’s email to Ms Mohammed on 14 November 2018, and his email of 15 October 2018 to Dr Wilson and Livingstone Brown. 52) Further, on 17 September 2018, the claimant notified ACAS that he was the prospective claimant in further Tribunal proceedings against the respondents. ACAS issued an early conciliation certificate to him on 17 September 2018 by email. A copy of that ACAS EC certified issued to him on 17 September 2018 was produced to the Tribunal at page 74 of the joint bundle. 53) The claimant started to look for alternative employment on and after 19 September 2018. He produced details of his job searches in his Supplementary Bundle produced to the Tribunal. 54) On 20 September 2018, Dr Wilson contacted the claimant, by text message, to ask him to “come to work” the following day, Friday 21 September 2018 (as per page 315 of joint bundle). The claimant believed that this was to discuss the wages he was owed, not to return to work because he believed he had been dismissed. 55) The claimant apologised on the Friday morning, 21 September 2018, by text message, at 08:44, to Dr Wilson saying he could not come as he had a GP appointment, as he was not well, and then an interview in Edinburgh, but by further text message, at 17:51, he advised Dr Wilson: “Hi Karen. I am not well at all I can’t cope with my situation any more am in 5000 thousand pound debt. I have family issue now... have an appointment with my GP next week again.” 56) Thereafter, by text to Dr Wilson at 05:05 on Monday, 24 September 2018, copy produced at page 316 of the joint bundle, the claimant stated that he hadn’t slept, but he would text her if he could come in. He texted her again, at 10:42 (see page 317) saying he was looking after his child, and he offered to meet Dr Wilson at Patisserie Valerie for hot chocolate and a sandwich. Dr Wilson replied, asking the claimant to come to the respondents’ office at 14:30. 57) There was no meeting between the claimant and Dr Wilson on 24 September 2018. The claimant, having been seen by his GP at Govanhill Health Centre on 26 September 2018, he obtained a sick note from his GP, detailing “stress” as the reason for him not being fit to work. 58) A copy of the Med 3 fit note signed by the claimant’s GP, on 26 September 2018, and covering the period from that date to 12 October 2018, was produced to the Tribunal at page 314 of the joint bundle. 59) When the claimant went to the respondents’ office on 26 September 2018 to get a copy of his payslips printed off, he showed that GP fit note to Dr Wilson, to show his situation as a result of her dismissal of him, and not for the respondents as his employer, She took the GP fit note, and kept it. 60) There was no dialogue between him and Dr Wilson where he stated that he had been dismissed, and Dr Wilson appears to have believed that he was still an employee, as she subsequently wrote to him requesting a reason for his further absence, as no further sick line was presented by him after 12 October 2018. 61) The claimant then went to France on holiday. On 4 October 2018, having been assessed again by his GP, the claimant obtained a further sick note for the respondents, again detailing “stress” as the reason for him not being fit to work, but this time covering the period from 17 September 2018 to 12 October 2018. A copy of this further Med 3 fit note signed by the claimant’s GP, on 4 October 2018, was produced to the Tribunal at page 313 of the joint bundle. The claimant advised the Tribunal that he gave that fit note to the Job Centre. While he claimed for Universal Credit, he advised the Tribunal that he did not receive any State benefits. He was unemployed and searching for new employment. 62) While the respondents had receipt of the claimant’s Med 3 certificate, from 26 September 2018, when Dr Wilson took it, and kept it, when the claimant visited their office, the Tribunal would have expected them to pay him statutory sick pay (“SSP”) during his medically certificated absence. However, there was no evidence presented to the Tribunal that the claimant received any SSP.[63]SSP is not shown on the payslip for September 2018 produced by the respondents, at page 210 of the joint bundle, which the claimant did not receive at that time. There were no further payslips provided, for October to December 2018, despite the respondents’ assertion that he was AWOL after 12 October 2018, but not dismissed until 12 December 2018.[64]In terms of the parties’ written contract of employment, at clause 8.1 (copy produced at page 129 of the joint bundle), the entitlement was up to 28 weeks’ SSP, subject to the memorandum on SSP at part 3 of the schedule to the contract (see pages 146 and 147).[65]On 28 September 2018, Livingstone Brown, solicitors, acting for the claimant, had written to the Tribunal, with copy sent to Dr Wilson for the respondents, stating that the claimant had advised them that he had been dismissed from his employment with the respondents, and, as the claim then did not include any claim for unfair dismissal, it may be that the claimant required to make an application to amend the claim.[66]When Dr Wilson emailed the claimant, on 5 October 2018, as per copy produced at pages 308 and 309 of the joint bundle, and replicated at pages 349 and 350, thanking him for coming to the office that day, she attached payslips for April 2017-April 2018, and April 2018 – September 2018. She stated that total pay due for 2017/18 was £13,278.74, and £3,828.24 for 2018/19, totaling £17,106.98, less £15,093.44 paid to him, leaving an amount due of £2,013.54. She asked him to review and revert with any comments.[67]On 11 October 2018, as per copy email produced at pages 348 and 349 of the joint bundle, the claimant thanked Dr Wilson for sending the payslips to him, and he asked her to send an excel spreadsheet for each month of 2018.[68]She sent him a spreadsheet for the 2 financial years April 2017- 2018 and April 2018-2019, each year on a separate page. This spreadsheet was not included in the joint bundle along with Dr Wilson’s email of 11 October 2018 at page 347 of the joint bundle.[69]The Tribunal has noted the documents disclosed by Ms Mohammed, on 28 November 2018, as per her email to the Tribunal, copied to the claimant, at page 116 of the joint bundle, and the Tribunal has noted that there are various excel spreadsheet summaries for different years produced at pages 118 to 132 of the[70]Contrary to the email of 5 October 2018 from Dr Wilson, at pages 308 and 309 of the joint bundle, stating that the amount due to the claimant was £2,013.54, the spreadsheet produced to the Tribunal, at page 125 of the joint bundle, summarising the claimant’s pay from December 2015 to September 2018, shows total gross pay due of £49,053.58, giving total net pay of £41,862.72, with the claimant having been paid a total of £36,709.16, leaving a difference of £5,153.56. However, the Table 1 provided by Ms Mohammed stated that the deficit was £6,526.24.[71]The respondents disagreed with the claimant’s figures, stating they did not reflect his payslips, and in attaching a spreadsheet outlining the respondents’ position on payments made and monies outstanding, Ms Mohammed stated: “The accountant reviewed the figures and agrees the spreadsheet I prepared is correct.”[72]The respondents led no evidence from their accountant before this Tribunal, nor did they lodge any contemporary payroll records, or record of payments made to HMRC in respect of income tax and national insurance contributions paid on the claimant’s earnings in their employment.[73]The claimant thereafter specified in an email to the respondents’ Dr Wilson dated 15 October 2018 his belief that he had been dismissed, on 17 September 2018, and that he suffered and had continued to suffer deductions from his wages (see page 319 of joint bundle).[74]The claimant stated: “You very clearly dismissed me from my employment with you on the 17th of September 2018. On the morning of the 17th September, you told me that I should leave as there was no work for me and I had taken you to the employment tribunal. You made no mention of this being a temporary situation and me returning to work the next day. In fact, had there been a situation where there was no work for a day, this would be very unusual for a business, but I would expect that you would present this as an additional holiday due to an error with work planning. I contacted my lawyer on the day and detailed what you had said, they confirmed that this a clear case of unfair dismissal. Furthermore, if you believe there had been a misunderstanding, as you assert now, you did not contact me the following day to ask me why I was not at work. I received your email today, the 15th of October, in which you asked me whether I will return to work with Odyssey Enterprise Limited. I am confused why you would ask me to return to a job which you unfairly dismissed me from and for which I am currently owed £9,200. I hope that we will still be able to settle this matter outside of court.”[75]Dr Wilson, the respondents’ director, replied to the claimant’s email of 15 October 2018, by email to him later that day, copy produced to the Tribunal at pages 320 and 321 of the joint bundle.[76]Dr Wilson stated: “You were not dismissed from work on September 17th and you were asked to return the following Monday (September 24th). You did not appear at work and instead sent text messages at 5AM stating that you were just going to bed, and again, at 11AM stating that you were going to Patisserie Valerie on West Nile street for hot chocolate and sandwiches and asking me if I would like to join you there. You followed that up with a sick note dated September 26th claiming “Stress” and then took off for holiday to France. Upon your return from France you have visited the office, dressed in a suit and looking very fit. You stated that the sick note covered you until October 12th, after which you would seek another one, despite your evident healthy and fit appearance. If you claim that you were dismissed, why have you submitted a sick note to cover your leave from work? According to the payslips with which you have been provided, you are not due a payment of £9200 and I would ask you to submit calculations of how you have reached that figure which amounts to over 6 months’ net pay for a 40 hour week. Over the last 6 months, you have been in breach of your contract, working just 16 hours per week instead of your contracted 40 hours. As you have not turned up for work today, you will be considered as AWOL.”[77]Pages 320 and 321 of the joint bundle show that the email exchange on 15 October 2018 was 3 pages, but only pages 1 and 3 of 3 have been produced to the Tribunal. Accordingly, it is not known by the Tribunal what Dr Wilson stated after “AWOL” at the bottom of page 320.[78]On 14 November 2018, when emailing Ms Mohammed for the respondents, with copy to the Tribunal (see page 54 of the joint bundle), the claimant stated as follows: “(1). Please see the attached file is brake down the figures. There had been no investigation into the queries I raised regarding the payments. I have a right not to suffer unauthorised deductions from my wages under section 13 of the Employment Rights Act 1996. … (3) I was dismissed on 17th on September 2018 and I informed Ms. Allen (who was my lawyer at that time) in the same day: I went to work with Odyssey Enterprise Ltd. After I began to work, at 8.50, my manager approached me at my desk and said: “There is no work here for you anymore and because you took me to the employment tribunal you have to leave this office.” I explained that I took her to the tribunal because she has not paid my wages. She then continued, “You accused me of racism, you took me to the employment tribunal. No-one will give you a job in Glasgow, even Marks and Spencer’s because there will be a record of your tribunal. You have to leave here.” I explained that I had been loyal to the business and had worked very hard. I then left the office. The exchange was verbal, and I was given no written statement or confirmation of the termination of my contract. I had been told to leave at 9:15 and this had never happened to me before. I was given no warning before I was told to leave the Odyssey enterprises ltd.….”.[79]In a spreadsheet attached to his email of 14 November 2018, the claimant quantified his unpaid wages at £8,851.58. The copy email of 14 November 2018, produced at page 54 of the joint bundle, did not include that spreadsheet, but the Tribunal has it in the casefile held by Glasgow ET, and we have had regard to it. It listed, by every month, from January 2017 to September 2018, the salary which the claimant claimed to be entitled to, the amount (if any) paid, and the amount not yet paid.[80]On 14 November 2018, when replying to the respondents’ representative, Ms Mohammed, with copy to the Tribunal, as produced at page 54 of the joint bundle, the claimant stated that: “(7) The payments became irregular and hard to depend on in March 2017. I raised this with my employer, Odyssey enterprises ltd, on many occasions and that Dr Karen Wilson promised she would sort it, I was patient but could accept this no further in May 2018 when I raised a written grievance. The fact is that Dr Karen Wilson ignored me, and I am victim and discriminated because of the ignorance of Dr Karen Wilson…”[81]The Tribunal understands the claimant’s reference there to a written grievance in May 2018 to be either the reference to the Employment Tribunal (preceded by ACAS early conciliation), or the written grievance letter of 23 March 2018. Claimant’s Dismissal by the Respondents on 12 December 2018[82]The claimant received an “AWOL from employment” letter dated 16 October 2018 from Dr Wilson (see page 322 of the joint bundle), noting that his sick note expired on 12 October 2018, that he had not returned to work, and that she had been unable to contact the claimant, despite attempts to phone and leave messages for him, but there had been no reply, and asking him to make contact regarding his position. She stated that he would not be paid for days when he was scheduled to work, but he did not appear in the office, and he did not make contact with a reasonable excuse for his non-[83]Subsequently, the claimant received a “Notice of Disciplinary Hearing – AWOL” letter dated 16 October 2018 from Dr Wilson (see page 324 of the joint bundle), but posted on 16 November 2018 ( see page 323 of the joint bundle), referring to his failure to reply to her earlier letter of 16 October 2018, and giving notice that he was required to attend a disciplinary hearing, “to assess the reasons for your absence from work” , to be held at the respondents’ offices on 28 November 2018, and asking him to confirm his attendance by 23 November 2018. He was advised that he might be accompanied by a representative at the disciplinary hearing.[84]That original Notice of Disciplinary Hearing letter was thereafter followed by another on 28 November 2018 (see page 325 of joint bundle), sent by post and email to the claimant, where Dr Wilson noted that the claimant had not replied to her recent letter, and stated that the claimant was required to attend a disciplinary hearing rescheduled , again to be held at the respondents’ offices, but now on 5 December 2018, and asking him to confirm his attendance by 30 November 2018. He was again advised that he might be accompanied by a representative at the disciplinary hearing.[85]As the claimant did not respond to Dr Wilson’s letters of 16 and 28 November 2018, and he did not attend the disciplinary hearings previously arranged for him, Dr Wilson wrote to him again, by post and email, on 5 December 2018 (see page 326 of the joint bundle) noting that the claimant had not replied to her recent letters.[86]She stated that the claimant was required to attend a disciplinary hearing rescheduled, again to be held at the respondents’ offices, but now on 12 December 2018, and asking him to confirm his attendance by 7 December 2018. He was again advised that he might be accompanied by a representative at the disciplinary hearing.[87]The claimant did not attend the rescheduled disciplinary hearing arranged for 12 December 2018. Accordingly, a “Termination of Employment” letter dated 12 December 2018 (see page 327 of the joint bundle) was sent to him, by post and email, by Dr Wilson.[88]In that letter of termination, Dr Wilson wrote as follows: “The decision has been taken to end your employment with Odyssey Enterprises Ltd by reason of absence from work without leave (AWOL) for two months and failure to attend three disciplinary hearings. This letter is formal notice of the end of your employment.”[89]Dr Wilson’s letter of 12 December 2018 further advised: “The following arrangements apply to the end of your employment:(1) P45 has been issued.(2) Please hand back any company property and follow the usual procedures for claiming expenses.(3) Your final salary payment will be made on December 31st less normal deductions of tax or national insurance contributions. If you owe Odyssey Enterprises Ltd and money, by the termination date, this will be deducted from your final salary payment.(4) You will have until December 27th 2018 to appeal this decision. To do so please write to me at the above address giving full reasons for contesting the decision. Any appeal will not halt your dismissal, but if it is upheld, you will be reinstated with retrospective effect and with no loss of pay.”[90]The respondents issued the claimant with a P45 form dated 13 December 2018, giving 12 December 2018, as his leaving date, and showing total pay to date of £4,024.10. A copy of this P45 was produced to the Tribunal at page 230 of the joint bundle.[91]The claimant did not respond to any of these letters from the respondents, from 16 October to 12 December 2018, as he believed that he was dismissed and he was no longer in the employment of the respondents, after 17 September 2018.[92]The claimant believed that he had been summarily dismissed by Dr Wilson, on 17 September 2018, without notice or due process, as he regarded her actions on that date as amounting to an express dismissal from the respondents’ employment, and he had thereafter secured alternative employment from 26 November 2018.[93]The claimant did not appeal against Dr Wilson’s decision of 12 December 2018 to terminate his employment. He advised the Tribunal that he could not trust her any more. He was not issued with any final salary payment by the respondents on or about 31 December 2018, or at all. He received no notification, by way of a final payslip, or otherwise, of any final salary payment due to him. He had last been paid by the respondents on 14 August 2018, when he received a payment of £200. Second Tribunal Claim[94]The claimant presented his second claim to the Employment Tribunal, on 18 December 2018, as per the ET1 claim form produced to the Tribunal at pages 75 to 87 of the joint bundle. The detail of his claim was set out in a one-page, typewritten paper apart, at page 87 of the joint bundle. It was lodged following ACAS early conciliation on 17 September 2018, as per copy certificate lodged at page 74 of the joint bundle.[95]Dr Wilson lodged the respondents’ ET3 response resisting that second claim on 16 January 2019, but a copy was not produced to the Tribunal in the joint bundle.[96]Instead, what was produced, at pages 88 to 96, was the typewritten ET3 produced on 16 January 2019 by Ms Mohammed. In coming to our decision, the Tribunal has referred to the casefile held by the Glasgow Tribunal office, and the copy of Dr Wilson’s handwritten ET3, as accepted by the Tribunal on 17 January 2019.[97]The Tribunal having allowed amendment of the first ET1, on 18 February 2019, allowing addition of complaints of victimisation and for unpaid holiday pay, the complaint of race discrimination was withdrawn at the commencement of the Final Hearing, and the second claim was itself withdrawn, and Rule 52 judgment dated 26, and issued to parties on 30 July 2019. Claimant’s Payslips from the Respondents[98]There were produced to the Tribunal two versions of payslips issued to the claimant by the respondents.[99]As explained in the respondents’ response (submitted on 14 February 2019) to the claimant’s further and better particulars, copy produced at pages 102 to 107 of the joint bundle, at paragraph (5) on page 4 of 6 (being page 105 of the joint bundle): “There are 2 versions of the payslips submitted. The Respondent submits that the first version were draft only. The second version are the correct ones and these were the ones submitted to HMRC for PAYE.”[100]Version 1, dated from 29 February 2016 to 31 August 2018, were produced at pages 149 to 178 of the joint bundle. The first payslip dated 29 February 2016 shows gross monthly salary of £1,666.66, and net pay of £1,547.30. Those same sums are shown on the payslip, dated 31 March 2016, which also shows total gross pay to date at £6,666.64. By 30 June 2016, it shows gross pay of £1,666.66, but net pay of £1,397.50. On 31 March 2017, gross pay is shown as £1,666.00, with net pay of £1,546.72. Total gross pay to date at 31 March 2017 is shown as £4,998.00.[101]On 26 April 2017, gross salary is shown as £1,666.00, with net pay of £1,331.48, including a deduction of £75 for course expenses. Subsequent eight months show gross pay of £1,666.00, with net pay of £1,406.28. On 31 January 2018, gross salary is £833.00, with net pay of £839.84, increasing to gross salary of £1,600.00 on 28 February 2018, giving net pay of £1,361.40, and reducing to gross pay of £833.00, and net pay of £840.04 on 29 March 2018, reducing further to gross pay of £640.00 at 30 April 2018, with net pay of £640.00. Total gross pay to date at 31 March 2018 is shown as £18,260.00.[102]The claimant’s salary increases, on 31 July 2018, to gross pay of £800, with net pay of £788.24, with final payslip dated 31 August 2018 showing gross pay of £640, and net pay of £640.00. Total gross pay to date at 31 August 2018 is shown as £3,360.00.[103]Version 2, dated from 31 March 2016 to 28 September 2018, were produced at pages 179 to 201 of the joint bundle. Some of these versions show different amounts than in version 1, and there are not payslips produced for every month. The first payslip dated 31 March 2016 shows gross monthly salary of £1,666.66, and net pay of £1,547.30, as in version 1. Total gross pay to 31 March 2016 is shown as £6,666.64, as in version 1.[104]By 29 July 2016, the next payslip produced, it shows gross pay of £1,666.66, but net pay of £1,200.98, as in version 1. On 31 August 2016, it shows gross pay of £1,666.66, and net pay of £1,397.30, as in version 1. On 31 October 2016, it shows gross pay of £1,666.66, and net pay of £1,397.50, as in version 1.[105]On 26 April 2017, gross salary is shown as £1,666.00, with net pay of £1,331.48, including a deduction of £75 for course expenses, the same as in version 1. However, for 31 May 2017, gross salary is shown as £1,666.00, with net pay of £1,331.48, including a deduction of £75 for course expenses, which is not the same as in version 1. It had no such deduction, and it showed net pay of £1,406.28. Also, for 30 June 2017, gross salary is shown as £1,666.00, with net pay of £1,331.28, including a deduction of £75 for course expenses, which is not the same as in version 1. It had no such deduction, and it showed net pay of £1,406.28.[106]On 31 July 2017, gross salary is shown as £1,666.00, with net pay of £1,331.28, including a deduction of £75 for course expenses, which is not the same as in version 1. It had no such deduction, and it showed net pay of £1406.28. Further, on 31 August 2017, gross salary is shown as £1,666.00, with net pay of £1,359.85, including employer and employee pension contributions of £46.43 and £38.69, which is not the same as in version 1. It had no such deductions, and it showed net pay of £1,406.28.[107]Thereafter, at page 188 of the joint bundle, there is yet another payslip dated 31 August 2017. Gross salary is shown as £1,666.00, with net pay of £1,331.28, including a deduction of £75 for course expenses, but with no employer and employee pension contributions of £46.43 and £38.69, as shown on version 2 at page 187, and year to date totals showing no pension contributions.[108]On 29 September 2017, gross salary is shown as £1,666.00, with net pay of £1,331.28, including a deduction of £75 for course expenses, which is not the same as in version 1. It had no such deduction, and it showed net pay of £1,406.28. Thereafter, on 31 October 2017, gross salary is shown as £1,666.00, with net pay of £1,291.30, including a deduction of £75 for course expenses, and deductions of £39.98 and £33.32 for employee and employer pension contributions, which is not the same as in version 1. It had no such deductions, and it showed net pay of £1,406.28.[109]Further, on 30 November 2017, gross salary is shown as £1,666.00, with net pay of £1,331.28, including a deduction of £75 for course expenses, which is not the same as in version 1. It had no such deduction, and it showed net pay of £1,406.28. Similarly, on 29 December 2017, gross salary is shown as £1,666.00, with net pay of £1,331.28, including a deduction of £75 for course expenses, which is not the same as in version 1. It had no such deduction, and it showed net pay of £1,406.28. Likewise, on 31 January 2018, gross salary is shown as £ 833.00, with net pay of £764.84, including a deduction of £75 for course expenses, which is not the same as in version 1. It had no such deduction, and it showed net pay of £839.84.[110]On 28 February 2018, gross salary is shown as £1,600.00, with net pay of £1,286.40, including a deduction of £75 for course expenses, which is not the same as in version 1. It had no such deduction, and it showed net pay of £1,361.40. Likewise, on 29 March 2018, gross salary is shown as £ 833.00, with net pay of £635.04, including a deduction of £75 for course expenses, and a deduction of £130 for telephone abuse, which is not the same as in version 1. It had no such deductions, and it showed net pay of £840.04.[111]The version 2 payslips produced for April to August 2018 are the same as those produced in version 1. However, the version 2 section of the joint bundle includes a final payslip dated 28 September 2018, at page 201 of the joint bundle, which shows salary of £480 and “correction” of £17,639.76, producing net pay of £18,119.76.[112]That payslip shows total gross pay to date of £21,479.76, but with zero recorded against pension contributions. The claimant never received that final payslip from the respondents, nor any payment after the £200 received on 14 August 2018. As stated on the claimant’s calculation, produced at page 115 of the joint bundle: “This figure (£18119.76) is presumably an error. Neither the Claimant nor the Respondent has produced evidence of a bank transfer to support this.”[113]Further, there was also produced to the Tribunal, at pages 202 to 212 of the joint bundle, copy bank statements for the claimant, covering various dates, from 6 January 2017 to 17 October 2018, and showing payments paid into his bank account by the respondents. The last payment received by him from the respondents, on 14 August 2018, was £200.[114]Copy bank statements for the respondents, covering dates from 1 December 2015 to 6 October 2018, were produced to the Tribunal at pages 213 to 217 of the joint bundle, showing payments paid into the claimant’s bank account by the respondents. The last payment sent by the respondents to the claimant, on 14 August 2018, was £200. Payments received by the Claimant[115]At this Final Hearing, the parties were agreed as to the payments that the claimant received from the respondents in the period from March 2017 to September 2018.[116]In submitting an updated Schedule of Loss for the claimant, on 8 February 2019, the Law Clinic submitted a breakdown explaining what they then quantified as unlawful deductions from wages amounting to £7,610.42. That breakdown was produced to the Tribunal at page 115 of the joint bundle.[117]At closing submissions, it was replaced by another version, submitted on 5 July 2019, seeking £6,689.94 in respect of unlawful deductions from wages, as per an updated spreadsheet showing net wages due of £25,390.42, less net wages received of £19,037.66, leaving a difference of £6,689.94.[118]That document was produced to us as document 2, at page 3 of 56, in the claimant’s supplementary Bundle lodged with the Tribunal on 19 July 2019.[119]On 28 November 2018, the respondents’ representative, Ms Mohammed, produced a response to the claimant’s Schedule of Loss, updated with a counter-explanation. This was produced to the Tribunal at pages 116 to 134 of the joint bundle.[120]At pages 133 and 134 of the joint bundle, the respondents stated, at paragraph (3), that the salaries due to the claimant were summarised in the P60 forms issued at the end of each financial year in April 6th 2017 and 2018, and that, from April 2018 until his dismissal (on 12 December 2018), the salary due is summarised in the final payslip issued in September 2018. The claimant received no final payslip from the respondents in September 2018, or[121]In a Table 1 (Employment 01.01.2017 – 12.12.2018), the respondents stated that the gross pay due to 30th September 2018 was £27,098, and having paid £17,640.16, against net pay due of £24,166.40, the respondents calculated the deficit as £6,526.24.[122]Notwithstanding their assertion that the claimant had not been dismissed by them on 17 September 2018, as alleged by him, but denied by them, the respondents did not provide calculations to 12 December 2018, which is the date they assert was the date of effective termination of the claimant’s employment.[123]There were produced to the Tribunal, at pages 226 and 229 of the joint bundle, copy P60 end of year certificates for 2017 and 2018, issued by the respondents to the claimant for HMRC purposes, showing £4,998.00 pay in year to 5 April 2017, and £18,260.00 in tax year to 5 April 2018. These are the gross pay figures given in that Table 1.[124]While that Table 1 shows £3,840 as gross pay in 2018/19 (6 April to 30 September 2018), the copy P45 issued to the claimant and dated 13 December 2018, copy produced at page 230 of the joint bundle, shows a leaving date of 12 December 2018, and total pay to that date of £4,024.10. The difference between these differing gross amounts was not explained to the Tribunal. Deductions claimed by the Respondents[125]Further, in that same document, at paragraphs 4, 5 and 6, the respondents set forth their position as to annual leave, training expenses and telephone abuse. They calculated, in a Table 2, that the claimant was entitled to 9.3 days annual leave, and he had taken 9 days.[126]The respondents sought recovery of £1,325.58 as training expenses, as per Table 3, and, without quantifying the amount to be deducted, referred to telephone abuse, being: “MS used both mobile and office phones for his personal use making frequent lengthy international calls”, and referring to Vodafone costs, and Cloud Call costs, both unquantified.[127]There were produced to the Tribunal, at pages 233 to 299 of the joint bundle, various copy documents, being 4 Vodafone mobile phone bills to Dr Wilson dated 12 January 2017, 12 February 2018, 12 March 2018, and 11 April 2018, together with Synety phone records from October 2016 to September 2018, and (at pages 300/3011) an email from the claimant to Dr Wilson on 10 May 2018 at 17:06 about phone calls and payment.[128]As per the copy email of 10 May 2018, produced at page 300 of the joint bundle, entitled “Fw: Re: Fwd: UNAUTHORISED CALLS FROM MOBILE PHONE”, Dr Wilson’s email to the claimant refers to him having previously been warned about unauthorised use of the office telephones, and that it had been drawn to her attention by Vodafone that the claimant had exceeded the limit of his mobile phone tariff on multiple occasions, and she attached the itemised bills supplied by Vodafone for the claimant’s reference.[129]Dr Wilson had asked the claimant to go through those bills, referring in particular to a recent one, made outside of office hours, to the USA and costing almost £30. She sought his reply by 4 May 2018. He replied by email, on 5 May 2018, copy produced at page 341 of the joint bundle, saying: “Sorry I used the phone, mistakenly I just sorry for it. I have stress at the moment and feeling unwell.”[130]By email to the claimant on 8 May 2018 (again see page 341), Dr Wilson advised him: “This response is not acceptable. Please can you reply to the email I sent with the itemised Vodafone bills. Please go through these and state what you used the additional charges for.”[131]In his email reply of 10 May 2018, the claimant confirmed that he had checked the files attached by her and “because I had no salary and wasn’t able to pay my phone’s bills and I used the phone which you mentioned cots (sic) £30 but as soon as my salary pays in I will pay this £30 I explained you last time. I am in a very difficult situation and I really need my salary to pay bill.”[132]Further, in another email from the claimant to Dr Wilson, sent on 16 May 2018, copy produced at page 342 of the joint bundle, the claimant, having sought payment of the outstanding salaries due to him, also stated: “If you pay all my salaries I will be able to pay £30 of phone cost which I have to pay you. I couldn’t pay my phone’s bills. I explained to you that I am in a very bad difficult financial time. You have a contact from ACAS.”[133]The parties were not agreed as to the respondents’ entitlement to make “course expenses” deductions, as shown on the version 2 payslips, being deductions of £75 each shown on those 12 payslips dated 28 April 2017,31 May 2017,30 June 2017,31 July 2017,31 August 2017, 29 September 2017, 31 October 2017, 30 November 2017, 29 December 2017, 31 January 2018, 28 February 2018, and 29 March 2018. Those deductions total £900.[134]In the respondents’ document, produced at pages 133 and 134 of the joint bundle, Table 3 (Training Expenses) stated: “Clause 11.1 of employment contract permits recovery of training expenses which were incurred by the employee and not completed at the time of departure”. The table itemised the training expenses claimed, and stated costs were shown on American Express statement.[135]The Table 3 itemised of expense and cost was as follows: EXPENSE COST Social Talent Training Academy Programme £995.58 Flights and accommodation British Airways £230.00 Taxis and meals £100.00 Total £1325.58[136]There was produced to the Tribunal, at page 220, a copy of Dr Wilson’s American Express account, dated 13 February 2016, showing a payment of £995.58, on 8 February 2016, to Social Talent.Co, Dublin.[137]At page 218, there was produced a copy of Dr Wilson’s American Express account, dated 13 February 2016, showing a payment of £230.00, on 11 January 2016, to BA. Com UK, for flights in the claimant’s name between Glasgow International and London Heathrow airports.[138]No vouching was produced to the Tribunal by the respondents for the taxis and meals claimed at £100.[139]At this Final Hearing, it was accepted by the claimant that he had taken part in training with Social Talent at the request of the respondents’ director, Dr Wilson, in order to upskill the claimant, but he denied that it was mandatory training, and further denied that the respondents had any right to seek to recover costs from him.[140]The claimant stated that he was not liable to reimburse the respondents for any such training as the training he took part in was at the request of Dr Wilson and it took place more than 6 months before his dismissal by the respondents on 17 September 2018.[141]While the basis of how that amount of £1,325.58 was identified by the respondents as being due from the claimant as a lawful deduction from his wages has been explained by Dr Wilson at this Final Hearing, a deduction in that amount was not agreed in writing by the claimant before it was made by the respondents, and, contrary to the respondents’ assertion that it was a proper deduction in terms of the claimant’s written contract of employment with them, at clause 11, the Tribunal finds that the respondents made an unlawful deduction of wages in the sum of £900.[142]The difference between the £1,325.58 claimed, and the £900 deducted, was not the subject of any deduction by the respondents shown on any payslips issued to the claimant.[143]Further, the parties were not agreed as to the respondents’ entitlement to make “pension contribution” deductions, as shown on the version 2 payslip dated 31 August 2017 (employee @ £46.43, and employer @ £38.69), as per copy produced at page 187 of the joint bundle, although the similarly dated payslip, produced at page 188, showed no such deductions.[144]The parties were also not agreed as to the respondents’ entitlement to make “pension contribution” deductions, as shown on the version 2 payslip dated 31 October 2017 (employee @ £39.98, and employer @ £33.32), as per copy produced at page 190 of the joint bundle, and the 29 March 2018 payslip, at page 195, showing year to date totals of those two amounts. No pension contributions are shown as having been deducted at any later date.[145]The claimant’s position was that he was not a member of any pension scheme, and as he had not agreed to join a pension scheme, the respondents had no right to make deductions. If they did so, he was not clear who was the pension provider, and what were his entitlements to recover any contributions paid.[146]In the absence of fuller information from the respondents, to establish that they had the claimant’s authority to justify them making an employee pension contribution deduction of £46.43, on 31 August 2017, and there being no evidence that it was agreed in writing by the claimant before it was made by the respondents, the Tribunal finds that the respondents made an unlawful deduction of wages on that date in the sum of £46.43.[147]Finally, the parties were not agreed as to the respondents’ entitlement to make “telephone abuse” deduction of £130, as shown on the version 2 payslip dated 29 March 2018, as per copy produced at page 195 of the joint bundle.[148]The basis of how that amount of £130 was identified by the respondents as being due from the claimant as a lawful deduction from his wages has not been established in evidence before this Tribunal, it was not agreed in writing by the claimant before it was made by the respondents, and with the exception of the sum of £30 accepted by the claimant as being due by him, as per his emails of 10 and 16 May 2018 to Dr Wilson, as produced to this Tribunal, the Tribunal finds that the respondents otherwise made an unlawful deduction of £100. Holiday Pay[149]The respondents deny any liability to the claimant in relation to holiday pay. The claimant sought 11 days not taken, quantified at £836.00, in the updated Schedule of Loss dated 5 July 2019, produced as part of his supplementary Bundle, but varied that in evidence to 13 days at £800.80.[150]Originally, in their 28 November 2018 response, at pages 133 and 134 of the joint bundle, the respondents stated that the claimant’s annual leave entitlement for 1 January 2018 to 30 September 2018, taking account of his part-time work, was 9.3 days, and that he had taken leave on 9 days, being 6 days between 1 and 6 January 2018, 2 days on 13 and 14 March 2018, and one day on 21 August 2018.[151]However, in their 14 February 2019 response to the claimant’s further and better particulars, produced to the Tribunal at pages 106 and 107 of the joint bundle, the respondents’ position changed, and it was stated that the claimant had taken over the amount of holidays owed to him, and accordingly there is money owed back to the respondents for overpayment.[152]In the tabular breakdown, provided at paragraph (8) of that document, entitled “Working Time Regulations”, it is stated that, taking account of his part-time work, the claimant’s annual leave entitlement for 1 January 2018 to 30 September 2018, was 9.3 days, and that he had taken leave on 19 days, being 2 days public holiday on 1 & 2 January 2018, 4 days between 3 and 6 January 2018, 10 days between 12 and 23 March 2018, 2 days for Easter public holidays on 30 March and 2 April 2018, and one day on 21 August[153]The respondents’ inclusion of 21 August 2018 as a day of annual leave conflicts with Dr Wilson’s emails to the claimant, on 20 August 2018, as produced at pages 343 and 344 of the joint bundle, where the claimant having on 20 August 2018 requested to take one day’s holiday the next day, he was then advised by Dr Wilson that : “ I confirmed to you when we spoke that 4 weeks’ notice are required for leave applications. I cannot therefore grant leave with less than 24 hours’ notice. If you do take leave tomorrow, this will be unofficial leave.”[154]When the claimant, in reply, asked to take leave of absence on 21 August 2018, Dr Wilson replied stating that it would be “unauthorised leave”, she would need to check how many days he had left that year as he took some leave in January and February, and she confirmed that he could take 2 days on 1 and 2 October 2018 as holidays. At this Final Hearing, the respondents produced no annual leave record for the claimant.[155]In his evidence to the Tribunal, the claimant stated that he had two week’s leave following the birth of his son on 12 to 23 March 2018, which he stated he considered to be the statutory paternity leave to which he believed he was entitled, following an oral request to Dr Wilson.[156]As the claimant did not make any formal written request to the respondents seeking paternity leave, the Tribunal finds that there was no paternity leave due to him, and the 10 days annual leave taken at that time in March 2018 counts towards what he had taken as annual leave.[157]On the basis that the Tribunal is satisfied, on the material made available to it, that the claimant took more annual leave than was his entitlement in the period from 1 January to 17 September 2018, the Tribunal finds that his claim for holiday pay is not well-founded, and accordingly we make no order for payment against the respondents. Unlawful Deductions from Wages[158]As per the claimant’s supplementary Schedule of Loss, showing details of unlawful deductions from wages, as produced to the Tribunal with the claimant’s supplementary Bundle (document 2, at page 3) the sum of £6,689.94 was sought from the respondents.[159]The Tribunal, having checked the information in that document, has identified that it is in error, and that the net final figure for wages due is £6,352.76. We refer to, and incorporate here, our rationale for this recalculation, which we have included as an Appendix to this Judgment.[160]The Tribunal finds that the claimant suffered a series of deductions from his pays as follows: - - In January 2017, the claimant should have received £1,397.50 for his net monthly wage and on this occasion, he received what he was entitled to. - In February 2017, the claimant should have received £1,397.50 for his net monthly wage however, he received £1,546.72. This was an overpayment of £149.22. - In March 2017, the claimant should have received £1,397.50 for his net monthly wage however, he received £1,000.00. This was an underpayment of £397.50. - In April 2017, the claimant should have received £1,331.28 for his net monthly wage however, he received £2,093.44. This was an overpayment of £762.16. - In May 2017, the claimant should have received £1,331.28 for his net monthly wage however, he received only £300. This was an underpayment of £1,031.28. - In June 2017, the claimant should have received £1,331.28 for his net monthly wage however, he received £2,000. This was an overpayment of £1,168.72. - In July 2017, the claimant should have received £1,331.28 for his net monthly wage however, he received £1,400. This was an overpayment of £68.72. - In August 2017, the claimant should have received £1,331.28 for his net monthly wage however, he received £600. This was an underpayment of £731.28. - In September 2017, the claimant should have received £1,331.28 for his net monthly salary however, he received £200. This was an underpayment of £1,131.28. - In October 2017, the claimant should have received £1,331.28 for his net monthly wage however he received £1,500. This was an overpayment of £168.72. - In November 2017, the claimant should have received £1,331.28 for his net monthly wage however, he received £600. This was an underpayment of £731.28. - In December 2017, the claimant should have received £1,331.28 for his net monthly wage however, he received £600. This was an underpayment of £731.28. - In January 2018, the claimant should have received £1,331.28 for his net monthly wage however, he received £200. This was an underpayment of £1,131.28. - In February 2018, the claimant should have received £1,331.28 for his net monthly wage however, he received £1,500. This was an overpayment of £168.72. - In March 2018, the claimant should have received £1,331.28 for his net monthly wage however, he received £200. This was an underpayment of £1,131.28. - In April 2018, the claimant should have received £1,331.28 for his net monthly wage however, he received £1,200. This was an underpayment of £131.28. - In May 2018, the claimant should have received £1,331.28 for his net monthly wage however, he received £500. This was an underpayment of £831.28. - In June 2018, the claimant should have received £640.00 for his net monthly wage however, he received £1,000. This was an overpayment of £360.00. - In July 2018, the claimant should have received £640.00 for his net monthly wage however, he received £300. This was an underpayment of £340.00 - In August 2018, the claimant should have received £640.00 for his net monthly wage however, he received £400. This was an underpayment of £240.00 - In September 2018, the claimant should have received £640.00 for his net monthly wage however, he received £0. This was an underpayment of £640.00. - On the basis of those deductions, the Tribunal is satisfied that the claimant was subjected to unauthorised deductions from his wages, in respect of an underpayment of wages totaling £6,352.76, and the respondents should pay that amount to the claimant. - Further, there needs to be added to that sum, the further sum of £1,046.43, representing the sums unlawfully deducted from those wages (being £900 course fees, £46.43 pension contribution, and £100 for telephone costs (the admitted £30 being taken into account). - We have accordingly ordered the respondents to pay the total amount of £7,399.19 to the claimant, that being the total of the £6,352.76 underpayment of wages, plus the further £1,046.43 unlawfully deducted from those wages. Claimant’s new employment post termination by the Respondents[161]Having been dismissed by the respondents, on 17 September 2018, the claimant sought to find alternative employment from 19 September 2018 by applying for multiple jobs online. Evidence of the various roles which he applied for were produced to the Tribunal in the supplementary bundle prepared by the claimant, at pages 7 to 33.[162]The claimant found alternative employment commencing on 26 November 2018 with the Refugee Survival Trust, Glasgow. A copy of his contracts of employment with the Trust, signed on 26 and 28 November and 3 December 2018, were produced to the Tribunal, at pages 328 to 338 of the joint bundle.[163]As per the copy contract produced at pages 328 to 333, signed by the claimant on 28 November 2018, and for the Trust on 3 December 2018, it was employment for a fixed term until 17 June 2019 as an Accommodation Worker, at Robertson House, working 14 hours per week, for an annual salary of £20,705 pa, pro-rated to £8,232 pa for 14 hours pw.[164]As per the other copy contract produced at pages 334 to 338, signed by the claimant and for the Trust on 26 November 2018, it was employment for a fixed term until 17 June 2019 as a Community Engagement Coordinator, at Robertson House, working 21 hours per week, for an annual salary of £23,894 pa, pro-rated to £14,336 pa for 21 hours pw. A further copy of this contract of employment with the Trust was produced as document 11, at pages 35 to 44, of the claimant’s supplementary bundle.[165]There were also produced to the Tribunal, at pages 339 and 340 of the joint bundle, copy payslips for the claimant in that new employment with the Trust dated 31 December 2018 (showing net salary of £1,840.74) and 31 January 2019 (showing net salary of £1,508.90).[166]Further, in the claimant’s supplementary Bundle, at document 12, pages 45 to 56, there were produced further copy payslips for the claimant from the Trust between December 2018 and May 2019, including duplicates of those previously produced for December 2018 and January 2019 in the original joint bundle.[167]These further copy payslips vouched the claimant’s receipt of further earnings from that employment, with payslip dated 28 February 2019 (showing net salary of £2,168.90); 31 March 2019 (showing net salary of £1,654.54); 30 April 2019 (showing net salary of £1,487.81); and 31 May 2019 (showing net salary of £1,487.81).[168]A copy of the claimant’s bank statement, dated 9 July 2019, added to the supplementary bundle as pages 57 and 58, showed his receipt on 28 June 2019 of a salary payment of £1064.28 from the Refugee Survival Trust.[169]As at the close of the Continued Final Hearing before the Tribunal, on 19 July 2019, the claimant stated that he remained employed by the Trust, his employment having been extended after the initial fixed period appointment to 17 June 2019.[170]As at the date of the close of this Final Hearing, on 30 April 2019, even the sums which the respondents admitted were due to the claimant were still outstanding, and they had not been paid to him by the respondents.[171]Further, while the written statement and summary of jobs applied for, as provided to the Tribunal on 5 July 2019, stated that the claimant submitted 3 job applications on 19 September 2018, another 3 on 3 October 2018, and a further 6 during October, as per the Inventory of Job Applications also provided on 5 July 2019, the claimant is shown as having applied for 13 roles, in various job titles, with different prospective employers between 19 September 2018 and 25 October 2018.[172]Relevant copy paperwork was produced along with the Inventory. It shows 4 job applications by the claimant on 19 September 2018, 3 on 3 October 2018, 3 on 8 October 2018, and one each on 11, 24 and 25 October 2018. On the basis of the vouching documents produced by the claimant, the Tribunal is satisfied that the claimant made these job applications, and took reasonable steps to mitigate his losses following his dismissal by the respondents on 17 September 2018.[173]While the claimant stated in evidence at this Final Hearing that , following his dismissal on 17 September 2018, he actively pursued gainful employment, and he has produced some documents vouching that fact, the Tribunal notes and records, from his written statement provided on 5 July 2019, that the claimant there states that he received no State benefits following what he refers to as his dismissal by the respondents on 17 September 2018, and that he further states that he did make contact with Job Centre Plus after 17 September 2018, but no claim for benefits was ever made. Tribunal’s Assessment of the Evidence led before the Tribunal 63. In considering the evidence led before the Tribunal, we have had to carefully assess the whole evidence heard from the two witnesses led before us, the claimant, and Dr Wilson for the respondents, and to consider the many documents produced to the Tribunal in the Bundles of Documents lodged and used at this Final Hearing, which evidence and our assessment we now set out in the sub-paragraphs: - Mr Mahdi Saki: Claimant(1) We heard evidence from the claimant on Tuesday 19 February 2019, day 2 of 3 of the Final Hearing, continued on to the morning of the next day, 3 of 3, and again on 19 July 2019, at the Continued Final Hearing. While the claimant is Iranian, there was no request by him, or his representatives, for the Tribunal to appoint an interpreter, and, in the course of the Final Hearing, there was no concern raised that he was unable to effectively participate in the proceedings due to English not being his first language.(2) On days 2 and 3, the claimant was examined in chief by his representative, Ms Yuill, then cross-examined by Ms Mohammed for the respondents, and asked some questions of clarification by the Tribunal. In giving his evidence to the Tribunal, the claimant did so with reference, where and when appropriate, to certain documents in the(3) On 19 July 2019, at the Continued Final Hearing, the claimant’s further evidence in chief was related to giving formal oral evidence about the 12 documents (56 pages) produced in the Supplementary Bundle for the claimant, further to the updated Schedule of Loss for the claimant, seeking £23,161.67 (as per document 3, at pages 5/6 of the Supplementary Bundle).(4) That updated Schedule of Loss had been provided by the Law Clinic, on 5 July 2019, to the Tribunal, and copied to Ms Mohammed for the respondents, along with a supplementary Schedule of Loss showing details of unlawful deductions of wages, written statement of benefits received and job applications, and an inventory of job applications.(5) Ms Withers, who acted as the claimant’s representative at the Continued Final Hearing, stated that it was not necessary for the claimant to speak to these documents, so the claimant, by way of his further evidence in chief, simply stated that these were his further documents, he was familiar with them, and he sought the compensation set forth in the updated Schedule of Loss.(6) Ms Mohammed cross-examined the claimant on aspects of this further evidence, there were no questions of clarification from the Tribunal, but Ms Withers, for the claimant, had a brief re-examination of the evidence given in cross by the claimant.(7) In assessing the claimant’s evidence to the Tribunal, we noted, from the executive summary of his representative’s closing arguments to the Tribunal, at paragraphs 4 to 7, that the Law Clinic were inviting us to accept the claimant’s evidence, find him a credible and reliable witness, and to prefer his evidence, where it differed on material facts, to that given by Dr Wilson, the respondents’ witness, whom the claimant’s representatives described as “incredible and unreliable”.(8) We balanced that invitation from the Law Clinic with the contrary submissions, made by Ms Mohammed for the respondents, at page 1 of 7 of her full written submissions intimated on 16 July 2019, that Dr Wilson demonstrated to be a credible witness, compared to the claimant who was described as: “having changed the heads of claim on a number of occasions and by these very actions demonstrated that his agenda is to raise the amount of his claim as high as he can. He has as result fabricated claims where he feels this will assist him with this agenda.”(9) It is true, of course, that throughout the duration of these Tribunal proceedings, the claimant has, from time to time, provided the respondents, and the Tribunal, with conflicting information as to the actual amount which he claims to have lost by way of unlawful deductions from wages by the respondents. It has to be observed, however, that that is hardly surprising, given the fact it emerged there were two different sets of payslips for the claimant, and the respondents’ own position, as to what sums they accept he is owed, have also varied from time to time.(10) In coming to our final decision on this case, we have relied upon the final breakdown provided by the Law Clinic, and provided, in amended form, after their written closing submissions. We refer to the figures given in the revised Schedule of Loss provided on 5 July 2019, in the total sum of £23,161.67, of which £6,689.94 was the amount claimed by way of unlawful deductions from wages, as further detailed in the separate appendix attached to that Schedule.(11) Overall, we found the claimant to be a credible witness as to the material facts, even if, due to some of the confusing documentation, he appeared unreliable as to what sums he believed he was due. He was also vague about what holidays he had taken, and what holiday pay he might be due, for 2018.(12) The claimant was clear and consistent that he was due unpaid wages, and that he had been dismissed and victimised by Dr Wilson on 17 September 2018. His evidence in that regard was unequivocal and it had the ring of truth to it. He did not retract despite cross-examination by Ms Mohammed, who essentially put to him that his evidence in that particular regard was fabricated. We preferred his evidence about 17 September 2018 to that given by Dr Wilson for the respondents.(13) The claimant’s general demeanour in the witness box was cooperative, doing his best to answer questions asked by any of his own representative, Ms Mohammed for the respondents, or the Tribunal, as the case may be, to the best of his recollection, content to say he did not know, or could not remember, if he was not sure, and overall we felt that he was seeking to assist the Tribunal establish the facts, rather than being overtly defensive and evasive, which was how Dr Wilson came across to us. Dr Karen Wilson: Respondents’ Director (1) We heard evidence from Dr Wilson, the respondents’ director, on the afternoon of Wednesday, 20 February 2019, day 3 of 3 of the Final Hearing, following the close of the claimant’s evidence to the Tribunal that morning. (2) Dr Wilson is the sole director of the respondents. She was examined in chief by her company’s representative, Ms Mohammed, crossexamined by Ms Yuill for the claimant, and asked some questions of clarification by the Tribunal. In giving her evidence to the Tribunal, Dr Wilson did so with reference, where and when appropriate, to certain documents in the Joint Bundle. (3) In assessing Dr Wilson’s evidence to the Tribunal, we noted that she was generally forthcoming and respectful to questions asked of her by Ms Mohammed, but when it came to her cross-examination by Ms Yuill for the claimant, her general tone and demeanour changed, she repeatedly challenged Ms Yuill, so much so that the Judge had to warn her that Ms Yuill was asking proper and relevant questions, and the witness must answer them. (4) In particular, Dr Wilson came over as evasive when questioned about the two versions of payslips for the claimant, and why payslip amounts did not relate to sums actually paid to and received by the claimant. She denied receiving the claimant’s grievance letter of 23 March 2018, and made much of the fact that the claimant had not produced a recorded delivery receipt for it, yet she was keen to tell the Tribunal that the claimant was trying to get a high figure judgment. She could not explain why a P45 stating the claimant left on 31 December 2016 was dated 12 February 2019. (5) As the claimant’s grievance letter was some 2 months before the first ET1, it appeared that Dr Wilson did not have a proper understanding of the chronology of events in this case. Likewise, in her dealings with the claimant prior to the Tribunal Hearing, as spoken to in evidence, and recorded in documents before us, she had stated she would arrange a payment plan with the claimant, but she failed to do so. (6) Further, while she was critical of the claimant “aiming high” in the amount he was seeking from the respondents, Dr Wilson did not convince the Tribunal that she was in any way seeking to be cooperative and agree a final figure with the claimant to avoid legal proceedings, and the potential of a judgment against her company. In her evidence in chief, she referred to the claimant as having “engaged in guerrilla warfare” against her company. (7) On the matter of what happened on 17 September 2018, and whether or not she acted as the claimant alleged, she vehemently denied that allegation, but we did not believe her denial. On balance of probability, we preferred the claimant’s account. (8) Overall, we did not find Dr Wilson to be a credible or reliable witness, and it was of note to the Tribunal that while she had lodged the ET3 responses to both claims, matters emerged after Ms Mohammed was instructed that were not foreshadowed in the original defence to the claims, in particular the alleged custom and practice about payments. Generally, we preferred the claimant’s evidence to that of Dr Wilson where they differed on material facts, as his evidence tended to be consistent and credible. Parties’ Closing Submissions for the Tribunal 64. We received written closing submissions from both parties’ representatives, to which they spoke at the Continued Final Hearing on 19 July 2019, and subsequently further written representations, all of which we discuss in the following sections of these Reasons. 65. Ms Withers replied orally, at the end of her closing submissions on 19 July 2019, to the points made by Ms Mohammed in her written submissions for the respondents, and Ms Mohammed, in addressing us with her own written closing submissions, responded to those previously submitted in the claimant’s written closing submissions intimated on 12 July 2019. 66. Other than noting and recording here that, as part of her oral submissions for the claimant, Ms Withers advised us that the constructive dismissal argument (at paragraph 52 of the claimant’s full submission) was not being pursued, and the claimant’s unfair dismissal complaint was only proceeding on the basis of the alleged actual dismissal of the claimant by the respondents, on 17 September 2018, we do not record those oral submissions here, but the points raised, so far as material, we have taken into account in our private deliberations, and we deal with them later in these Reasons in our Discussion and Deliberation. Reserved Judgment 67. At the close of the Continued Final Hearing on 19 July 2019, we reserved our Judgment to be issued, with Reasons, at a later date, after private deliberation by the Tribunal in chambers. 68. As detailed earlier in these Reasons, at paragraphs53 to 56, we met on 30 August 2019, and again on 5 February 2020, which has delayed the issue of this our final Judgment and Reasons. Claimant’s Outline Written Submissions 69. On 12 July 2019, the claimant’s representatives at the Law Clinic wrote to the Tribunal, with copy to Ms Mohammed for the respondents, further to the Judge’s written Note and Orders of 21 February 2019 with the case management orders following the part heard Final Hearing, and enclosed the claimant’s outline written submissions, and an executive summary. 70. As the full outline written submission for the claimant is held on casefile by the Tribunal, it is neither appropriate, nor proportionate, to repeat its full terms here, but in coming to this our final decision, we have had regard to its full contents. The full submission runs to 64 paragraphs, over 17 typewritten pages. 71. Meantime, it will suffice for present purposes to note here the terms of the 3- page executive summary for the claimant, as provided to us, which was in the following terms:
Background
[1]The above claim is in relation to unlawful deduction of wages in terms of Section 13 of Employment Rights Act 1996, unfair dismissal in terms of Section 94 of Employment Rights Act 1996, victimisation in terms of Section 27 of Equality Act 2010 and unpaid holiday pay in terms of Regulations 13 and 16 of Working Time Regulations 1998.[2]The Claimant was employed by the Respondent, Odyssey Recruitment Ltd from February 2015 on a temporary basis and was employed on a permanent contract from 9 November 2015.[3]The Claimant submits that his employment with the Respondent ended on 17 September 2018. The Respondent disputes this and maintains that the Claimant’s employment did not end until 12 Comments on Evidence[4]The Tribunal has heard evidence from the Claimant and it is requested that the Tribunal accepts the evidence of the Claimant.[5]It is submitted that the Claimant was a credible and reliable witness. The Claimant’s account of evidence was consistent with documentary evidence. The Claimant took his time to consider questions asked of him, during examination in chief, cross examination and questions from the Panel. The Claimant remained composed and did not react aggressively under cross-examination.[6]It is submitted that in evidence Dr Wilson showed herself to be incredible and unreliable while under cross examination. This was highlighted on a number of occasions. For example, when Dr Wilson repeatedly challenged Ms. Yuill during cross-examination. She had to be warned first by Ms. Yuill and then again by Employment Judge McPherson. This was in relation to questions regarding the grievance letter sent to Dr Wilson by the Claimant. Dr Wilson was evasive in cross-examination in respect of the multiple versions of the payslips and was unable to provide a satisfactory explanation as to why multiple versions of the payslips existed.[7]The Tribunal is asked to prefer the evidence of the Claimant to that of Dr Wilson where they differ on a material fact. Findings in Fact[8]The Tribunal will be asked to make a number of findings in fact but in particular, the following are emphasised: - The amounts that were paid to and received by the Claimant from March 2017 until September 2018 is a matter of agreement between the Respondent and Claimant. It is also a matter of agreement that there are payments due to the Claimant but the extent of which is disputed. The Claimant outlines his position in full in the Schedule of Loss and accompanying Schedule of Payments and in full submissions, but the amount owed to the Claimant for the deductions between March 2017 and September 2018 totals £6689.94. - There is a dispute in facts as to when the Claimant was dismissed from his employment. It is the Claimant’s position that he was dismissed on 17 September 2018 and disputes the Respondent’s position that he was dismissed on 12 - It is the Claimant’s position that the dismissal on 17 September 2018 was because of the fact that the Claimant had raised a claim against the Respondent for unlawful deduction of wages and for race discrimination. This is based on the fact that Dr Wilson said to him “there is no more work for you here anymore and because you took me to the Employment Tribunal you have to leave this office.” The Claimant explained to Dr Wilson that he had taken the Respondent to the Employment tribunal because she had not paid his wages. Dr Wilson continued by saying you accused me of racism, you took me to the Employment Tribunal. No one will give you a job in Glasgow, even Marks and Spencer’s because there will be a record of your Tribunal. You have to leave here.” The Claimant then left the office, on the understanding that he had been dismissed. - Dr Wilson’s evidence was that she meant that there was no work for the Claimant that day and that he was not dismissed. - The Tribunal is asked to prefer the Claimant’s account of the events on 17 September 2018 on the basis that he was a more credible witness and the events that followed 17 September 2018 support his position. - The Claimant’s position is that he was entitled to 28 days annual leave as per his contract. On the basis that his employment ended on 17 September 2018 and his hours reduced to part time in May 2018, this meant that he had a leave entitlement of 13 days that year. - The Claimant maintains that the leave that he took between 12 March 2018 and 23 March 2018 was paternity leave, which he had verbally requested from Dr Wilson personally. Therefore the Claimant maintains that he is entitled to payment for 13 days annual leave, amounting to £800.80. The law applicable to the facts in this case: Unlawful deduction from wages: - Employment Rights Act 1996, Sections 13, 14, 23(3) - Deduction from Wages (Limitation) Regulations 2014 - Reid v Camphill Engravers [1990] IRLR 268 - Bear Scotland Ltd v Fulton [2015] ICR - Fulton and another v Bear Scotland Ltd (No 2) Appeal No. UKEATS/0010/16/JW Unfair Dismissal: - Employment Rights Act 1996, Section 94 - Adama v Partnerships in Care Ltd Eat 0047/14 - Tanner v D. T. Kean Ltd [1978] WL 57416 Victimisation: - Equality Act 2010, Section 27 Working Time Regulations (Holiday Pay) - Working Time Regulations 1998, Regulations 14 and 16 Submissions in law[9]That the Claimant was subjected to a series of deductions from his wages which were unlawful in terms of section 13 of the Employment Rights Act 1996 because of section 13 (3) and that any other deductions were not agreed in writing and as such were unlawful.[10]That the Claimant was dismissed on 17 September 2018 and that this dismissal was unfair as it was not for one of the potentially fair reasons as per section 98 of the Employment Rights Act 1996 and was procedurally unfair as Employers must follow the Acas Code of Practice on Disciplinary and Grievance procedures. Furthermore, this dismissal amounted to victimisation as the Respondent subjected the Claimant to a detriment, namely dismissal, because of his doing a protected act, namely raising a claim for race discrimination in terms of section 27 of the Equalities Act 2010.[11]The Claimant asks that the Tribunal finds that the Claimant suffered an unlawful deduction in terms of section 13 of Employment Rights Act 1996 and makes an award for the monies owed to him because of these deductions.[12]The Claimant asks that the Tribunal finds that the Claimant was unfairly dismissed on 17 September 2018 by the Respondent’s Director Dr Wilson, in terms of Section 94 of Employment Rights Act 1996 and makes an award of financial compensation.[13]The Claimant asks that the Tribunal finds that the Claimant was victimised in terms of section 27 of Equality Act 2010 and makes an award of financial compensation.[14]The Claimant asks that the Tribunal finds that the Claimant is owed outstanding holiday pay in terms of the Working Time Regulations 1998 and makes an award of the outstanding monies. Respondents’ Outline Written Submissions72. On 16 July 2019, the respondents’ representative, Ms Mohammed from Croner, wrote to the Tribunal, with copy to the Law Clinic for the claimant, and enclosed the respondents’ outline written submissions, and an executive summary. She sincerely apologised that, due to a misunderstanding on her part, her written submissions were lodged after the due date and time previously set by the Judge for compliance.73. Her executive summary, typewritten, ran to 24 paragraphs over 3 pages. Her full written submission, again typewritten, was 7 pages in length, with a one paragraph submission on credibility and reliability of witnesses at page 1 of 7, followed by 18 paragraphs, running over pages 2 to 7 of 7, addressing the evidence heard in respect of each specific head of claim.74. Thereafter, later on 16 July 2019, she forwarded a further copy of the executive summary with one minor adjustment, to include, at paragraph 24, a further case precedent (Patel v De Vere Group Ltd) missed on the previous version, and she simply added that into the revised document submitted.75. As the full outline written submission for the respondents is held on casefile by the Tribunal, it is neither appropriate, nor proportionate, to repeat its full terms here, but in coming to this our final decision, we have had regard to its full contents.76. Meantime, it will suffice for present purposes to note here the terms of the 3- page revised executive summary for the respondents, as provided to us, which was in the following terms: Executive Summary The Respondents would summarise their submissions as follows: Unfair Dismissal
Background
[1]The Respondent did not dismiss the Claimant on the 17th of September. The Respondent gave a credible statement of her version of the day. She was able to provide email evidence showing dialogue between her and the Claimant after the alleged dismissal by Claimant. The Tribunal is requested to hold the Respondents version of events as the more credible and reasonably likely version of events.[2]The Respondent denied saying that “there was no work for him anymore and because you took me to the employment tribunal you have to leave this office.” The Respondent requests that the tribunal accept her statement that this was not said by her. In absence of witnesses her actions after the alleged comment demonstrate that there was no intentions to dismiss.[3]The Claimants own actions, dialogues via text, submitting sickliness and also arranging to come back into the office and accessing the systems do not indicate that he believed he had been dismissed.[4]Should the Tribunal find that the words alleged by the Claimant were said by the Respondent then the Tribunal is requested to consider whether such words could reasonably be considered a dismissal where they may have been said in the heat of the moment and the actions outlined in 2 and 3 followed? The Interpretation under Tanner v Kean should be interpreted in favour of the Respondents position that there was no dismissal intended.[5]The Respondent did dismiss the Claimant on the 12th December 2018. The Respondent requests that the Tribunal find this to be the case and that the said dismissal on 12th December was a fair dismissal in terms of the law and the Burchell Test.[6]Relevant Law s.98 of the Employment Rights Act 1996 provides that misconduct is potentially a fair reason for dismissal.[7]Relevant Case Law Tanner v Kean [1978] IRLR 160 BHS v. Burchell [1978] IRLR 379 Polkey v. AB Dayton Services [1987] ICR 142 Victimisation due to Race[8]The Respondent requests that the Tribunal find that the claim is time barred. The Claimant accepts that the claim was lodged out of time but have not provided a just and equitable reason for the time limit to be extended.[9]In the event the time bar is overruled the Respondent requests that the Tribunal find that there was no dismissal on the 17th September for the reasons outlined in paragraph 1. The Tribunal is requested to accept the Respondents versions of events. The Respondent has provided a consistent version of events. In cross examination the Claimant was not able to provide explanations for why he engaged in the text conversation with the Respondent or submitted sick lines if he believed he was dismissed.[10]In the event the Tribunal feel that there was a dismissal the Respondent requests that the tribunal find that any such dismissal to have no link whatsoever with the claimants assertion that it was because he had raised a race discrimination claim. It is submitted that the Claimant had also an employment claim as well as the discrimination claim against the Respondent. The Respondent had no reason to say the things the Claimant has alleged and she requests that the Tribunal accepts her version of events.[11]The Respondent requests the Tribunal to find that the race discrimination claim was brought purely to harass the Respondent and therefore under s.27(3) are not protected acts. The Claimant initially tried to raise a claim of direct discrimination. When he realised there was no prospects of success he withdrew this claim and fabricated the victimisation claim. The victimisation provisions were not designed to protect such an act. They are designed to protect bona fide claims; not claims brought with a view to harassing the respondents to them.[12]Relevant Law S.27 of the Employment Act 2010 [Note: (sic): We have read that as an obvious error for Equality Act 2010.][13]Relevant Case Law HM Prison Service & Ors v Ibimidun Employment Appeal Tribunal | April 2, 2008 | 2008 WL 2442994 Unlawful Deduction[14]The Respondent accepts that the Claimants full time salary at the commencement of his employment (1 December 2015) was £20,000 which meant he was owed £1,666 a month salary.[15]In February 2018 the Claimant took 2 weeks unpaid study leave.[16]In March 2018 the Claimant’s hours were reduced to 16 hours a week because the Claimant requested this.[17]It was agreed between the parties that the sums paid as per page 115 was agreed.[18]The Respondent submits that there was a custom and practice in place between the Claimant and Respondent. For the entirety of the term of their relationship the Claimant has never been paid the wages shown on his payslip. The Claimant never raised any concerns in relation to this until ***** [ Note: no further text was provided.][19]In the event the tribunal do not accept that there was a custom and practice amending the terms of the written contract the Respondent requests that the Tribunal consider any claims prior to the 3 months of the application to the tribunal to be time barred.[20]In the event that the Tribunal states that there has been a series of deduction then the Respondent would submit that there are 3 months over payment to his salary on which would break any said series. (April May and June on page 115)[21]The Respondent accepts that there is money owed to the Claimant and requests that the Tribunal accept the figures submitted by the Respondent. The Claimant has not been provided accurate figures. The Respondent refers to page 115 which outlines the payments owed and payments made. Page 133 further breaks down how the payments were made. The Respondent submitted that all payments were up to date at the end of the tax year 30 March 2018. The payment amount for the year 2018/19 was then paid on a monthly agreement between the Claimant and Respondent.[22]The Respondent submits that the £4,059.06 is owed to the Claimant as per page 115 but that they are entitled to deduct from this course fees and expenses of £1,225.00 for course and expenses and £130 for unauthorised calls.[23]Relevant Law S.13 and s.14(1)(b) Employment Rights Act 1996S.23(3) of the Employment Rights Act 1996Working Time Regulations 1998[24]Relevant Case Law Reid v. Campbell Engravers [1990] IRLR 268 Bear Scotland Ltd v. Fulton [2015] ICR Patel v. De Vere Group Ltd Case No: IMA4009 para 45 to 72 Additional Written Submissions for the Claimant 77. Following the close of the Continued Final Hearing, the Tribunal wrote to both parties’ representatives, by letter dated 23 July 2019, issued on the Judge’s instructions, seeking their further written representations on certain matters, and copy documents, as more fully set out in the Tribunal’s case management orders. 78. Parties’ replies to the Tribunal’s orders were ordered by no later than 4.00pm on Friday, 26 July 2019, and the Tribunal allowed them to reply to the other party’s written representations by no later than 4.00pm the following Friday, 2 August 2019. 79. In reply to the Tribunal’s letter of 23 July 2019, the claimant’s representatives, Ms Yuill and Ms Withers, student advisors at the Law Clinic, provided to the Tribunal, by email of 24 July 2019, copied to Ms Mohammed for the respondent, their additional submissions for the claimant, along with a soft copy of the finalised amended Agreed List of Issues, and updated claimant’s Schedule of Loss (as amended during the Continued Final Hearing on 19 July 2019), as also a copy of the claimant’s payslip summary for June 2019 from his current employer, at the Refugee Survival Trust. 80. Those additional written submissions for the claimant read as follows: 1. Further to the Case Management Order issued by Employment Judge McPherson on 23 July 2019 following the Continued Final Hearing on 19 July 2019, the Claimant makes the following submissions: Chief Constable of the Police Service of Northern Ireland v Agnew and Others [2019] NICA 32 2. The case of Chief Constable of the Police Service of Northern Ireland v Agnew and Others is relevant to this case insofar as it addresses the issue of a gap of more than three months in a series of deductions and whether such a gap breaks the series. 3. It is the Claimant’s position that in this case, there was no gap of three months between any two deductions. This was addressed fully in full written submissions at paragraph 32. In this respect it is the Claimant’s position that the above case is not relevant in the particular facts of this case. 4. We submit that were the Tribunal able to follow the decision in the above case then in the event that the Tribunal found that there was a gap of more than three months between any two deductions, such a gap would not necessarily break the series of deductions and as such, the Claimant would be entitled to claim for the full series of deductions made. 5. However it is the Claimant’s position which we state in the interests of meeting our duty to the Tribunal and having been asked to comment on the case, that the judgment in the above case is not formally binding on the Employment Tribunal at this stage as it is a decision of the Northern Ireland Court of Appeal. The case expressly disagrees with Bear Scotland on the above points and is a highly persuasive authority that may well be followed at appeal level in the UK when such a case arises as the legislation interpreted in the above case, namely the Employment Rights (Northern Ireland) Order 1996 is identical to the wording in the equivalent British legislation, the Employment Rights Act 1996. However it is the Claimant’s position that as matters stand an Employment Tribunal in the UK but outwith NI, remains bound by Bear Scotland. 6. In the event that the Claimant is mistaken and that the ET is bound to be take into consideration the recent decision of the NICA then we submit as follows. 7. The discussion regarding a series of deductions in the above case is in relation to holiday pay. However the Claimant submits that the discussion is relevant to a case concerning a series of unlawful deductions in terms of sections 13 and 14 of the Employment Rights Act 1996. 8. The relevant discussion in relation to the meaning of a series of deductions can be found at paragraphs 94 to 110. 9. The Claimant would like to highlight paragraph 105 which reads: [105] As indicated in Harvey on Industrial Relations and Employment Law and as conceded by Mr Beggs holding that a three month gap breaks a series of deductions leads to arbitrary and unfair results. For instance if a three month gap broke a series it would do so when the unlawful deductions occurred consistently and persistently at six monthly intervals but not when they occurred at two monthly intervals. There is nothing in the ERO which expressly imposes a limit on the gaps between particular deductions making up a series. We do not consider that there is anything implied from the terms of the ERO which compels to such an interpretation of a series. As a matter of the proper construction of the ERO we conclude that a series is not broken by a gap of three months or more. 10. As such, it is the Claimant’s primary position that there was no gap of more than three months between any two deductions therefore there is no issue in finding a series of deductions. However, should the Tribunal find a gap of more than three months, the Claimant submits that the above should be considered highly persuasive authority to depart from the judgment in Bear Scotland Ltd v Fulton which established that a gap of three months would break a series of deductions. Saad v Southampton University Hospitals NHS Trust [2018] UKEAT/0276/17 11. The above case arose out of grievance raised by Mr Saad regarding an alleged comment which Mr Saad submitted was abusive and discriminatory on racial and religious grounds. A tribunal found that the allegation was false but that Mr Saad subjectively believed it to be true. It also found that the grievance had been raised with the ulterior motive of postponing an upcoming performance assessment. It was on this basis that the Tribunal concluded that Mr Saad had acted in bad faith and consequently dismissed his claim for victimisation under Section 27 of the Equality Act 2010. 12. However, the Employment Appeal Tribunal allowed Mr Saad’s appeal on the basis that a finding that an individual has failed to act in good faith does not automatically mean that they have acted in bad faith. The primary question is whether the worker acted honestly in giving the evidence or information. Mr Saad subjectively believed that the comment had been made and therefore raised the grievance honestly and therefore it was not done in bad faith. 13. Judge Eady QC highlighted the following at paragraph 50: 50. When determining whether an employee has acted in bad faith for the purposes of subsection 27(3) EqA, the primary question is thus whether they have acted honestly in giving the evidence or information or in making the allegation. As Burton J observed in Fenton, the issue is not the employee’s purpose but their belief. I do not say that the existence of a collateral motive could never lead to a finding of bad faith - not least because it is impossible to foresee all scenarios that might arise - but the focus should be on the question whether the employee was honest when they gave the evidence or information or made the allegation in issue. In answering that question, the ET will already have established that the evidence, information or allegation was false; that does not mean the employee acted in bad faith, although it may be a relevant consideration in determining that question (the more obviously false the allegation, the more an ET might be inclined to find that it was made without honest belief). Similarly, the employee’s motive in giving the evidence or information or in making the allegation may also be a relevant part of the context in which the ET assesses bad faith. The ET might, for example, conclude that the employee dishonestly made a false allegation because they wanted to achieve some other result, or that they were wilfully reckless as to whether the allegation was true (and thus had no personal belief in its content) because they had some collateral purpose in making it. Motivation can be part of the relevant context in which the ET assesses bad faith, but the primary focus remains on the question of the employee’s honesty. 14. It is the Claimant’s primary position that he had no ulterior motive in raising the claim for race discrimination at the time of submitting the original ET1. He had an honest belief that his treatment was related to his Iranian ethnic or national origin d or nationality. Having sought to resolve matters internally relating to the deductions being applied he then raised an ET1 and ticked the box for race discrimination based on this honest belief. 15. It is the Respondent’s position that the Claimant did have an ulterior motive, namely to harass the Respondent’s Director and or to increase the value of his claim. This is denied. 16. The Claimant submits that primary finding should be that the Claimant honestly believed that the deductions from his wages were because of or materially related to his race, specifically his ethnic or national origin and or nationality and as such his claim for victimisation arises from his treatment following a protected act based on this honest belief in terms of Section 27 of the Equality Act 2010. 17. For the avoidance of doubt the withdrawal of a complaint of indirect race discrimination in terms of the Equality Act 2010 does not detract from whether the Claimant had the honest belief and genuine concern at the time of raising the complaint. 18. For the avoidance of doubt it is denied that the protected act was done to harass the Respondent and or increase the value of his claim. Should the Tribunal so find, it might also conclude that the Claimant had an ulterior motive for raising the complaint of race discrimination. However, in the event that they were to do so, provided they find that the Claimant had a genuine concern and or honest belief that he may be receiving the deductions for discriminatory reasons because of his race, they can still conclude that the allegation was not made in bad faith following the reasoning in Saad. Additional Written Submissions for the Respondent 81. In reply to the Tribunal’s letter of 23 July 2019, Ms Mohammed, the respondents’ representative, provided, by email of 26 July 2019, her additional submissions for the respondent, along with her response to the Schedule of Loss presented at the Hearing. 82. Her additional written submissions read as follows: “Further to the Case Management Order issued by Employment Judge McPherson on 23 July 2019 following the Continued Final Hearing on 19 July 2019, in light of the 2 cases provided the Respondent makes the following submissions: Chief Constable, PSNI v Agnew [2019] NICA 32 Unlawful Deduction from Wage 1. I submit that our position remains primarily that there was no series of deductions made and that there was a custom and practice in place altering how payment was made to the Claimant with verbal agreement of the claimant. In the event this is rejected by the Tribunal we submit that there is a time bar in respect of the deductions alleged. In the event the Tribunal hold that there was a series of deductions then we would submit that any such chain is broken by 3 consecutive months of overpayment by the Respondent as detailed in my initial submissions. This case concludes: 107. Whether there is a series is question of fact to be decided in each individual case. 108. A series is not ended, as a matter of law, by a gap of more than 3 months between unlawful deductions nor is it ended by a lawful payment. 109. We agree with the formulation by Langstaff J in paragraph [79] of Bear Scotland subject to the additional words “in the alleged series.” In terms of the case application I would firstly submit that this is not a binding judgement and that the Bear Scotland precedent should remain. In the event that the case is taken as persuasive I would comment that the point of this judgement is to stop a Claimant suffering detriment where they may have a gap of 3 months due to the way they take holidays or are paid commission. In application to our case, this is not relevant. The deductions alleged are in respect of monthly wage and the Claimant was aware of what he was due and what he was paid therefore the facts of this specific case would not warrant a departure from the 3 month rule set in Bear Scotland. Saad v Southampton University Hospitals NHS Trust [2018] UKEAT/0276/17 Victimisation Claim – Unfair Dismissal 2. We submit that section 27(3) states that: "giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made in bad faith." The case in Saad is focused on this being a two part test: - 1. giving false evidence or information, or making a false allegation 2. if that then is given in bad faith This case whilst taking a different slant on the original case I have referred to still reinforces the position of the Respondent. The Respondent has submitted that there was no dismissal. The Respondent denies making the statement the Claimant has suggested she made. Therefore the allegation is entirely false. Even if we set aside the ulterior motif (sic) which we presented was to harass the Respondent the evidence provided by the Respondent showing the interactions between the Claimant and the Respondent present a highly likely scenario that the Claimant did not reasonably believe he was dismissed. He fabricated the allegation in bad faith. The Respondent submits that the tribunal take into account the evidence presented in this regard in earlier verbal and written submissions and to hold the Respondents version of events as the true events of what happened that day. I would refer you to paragraph 38 of the case. 38. Looking more closely at the wording of subsection 4(2), the EAT observed: ”41. … the first question is whether the allegation is false, not “made falsely” - that would almost render nugatory the first limb and blend it into the second limb. The simple question is whether the allegation was false. It is wrong to suggest that “false” can mean “purposely untrue”; that again blends the words … from limb one into limb two. It is enough for the Tribunal to have correctly said that “false” means “wrong, erroneous or incorrect”. … To suggest that the words “good faith” mean “with sincerity” such that consequently “bad faith” means “not with sincerity” or “treacherous” … is wrong. There may be circumstances … in which “bad faith” may carry many other connotations, but, for the purposes of the narrow issue in this case … [the question for the ET] was a simple one, namely whether the Tribunal was satisfied that Mr Fenton had made a false statement, knowing it to be false. …” The Respondent would submit that the initial case referred to in their initial submissions HM Prison Service & Ors v Ibimidun Employment Appeal Tribunal | April 2, 2008 | 2008 WL 2442994 remains good law. Consideration should therefore still be given to the allegation of racism made by the claimant regarding his alleged salary deductions which the claimant’s legal representative refers to in her submission. Our position is that the claimant worked for over three years and never perceived any racism in his work and accepted the payment arrangements in place voluntarily and without pressure. The allegation of racism was made in May 2018 before the claimant subsequently made his first claim to the employment tribunal. He claimed that deductions in his wages were the consequence of racial prejudice and not his own agreement. He claimed that another member of staff Fraser Clarke did not suffer deductions but failed to admit that Fraser’s contract and work schedule was very different from his. The claimant was unable to produce any evidence of racism or other form of discrimination and therefore made this allegation with malice in order to increase the amount of his claim. This is not a situation where the claimant misperceived an incident but an act of deliberate dishonesty. The allegation of summary dismissal was made at a later date in a similar manner to increase the value of his claim. The claimant, after his alleged dismissal, returned to the office on several occasions and was allowed admission to use his computer and present sick notes. If the claimant had believed that he had been dismissed, he would have understood that he could not return to the office and his computer would have been blocked to him. He would also understand that sick notes are not a requirement following dismissal. The claimant is acting dishonestly in making a series of false allegations in order the increase the value of his claim.” 83. Ms Mohammed’s comments on the claimant’s revised Schedule of Loss read as follows: “The Respondents responds to the updated schedule of loss provided by the Claimants rep as follows: 1. The Respondent submits that the Claimant was not dismissed until 12 December accordingly there is no loss until this date. He secured alternative employment of the employment on the 26th November which was before he was dismissed. Therefore there are no losses in this regard. 2. The Claimant has not explained was statutory rights they refer to in respect of the loss alleged. 3. In the event the Claimant is successful in his claim of victimisation the Tribunal is asked to consider any compensation be reduced as a result of the Claimants own conduct throughout this whole process. 4. The Respondent is also asked to consider the Polkey principle in the event they consider that there has been an unfair dismissal. [ Note: We have treated the word “Respondent” as in error and, read in context, it should have stated “Tribunal”.] 5. In respect of the unlawful deduction of wage we do not agree with the supplementary schedule presented. Specifically we submit that the Claimant was part time from February and furthermore that the Claimant did not present for work in September therefore there was no wages due. 6. The Respondent’s position in regards to the deductions remains as per page 115 of the bundle, a copy of which is attached here for ease.” Replies from Parties’ Representatives to those Additional Written Submissions 84. In reply to the respondents’ additional submissions, the claimant’s representatives, at the Law Clinic, provided to the Tribunal, by email of 2 August 2019, copied to Ms Mohammed for the respondent, their additional submissions for the claimant, reading as follows: “Further to Case Management Order issued by Employment Judge McPherson on 23 July 2019 following the Continued Final Hearing on 19 July 2019, the Claimant submits the following responses to the Respondents Submissions. 1. In respect of the Respondent’s submission that there has been a break in the series of deductions due to 3 consecutive months of overpayment. We have addressed much of what is said above in our original and additional submissions. We reiterate that we do not accept that there were three consecutive months of overpayments to break the chain in a series of deductions. We submit that the Claimant’s position is that there was not 3 consecutive months of overpayments as per our original submissions at page 11 paragraph[32]We do not believe the Respondents have specified where this occurs. 2. We also do not accept there is any outstanding issue of time bar other than arises from whether there is a continuing series of deductions without any gap of more than three months. We say that there is no such gap. The amendment application addressed the general time bar position relating to whether it was just and equitable for the claim to proceed. No particular submissions have been made on this point by the Respondent. 3. The Respondent indicates that their primary position is that there is no series of deductions however have conceded that there are monies owed to the Claimant - the £4,059.06 figure. The Respondent has failed to specify where exactly the £4,059.06 figure has come from (we believe they may have relied on our original schedule of payments) but from our understanding, the deductions in the 3 months backdated from the claim being raised in May 2018 don't amount to £4,059.06 suggesting therefore that they have included deductions in months prior to the three months before the claim was raised, further suggesting that there must have been a series of deductions. Further they have made deductions in their calculation for £1,030 which to the best of our knowledge had actually already been deducted from the wages due and owing and as such this is double counting of these payments which we in any event claim to be part of the unlawful deductions. We refer you to page 9 paragraph 26 of our full written submissions. 4. We do not accept that there was any custom and practice in place and refer back to the original submission made at the time opposing this at the start of the hearing. No particular evidence was led on this by the Respondent and in particular while it was originally said by the Respondent that Fraser Clark would give evidence on this he did not and indeed it was said that if he had given evidence it was to be on the issue of when the Claimant reduced his hours. 5. In respect of Respondent’s submission on Victimisation Claim – Unfair Dismissal, we would respectfully submit that the Respondent’s analysis of the victimisation claim is mistaken in its application of the Saad v Southampton University Hospitals NHS Trust [2018] UKEAT/0276/17. 6. As part of the test to establish victimisation the above case addresses the issue of good and bad faith in relation to the original allegation which forms the basis of the protected act. Thus we have asserted in our submission that the Claimant did have a genuine concern that he may be getting treated less favourably than other employees not of his ethnic or national origin. He raised these concerns and ticked the box for race discrimination in the ET1 and further elucidated on these in the course of case management hearings. We say that there was no bad faith in this and that even if he had made this allegation as a means to harass the Respondent Director according to Saad that would not change the issue of good faith/bad faith in relation to the genuine basis of the belief behind the allegation. The Respondent focusses above on the alleged act of victimisation- namely the comments of the Respondent director when dismissing the Claimant. This is a separate matter. Clearly it is the Claimant’s position that these comments were made and the Respondent director denies this. That then is a matter for the ET. However in our submission that is not related to the issues that arise from the case of Saad and on which we have addressed the Tribunal in our submission. 7. Finally and in view of the Respondent referring to the matters on which we now comment, although not strictly relevant to the case on which we were asked to comment. We reiterate that the Claimant has given a plausible explanation for all of the actions that have been referred to in the Respondent additional submission as evidence of the fact he wasn't dismissed on the 17th September 2018. We refer to his evidence that he was applying for new jobs, had contacted his lawyer, the texts about arranging to meet, showing the Respondent Director the fit note and signing onto the system to get his payslips. We ask that the Tribunal prefer the Claimant's interpretation of events in this respect based on his evidence which we submit to be credible and reliable. We refer to our full written submissions where we have discussed this before.” 8. Further, in reply to the claimant’s additional submissions, Ms Mohammed, the respondents’ representative, provided to the Tribunal, by email of 2 August 2019, copied to the claimant’s representatives, at the Law Clinic, her additional submissions for the respondent, reading as follows: “As requested by Judge Mcpherson I would make the following additional comments in respect of the additional submissions made by the Claimant which should be considered along with the additional submissions made by the Respondent: 1. The Respondent submits that the time bar is applicable to the entire claim for unlawful deduction of wage, not only holiday pay. Furthermore the claimant consented to method of payment and did not raise objection to this for over one year. 2. In terms of the victimisation claim the Claimant talks at length about the initial claim that was raised by the Claimant and his intentions at that time. I would respectfully submit that the question for the tribunal is whether the act of dismissal occurred and as such whether the Claimants story in relation to the dismissal is true. It is our position that the statement he alleges was made by the Respondent was fabricated and as such dishonest and made in bad faith. In contradiction to his claim of dismissal on September 17th 2018, he proceeded to enter the office, provide sick notes and use his computer. The use of the computer was not for the purpose of reviewing pay slips but for claiming commission to which he was not entitled. The claimant cannot access the payslips on his computer. He accesses then by email which he can obtain on any device, android, apple or pc. 3. The Claimant suggests that the withdrawal of the initial claim should not cause detriment as his intention was honest. We respectfully disagree. If the Claimant genuinely believed this was true is would be reasonable for him to continue with the claim regardless of the prospects of success. The claimant’s sole aim was to increase the value of his claim and when he realised that it was not likely to succeed, he withdrew it and sought another head of claim to replace it.” Relevant Law 85. Both parties’ written closing submissions addressed us on aspects of the relevant law, both by reference to statutory provisions, and the cases cited to us by each of the representatives. We do not understand the relevant law to be in dispute between the parties, but it is the application of that relevant law, to the facts of this case, that has required our specific judicial determination. 86. As such, we do not consider it either appropriate, or proportionate, that we set out the relevant law at length, and instead we have given ourselves a selfdirection on the relevant law and, where appropriate, we make reference to parties’ respective written closing submissions in the Discussion and Deliberation sections of these Reasons. Respondents’ renewed Application for Postponement of Continued Final Hearing refused by the Tribunal:[33]We did likewise with the claimant. Mr Saki confirmed, once sworn, that it was his substituted witness statement, he understood it represented his evidence in chief to the Tribunal, and that having recently re-read it, there was nothing in its written terms that he wished to change. We took his statement, as read. There were some questions of clarification arising for the claimant from each of the 3 members of the Tribunal and, as the respondents were not in attendance, Mr Saki was not cross-examined on his witness statement. Ms Yuill had no re-examination of the claimant, arising from the Tribunal members’ questions.[34]While, for a very short part of this Remedy Hearing, less than 5 minutes, we lost connection with Mr Taggart, a member of the Tribunal, who was calling in from a remote site, he returned without difficulty, and the evidence given by the claimant in reply to a question to him from Ms Fisher, the other Tribunal member, was reprised, and other than that, and some distracting barking noises coming, from time to time, from a dog trainer facility next to Ms Yuill’s flat, all involved in this Hearing remained in contact throughout, and there were no other technical issues with use of the CVP platform.[35]Having heard the evidence of the claimant’s wife as his only witness, and then the claimant himself, and after questions of clarification from members of the Tribunal, the evidence led closed, and we adjourned proceedings, at 11.05 am, to allow Ms Yuill to consider making her closing submissions at this Remedy Hearing, and that without any further, undue delay, the respondents not having appeared. She agreed to do so, having advised us that she had prepared a draft in contemplation of this Hearing anyway, and we agreed to reconvene the Remedy Hearing for that purpose after one hour.[36]With consent of Ms Yuill, as the claimant’s lead representative, we varied the previous case management orders made by the Judge on 23 June 2020 for that purpose, so as to allow her to address the Tribunal on this sitting day, rather than having to adjourn part-heard to another date, only for that purpose, which did not seem to us, nor her and the claimant, to be in the interests of justice, or consistent with the Tribunal’s overriding objective.[37]The previous order was made by the Judge, on 23 June 2020, at the Case Management Preliminary Hearing, against a situation where the respondents, then professionally represented by a consultant from Croner, were intending to attend the Remedy Hearing, and cross-examine the claimant and his witness, and a 7 day period for written closing submissions was agreed as being appropriate against that scenario but, as subsequent events had shown, the situation at this Remedy Hearing is that the respondents had not appeared and they were not represented, and so there had been a material change in circumstances since that order was made by the Judge, which merited it being revisited and varied by the Tribunal. Findings in Fact[38]We have not sought to set out every detail of the evidence which we heard at this Remedy Hearing, nor to resolve every difference between the parties, but only those which appear to us to be material to the task of determining an appropriate remedy for the claimant. Our material findings, relevant to the issues before us for judicial determination, based on the balance of probability, are set out below, in a way that is proportionate to the complexity and importance of the relevant issues before the Tribunal.[39]We have also borne in mind, in dealing with remedy, certain of our findings in fact, from paragraph 62 in the Reasons section from the original Judgment issued on 13 February 2020, relevant to the claimant’s dismissal by the respondents, on 17 September 2018, in particular at paragraphs 62 (43) to (50), where we found that, as a result of his unfair dismissal, and victimisation by Dr Wilson, the claimant was entitled to financial compensation, including compensation for any injury to feelings, and related to the claimant’s new employment, post-termination by the respondents, in particular at paragraph 62 (161) to (173), as they remain valid for present purposes, not having been the subject of any application for reconsideration, or appeal, by either party.[40]On the basis of the vouching documents produced by the claimant at the Final Hearing, the Tribunal was then satisfied that the claimant had made job applications, and took reasonable steps to mitigate his losses following his dismissal by the respondents on 17 September 2018, and prior to securing new employment with the Refugee Survival Trust from 26 November 2018. We also found that he had received no State benefits following his dismissal by the respondents on 17 September 2018.[41]On the basis of the evidence led before us, from the claimant and his wife, both of whom gave sworn evidence on oath, based on their previously disclosed written witness statements, and associated documentary productions, and after considering the further information included in the various emails intimated to the Tribunal, on 3 December 2020, from the claimant’s lead representative, Ms Yuill, the claimant, and the Sheriff Officer instructed by the claimant, we have found the following essential facts established:-(a) The claimant’s wife spoke to the terms of her witness statement, in particular, stating, so far as relevant for present purposes, that: 2. On 17 September 2018, my husband came home from his work quite upset. At the time, he worked for Odyssey Enterprises Ltd. He said he had been fired that morning. He told me that he had been told by his manager, Karen Wilson, that there was no work for him there because he had raised a claim with the tribunal. He told me he had not been at work all day because he had been asked to leave in the morning. Although he was fired in the morning, I think he didn’t come home until the evening because he did not know how to tell me he lost his job. I don't think he knew what to do with himself that day and he felt incredibly guilty. He was visibly upset and shaken when he told me what happened. I think he felt the way it had been done was particularly to humiliate him. He was upset that she'd let him come in to work and get set up at his desk ready for the day and then she had just told him to leave and that no-one would ever employ him. I asked him to explain to me exactly what happened, and I told him she had been very silly as it was constructive dismissal and we sent an email to his lawyer as a record. 3. He seemed shocked, like he hadn’t expected it to go that far. I don’t think he expected to lose his job. 4. Mahdi was clear that he was sacked because of the case. Karen Wilson had said to him 'there's no work for you here, you took me to the tribunal', and he'd never had a disciplinary or anything before. I think she said something about him suggesting she was racist, because the case was on race discrimination, and he explained that he had never said that. She also said no-one else would ever employ him which he was really upset about because that was a real fear. 7. Before what happened on the 17 September I had seen my husband coming home from work distressed for some time. It was a stressful environment to be working in after he raised the issue regarding his wages with ACAS and mediation to resolve the issue hadn’t worked. He initially thought that the issue would easily be resolved through ACAS. 8. I know he was very concerned about being out of work. We had a young baby. Also, I think it is different when you are a refugee. It is harder to find work. This is something that Mahdi has struggled with since he has been in Scotland. He was so happy to have that job with Odyssey Enterprises Ltd. He had worked really hard. He couldn’t have imagined that he would be in a position to be fired. 9. Mahdi’s dismissal was a big thing on both of our minds. Because I was at home on maternity leave, we would discuss it every day. In the lead up to the dismissal, he would often come home from work saying his manager, Karen Wilson, had told him she was going to pay him or that he had to wait until a specific day. He hadn’t been expecting to be dismissed. 10. I told him that it is really upsetting and a sad thing to have happened but also that it was a very silly thing for Dr Wilson to have done. I pointed out that it was probably constructive dismissal. 11. From my point of view, I thought Mahdi should have stopped working for Odyssey Enterprises prior to this because it wasn’t good for him to be working there. It was within his rights to have left. I thought that him leaving would have been constructive dismissal given everything that had been happening. But Mahdi thought that if he left, he would never get the money owed to him as unpaid salary. That’s why he had decided to reduce his hours to part time. He thought that was the best option. It didn’t make sense to keep working full time when he wasn’t getting paid. 12. When he was dismissed, I was very concerned because there was a lot of pressure and stress on him as he felt he should be providing for his family. I felt that he wasn’t always telling me everything because he didn’t want to cause me stress, given that I was on maternity leave. 13. We were worrying about paying bills when he had been dismissed. I went back to work from maternity leave 4 months earlier than planned due to Mahdi not being paid his full salary and then being sacked. I had to apply for a job on maternity leave and consequently had less time at home with our son. 14. I feel like Mahdi didn’t enjoy the time with the baby as much as he would have done because of the stress he was under. We were still able to cover our core bills, like the mortgage, but of course at the time we didn’t know the end point. We had just had a baby so worrying about providing is at the height of your mind. 15. Mahdi still continued to get phone calls and mail from Dr Wilson after he was sacked. I believe the letters were to suggest there had been a process, after the dismissal, but the phone calls were especially upsetting. Once when we were together as a family she called to say that Mahdi was faking being stressed because she knew we were going to our friends' wedding. She had also previously accused him of calling in sick and saying his father died one day when he took half a day of annual leave to go to an interview. His father died years ago and so I think the unpredictability of what he might be faced with or accused of was also stressful. For me it was upsetting that it intruded into our family life, even once he had been fired. I felt at times the phone calls bordered on harassment, Mahdi stopped answering calls from Dr Wilson and she began to use withheld numbers. As he was applying for jobs he had to answer calls with numbers he didn't recognise. 17. When Mahdi gained employment with the Refugee Survival Trust in November 2018, he was delighted to be offered a new job. Also, being a refugee himself, he felt that this job was a positive thing. He had been really concerned that he wouldn’t get new employment. It was very difficult to have to explain in interviews why his last employment had ended. Him getting this job was a huge relief. My maternity pay was our only income at that point. 18. I think that the unfair dismissal has had an impact on Mahdi’s confidence and his trust. He was very loyal to that job and worked very hard. When you are a refugee you have to prove yourself that bit more. I don’t think he would trust an employer in the same way again. I think he would be less likely to raise an issue or complain about something with an employer because of what happened. 19. It’s still on our minds because the issue hasn’t been resolved. I don’t think Mahdi is as stressed as he was every day, but it is definitely still lingering on. The outcome of the hearing helped him feel that he had been listened to. He was concerned that the respondent is a doctor and is Scottish and in a position of power. He didn’t know how he would be perceived. But knowing that he is owed money but hasn’t received it means that he can’t draw a line under this. I’m also aware that there might be wider consequences, for example we don’t know if his credit rating has been affected. Now that we are both working, it is a different type of stress than when it first happened, but it is still lingering.(b) The claimant is currently employed as Participation Manager at the Glasgow Night Shelter for Destitute Asylum Seekers. He started there on 1 July 2020. He spoke to the terms of his witness statement, in particular, stating, so far as relevant for present purposes, that : 2. My employment with the respondent, Odyssey Enterprises Ltd ended on 17 September 2018. My manager Karen Wilson approached my desk and told me that I there was no work here for me and that I had to leave because I had taken her to the Employment Tribunal. I was shocked and disappointed. She said I had to leave the office and told me that no one will give me a job, not even Marks and Spencer’s because I had taken her to the Employment Tribunal and accused her of racism. 3. The fact that she dismissed me because I had taken her to the tribunal felt so unfair. She hadn’t been paying me my salary and I had asked for it so many times. I eventually had to do something about it which is why I went to the Tribunal. This was my right. She was dismissing me for seeking justice and for trying to get my salary which was owed to me. I tried to do the right thing and it just got worse. I already had the hardship and misery of not being paid properly and then for her to decide to dismiss me instead of doing the right thing was so unfair and very sad. For her to do this, I knew that she didn’t respect me as a person. 4. I felt like she had so much power and wanted to ruin my life. She was saying that I would be unemployed with no salary. She was so angry that I had taken her to the employment tribunal. I felt that she wanted rid of me and hated me. It’s hard to explain how miserable this made me. It felt like she didn’t even treat me like a human. 11. My employment with Refugee Survival Trust started on 26 November 2018 (contract at page 19 of Joint Bundle of Productions). I signed the contract on 28 November 2018 (page 30 of Joint Bundle of Productions). My wages were more than I had been earning at Odyssey Enterprises Ltd (page 20 of Joint Bundle of Productions). I was so happy when I started this new job. 12. After I had been dismissed, I felt very panicky for a few weeks. The way that Karen Wilson had spoken to me was really sad. I couldn’t sleep for a few days. I was panicking about everything – my career, having no salary, no income, no future. I was thinking how can I support myself and my family? How can I get a new job? What can I do now? The way that she had told me I won’t get another job made me feel very alone and helpless. I felt like I was worth nothing as a consequence of the way she had treated me. She already hadn’t been paying me properly and when she said leave here and no one will give you a job, she had so much power. She made me feel like I am a guilty person even though I didn’t do anything wrong. She treated me like I was a guilty person. 13. When Karen Wilson contacted me over text message on 20 September 2018 (page 3 of Joint Bundle of Productions), she wanted me to come to the office, but I was feeling very low. I desperately wanted my salary. I told her that I couldn’t cope with the situation (page 4 of Joint Bundle of Productions). I thought that maybe she had realised that she had made a mistake in dismissing me so wanted me to come back. Or maybe she thought I would come back and keep working even though she wasn’t paying me. I was vulnerable, maybe she thought she could take advantage of me. I felt like she thought it didn’t matter how she treated me. I agreed to meet Karen Wilson because I wanted to get my salary that was owed to me and I also wanted my payslips (page 5 of Joint Bundle of Productions). I felt scared about seeing her again after what she had said to me on 17 September 2018 and felt uncomfortable about going into the office. I didn’t want to be there after everything that had happened. This is why I suggested meeting at Patisserie Valerie (page 5 of Joint Bundle of Productions). 14. I spoke to my GP, Dr Gillian MacArthur at Govanhill Health Centre, on the telephone on 21 September 2018 because of how stressed I was feeling as a consequence of how I had been treated by Karen Wilson (page 2 of Joint Bundle of Productions). I was feeling so anxious I felt I had to talk to my GP. I spoke to my GP again on 26 September 2018, again to discuss how I was feeling because of what had been going on with work and how I had been treated (page 2 of Joint Bundle of Productions). I spoke about the fact that I felt I had been racially discriminated against because another employee at Odyssey Enterprises, who was white and Scottish, was being paid properly and I was not. I felt that it was unfair that I was not being treated equally. I am sure that I mentioned the dismissal to her, so I am not sure why this has not been mentioned in her notes of these consultations. She gave me a FitNote noting that I was not fit for work because of stress. 15. My GP then referred me to a Community Link Practitioner (page 2 of Joint Bundle of Productions). Community Link Practitioners are people who work at GP surgeries and offer different support and advice. I think my GP referred me to a Community Link Practitioner because my situation was so critical it was important that I got some more support. 16. The Community Link Practitioner I spoke to was Mr Neil Girvan. I met with him on 4 October 2018 (page 2 of Joint Bundle of Productions). We discussed what had happened at Odyssey Enterprises including not being paid my salary and the dismissal. We also discussed how I was feeling about the Employment Tribunal. Even after this I was still feeling down, and I thought that this would not work for me. I was still having flashbacks and was still stressed. All I could keep thinking about was the time I worked for Karen Wilson and how badly I was treated. I was also trying to sort an application for Employment and Support Allowance at that time and discussed this with Mr Girvan. He gave me some advice and help with this. He helped to get my FitNote backdated to the date of my dismissal, 17 September 2018. 17. On 26 September 2018 I went to the office to get a copy of my payslips. When I was there, I showed my sicknote to Karen Wilson because I wanted her to know how much the way she had treated me affected me. She said that I showed no signs of sickness or stress. Karen Wilson did not believe that I had been to see my GP. At this point I was not well enough to work for anyone. 18. Looking at my medical records, I can see that Karen Wilson contacted my GP because she thought that the sicknote that said I was unfit for work because of stress was fraudulent (page 2 of Joint Bundle of Productions). I think I remember her saying that she thought the sicknote was fraudulent but I can’t remember when. To know that after everything that she had done to me, she accused me of lying about the impact it had on me is so upsetting. It is unbelievable. It upsets me even more that she said that the stress she caused me is a lie. 19. I spoke to another GP, Dr Maria Fazzi, on 2 March 2020 (page 1 of Joint Bundle of Productions). I told her that I still felt so miserable after the way that I had been treated by Karen Wilson. We discussed that I thought about how she treated me every day and that I felt I was owed an apology. 20. I think that day has affected my life. I still think about it often because we haven’t sorted out the problem yet. I feel like she is dangerous because of what she has done to me. The way she treated me hasn’t left me. Even after I was dismissed, she continued to treat me badly. 21. I still think about it all the time. I have flashbacks. I still talk to my wife about it sometimes, but I feel hopeless. I don’t know who can make it better, it is very difficult. 22. An assessment of my loss has been set out in a Schedule of Loss (page 33 of Supplementary Bundle to Joint Bundle of Productions). My representatives from the University of Strathclyde Law Clinic advised me that as I was unfairly dismissed, I am entitled to a basic award. My representatives explained that this is calculated based on my age, the number of years that I worked for Odyssey Enterprises Ltd and my weekly pay. I was thirty nine years old on the date of dismissal and had worked for Odyssey Enterprises Ltd for two years. My weekly salary at the date of dismissal was £160.00. As such, my basic award comes to £320.00. My representatives explained that I am entitled to compensation for the loss I suffered from the date of dismissal until I gained new employment with Refugee Survival Trust. I gained new employment ten weeks after I was unfairly dismissed therefore I am entitled to £1,600.00 in respect of this loss. I understand that I am also entitled to compensation for loss of statutory rights which has been set at £500.00. I have described above the impact that the victimisation has had on me. My representatives have explained the Vento guidelines which provide a guide for the amount of compensation to be awarded for injury to feelings in such cases. On this basis we have assessed my loss as the middle of the middle Vento band, at £17,150.00. My representatives explained that as the Employment Tribunal found that I had been summarily dismissed, I am entitled to an uplift of 25% as a result of Dr Karen Wilson’s failure to follow proper procedure when she dismissed me. My representatives also explained that judicial interest is available at 8 per cent per annum on the injury to feelings compensation and loss of statutory rights compensation and as such this has been included in my claim. The total amount claimed is £27,623.56.(c) The claimant’s GP records, produced as document 1 in the Joint Bundle, at pages 1 and 2, are a 2 page print out from the claimant’s GP surgery, downloaded at the Law Clinic on 18 August 2020, as per the footer on the printed document. It contains printed entries, by the claimant’s GP, of consultations between 14 November 2013 and 15 June 2020. In particular, the GP records show the following material entries : 26/09/2018 Dr Gillian MacArthur at Govanhill Health Centre Problem Stress at work. Not being paid his full salary. Has been in touch with ACAS. Works for a small recruitment firm. Had a tribuneral (sic) to state his case. He thinks he was a victim of racial discrimination…Will discuss with CLP. Appt given. Additional eMED3(2010) new statement issued, not fit for work FitNote.pdf, (diagnosis : stress ; Duration : 26/09/2018 – 12/10/2018) 04/10/2018 Mr Neil Girvan at Govanhill Health Centre Comment Explained CLP role. Pt discussed issues re employment tribunal and effect this has had on confidence and self esteem. Pt described feeling anxious and scared, pt upset. Described feelings of self doubt and guilt. Advised to make appointment with newly appointed solicitor Ms Neil. Requires sick line to be back dated to when he was “unfairly dismissed” on 17/09/2018 as would like to claim for ESA. Appt made with welfare rights advisor on 8/10/19 (sic) at 3.30pm. Discussed talking therapies -pt would like to think about this. 02/03/2020 Dr Maria Fazzi at Govanhill Health Centre History tribunal found in favour for him but says needs another medical report. Has found this experience very stressful thinks about it everyday. Still wonders why he was treated this badly by his boss. Feels she should apologise to him, and feels she never treat anyone like that again… Been physically unwell for a month with recurrent coryzal sx, cough, headache, sneezing and feeling lethargic. Taking otc cold and flu remedies Examination reasonably bright. Dry cough heard. T37.0 sats 985. Rt drum red, throat sl inflamed. chest clear. Comment chat re findings. …suggest lawyer contact us to request report formally. Medication Ibuprofen tablets 15/06/2020 Dr Anna Fields at Phone Encounter History telecons due to covid…low mood seemed to be main issue wishing to talk about. Still thinks a lot about the tribunal which was very stressful. won case but still awaiting money. took friends sertraline which helped, would like to be on this regularly. agreed 1/12 px and review.(d) In light of questions of clarification asked by the Tribunal, we have made the following further findings, as follows: (i) the claimant explained that , when he met his GP, in September 2018, it was found that he needed extra support and help, including emotional support as he was stressed and had trauma, and his mental health was affected by Dr Karen Wilson’s dismissal of him. (ii) the claimant stated that he had 4 sessions with the Community Link Practitioner from October 2018, but he could not recall the period over which these sessions with Neil Girvan took place, describing it, from recollection, as some months after his dismissal, and “a few times”. (iii) with reference to his GP records produced to the Tribunal, the claimant accepted that he had had a history of depression in 2009 to 2011, which he described as for “personal reasons”, but he described that as “very minor compared to what happened with Dr Karen.” (iv) the claimant explained that the recorded history of depression in September 2015 was when his mother was sick, and he stated that anxiety in January 2018 was over university exams, and that as he had got a new job with the Refugee Survival Trust he did not need to make any application for Employment Support Allowance. (v) further, the claimant stated that his GP records were accurate, showing that he was not at his GP very often, between 2015 and 2018, and that he had had stress symptoms from 2009, and he spoke of “flashbacks” to Dr Karen Wilson’s behaviour towards him, and that, in June 2020, he had used a friend’s medication for anxiety / depression. (vi) asked about the effect of the victimisation upon him, assessed at this date, the claimant described it as being the stress of being hopeless, asking why she (Dr Wilson) had done that to him, and never paid him, even after the Tribunal’s judgment in his favour in February 2020. He described things as being just hopeless, and asking why had this happened to him ? (vii) when asked about his new job with the Refugee Survival Trust, from November 2018, the claimant stated that he was feeling better after that, and that getting that job helped him. However, the Tribunal was ongoing, and he was waiting for a judgment in his favour. He described his feelings as being about Dr Wilson’s decision, and her attitude towards him, more than the waiting for the Tribunal’s judgment. (viii) when he received the Tribunal’s judgment, and read it, the claimant stated that he was really happy, and he felt it was fair, and he was pleased that the Tribunal had listened to him, and she (Dr Wilson) had faced judgment. While that had helped his feelings, the claimant added that she had not yet paid him what he had been awarded by the Tribunal, and he was stressed about that, as things were becoming complex. (ix) the claimant confirmed that 15 June 2020 was the last time he had consulted his GP, on the phone, that he had finished his sertraline medication in August 2020, and he is not currently on any medications. (x) being paid his Tribunal award would help him, he stated, but he had ongoing financial difficulties, and while they had planned to buy a house, Dr Wilson had not yet paid up, and so he still had bills to pay, and needed to fix things in their flat. (xi) further, added the claimant, despite getting a Tribunal extract judgment, and instructing Sheriff Officers, who served papers on the respondents at their Gordon Street, Glasgow, business address, the Sheriff Officer had reported no funds received.(e) On 10 August 2020, Roderick Macpherson, Sheriff Officer, reported to the claimant that an arrestment had been served on the Royal Bank of Scotland, as the respondents’ bankers, after a charge for payment had been served that day at the respondents’ place of business at 30 Gordon Street, Glasgow. To date, the claimant advised us in his evidence at this Remedy Hearing that the sum of £7,399.19 awarded to him by the Tribunal, in respect of unlawful deduction from wages, as per the Tribunal’s original judgment issued on 13 February 2020, remains unpaid by the respondents.(f) After the claimant received his Extract Judgment from the Tribunal, he submitted a completed Penalty Enforcement form to the relevant UK Government department BEIS (Department for Business, Energy and Industrial Strategy) in respect of the judgment in his favour for £7,399.19, as set forth in the Tribunal’s judgment issued on 13 February 2020, and the respondents’ failure to pay him that sum. While that application was acknowledged by BEIS on 14 August 2020, by letter to the claimant c/o the Law Clinic, the claimant advised us, in his evidence to this Remedy Hearing, that that sum remained unpaid, and BEIS had not yet “named and shamed” the respondents.(g) In the Schedule of Loss for the claimant, dated 7 July 2020, as reproduced as document 8, at pages 33 and 34 of the Supplementary Bundle of Productions, the following details were provided : gross and net weekly pay @ £160 ; age at dismissal : 39, and 2 years’ completed service, giving a basic award of £320, plus £1,600 for 10 weeks’ loss of net pay from employment end date with respondents on 17 September 2018 to start of new employment with the Refugee Survival Trust. The claimant did not seek any past or future wage loss past that date of new employment, but he did seek £500 for loss of statutory rights.(h) In that same Schedule of Loss, the claimant sought an award of £17,150 for injury to feelings, being non-financial loss, claimed at “mid level of mid-level Vento band on the basis of distress and uncertainty caused by treatment”, plus a 25% uplift on the compensatory award for failure to comply with ACAS Code.(i) The total award sought, at £27,623.56, was shown calculated as follows: Basic Award £320.00 Compensatory Award: Past Wage Loss £1,600.00 Future Wage Loss £0.00 Loss of Statutory Rights £500.00 Judicial interest @ 8% pa on past financial loss £115.73 Non-financial loss: Injury to Feelings £17,150.00 Judicial interest @8%pa £2,477.12£19,627.12 Compensatory award sub-total £21,842.85 % uplift for failure to comply with ACAS Code 25% Compensatory award £27,303.56 Tribunal’s Assessment of the Evidence before this Remedy Hearing[42]In considering the evidence led before the Tribunal, and the various documents produced to us, both before, and after this Remedy Hearing, we have had to carefully assess the whole evidence heard from the claimant and his wife, and assess it. They were not cross-examined, as the respondents were not in attendance, nor represented, and so they could not do so at this Remedy Hearing.[43]Equally, we note and observe that the respondents took no steps to intimate any written representations to this Tribunal about the witness statements produced by the claimant and his wife, although they were intimated to the respondents, per Dr Wilson, well in advance of the Remedy Hearing, nor to lead any evidence, or make any submissions, that any financial compensation for unfair dismissal due to the claimant should be reduced on account of his contributory conduct, and / or the Polkey principle, or that any compensation for injury to feelings should likewise be reduced on account of contributory conduct.[44]Rule 42 of the Employment Tribunals Rules of Procedure 2013 provides that the Tribunal “shall consider any written representations from a party, including a party who does not propose to attend the hearing, if they are delivered to the Tribunal and to all other parties not less than 7 days before the hearing.” Here, however, the respondents provided no such written representations. That was so, despite the clear and unequivocal terms of paragraph 133 of the Reasons to our Judgment, issued on 13 February 2020, stating that, in the interests of justice and fairness to both parties, we might require further evidence to take account of the respondents’ arguments, in their closing submissions from their then representative, Ms R Mohammed from Croner.[45]At this Remedy Hearing, we found both the claimant and his wife to be credible and reliable witnesses, as to the essential facts spoken to in their evidence , and we were satisfied that they did not embellish, or exaggerate, any of the matters about which they gave evidence to this Tribunal. The claimant was able and willing to answer questions of clarification asked by members of the full Tribunal panel, arising from what was in his witness statement, and he did not avoid or seek to evade probing questions from the panel.[46]While Mrs Saki did not give evidence at the Final Hearing, nor was any medical report, or GP witness led on the claimant’s behalf, having referred back to our notes of the claimant’s evidence, given on Tuesday, 19 February 2019, at the close of his examination in chief by Ms Yuill, the claimant was asked about the amounts shown in his then Schedule of Loss, seeking £10,000 for injury to feelings. His reply was short and succinct – he had suffered injury to feelings, he was treated unfairly, and deep stress, and he felt that he had not been treated equally, and he was so sad for days and nights, and that affected him mentally, very much. It was very unfair he should beg, again and again, for his salary.[47]Under cross-examination by Ms Mohammed, the respondents’ then representative, on 20 February 2019, the claimant stated that he was definitely, 100% sure he was dismissed on 17 September 2018, but he does not seem to have been cross-examined on the nature and extent of his alleged injured feelings.[48]When, on 20 February 2019, Dr Karen Wilson was examined in chief, about the claimant’s alleged dismissal on 17 September 2018, she stated that she did not have any knowledge that the claimant believed he had been dismissed that day, and she still believed that he was her employee after that date, until she dismissed him on 12 December 2018. The first she was aware that he was alleging he had been dismissed was on 15 October 2018, when the claimant copied Livingstone Brown, solicitors, into his email to Dr Wilson.[49]Under cross-examination by Ms Yuill for the claimant, Dr Wilson gave evidence that she did not say the words attributed to her, and that she did not dismiss the claimant, and that it was “nonsense” that she had ended his employment. She does not seem to have been cross-examined on the nature and extent of the claimant’s alleged injured feelings.[50]In closing submissions, on 19 July 2019, Ms Mohammed referred to her written response to the Schedule of Loss, and stated that “(3) in the event the claimant is successful in his claim of victimisation the Tribunal is asked to consider any compensation be reduced as a result of the Claimant’s own conduct throughout this whole process”, and “(4) The (Tribunal) is also asked to consider the Polkey principle in the event they consider that there has been an unfair dismissal.”[51]When asked by the presiding Judge, at the Final Hearing, whether she was running an argument that there should be a reduction in compensation for the claimant’s conduct, which was not further specified, Ms Mohammed’s oral response was that it related to a breakdown in trust and relationship with the employer, and had correct procedure been followed, then the claimant would have been dismissed anyway, for going AWOL as misconduct, and he did not communicate with the respondents during that disciplinary process leading to his dismissal by Dr Wilson on 12 December 2018. She also accepted, however, that she had not raised that point in evidence with the claimant at the Final Hearing in February 2019, as her focus there was on disputing a dismissal on 17 September 2018. Closing Submissions for the Claimant[52]At just after 12.05pm, when the Remedy Hearing resumed, after the one hour’s adjournment to allow Ms Yuill to prepare, we invited Ms Yuill to make her closing submissions to the Tribunal. She did so by reading from a script which she had pre-prepared for the purpose, initially designed as a draft of what she had prepared to review after close of evidence, and crossexamination by the respondents, which, of course, did not occur, as they neither attended, nor were they represented. She reviewed it during the adjournment we allowed her, after close of evidence, and before start of her delivery of her oral closing submissions to us that afternoon.[53]By email to our CVP clerk, at 11:41am, on 3 December 2020, Ms Yuill helpfully intimated a copy of an Employment Appeal Tribunal judgment that she wished to rely upon in her closing submissions for the claimant. It was Base Childrenswear Ltd v Miss N Lomana Otshudi, a judgment by Her Honour Judge Eady QC, as she then was(now Mrs Justice Eady, a High Court judge), as reported at [2019] UKEAT/0267/18.[54]At the Judge’s specific request, and as her oral delivery speed was far in excess of his best manuscript notetaking ability, despite his requests for her to moderate her delivery speed, so he could note everything said fully, Ms Yuill emailed that closing submission to the Tribunal, so that we had its full terms available to us, for our private deliberation.[55]As the respondents were not present at this Remedy Hearing, it is important that they understand the full submissions made to us. Exceptionally, we have decided it is appropriate to reproduce them here, in full, in this our Remedy Judgment, rather than merely summarise the salient points. In her written closing submissions, as intimated to the Tribunal, by email from Ms Yuill to the CVP clerk on 3 December 2020, at 13:34, she submitted as follows:- “In terms of the Schedule of Loss, the basic award is based on the finding of the Employment Tribunal of the claimant’s salary, his years of service and his age. The current loss is based on the claimant’s loss of income between the date of dismissal and the start of new employment with the Refugee Survival Trust. The claimant’s income in new employment exceeded that of his part time earnings with the respondent and therefore no net loss is calculated on an ongoing basis beyond the date he commenced his new employment. The net loss is calculated based on the net salary with the respondent multiplied by the number of weeks between the date of dismissal and his new employment, it is submitted that the tribunal found in the initial judgment that the claimant has mitigated his loss and this has been confirmed in his evidence today, his efforts to immediately find alternative employment. The claimant was asked about the severity of the impact of the act of victimisation – it is submitted that the claimant had no option but to secure alternative employment in order to secure financial security of his family but submit that this does not contradict his evidence that he was nonetheless at that time continuing to manage the impact of the act of victimisation on his mental health. There is a claim for loss of statutory rights which we have assessed at £500 but recognise this is within tribunal’s discretion Understand that the Vento bands suggest that the lower band may be applicable where it is a one off incident however the case of Base Childrenswear Ltd v Miss N Lomana Otshundi, Appeal No UKEAT/0267/18/JOJ affirms that a one off incident need not necessarily fall in the lower band, the focus must be on impact on the claimant... Base Childrenswear found an unfair dismissal which amounted to an act of racial harassment - EAT upheld the ET's decision to make an award in the middle of the middle band. “36. Moving on to the ET's assessment of injury to feelings in this case, it is right to say that, in deciding whether the case should fall within the low or middle Vento bands, an ET might think it relevant to have regard to whether the discrimination in question formed part of a continuing course of conduct (perhaps a campaign of harassment over a long period) or whether it was only a one-off act. That said, each such assessment must be fact and case specific. It is, after all, not hard to think of cases involving one-off acts of discrimination that might well justify an award falling within the middle or higher Vento brackets, or other cases involving a continuing course of conduct that are properly to be assessed as falling within the lower band. Simply describing discrimination as an isolated or one-off act may not provide the complete picture and I do not read the Vento guidance as placing a straightjacket on the ET such that it must only assess such cases as falling within the lower band. The question for the ET must always be, what was the particular effect on this individual complainant?” then discuss the impact to claimant... As in Base Childrenswear Ltd (at para 34), it is submitted that the discrimination found by the Tribunal in this case was serious. The Claimant had been employed by the Respondent for over two years. He had worked hard despite suffering unlawful deductions... he had made a number of attempts to rectify the issue with the payment of his salary with the Respondent’s director... it was only when he felt he had no alternative did he make a claim in the Employment Tribunal... He was seeking payment of the sum to which he was entitled... The Respondent’s Director treated the Claimant with a complete lack of respect or acknowledgment of the difficult situation that he was in as a result of the unlawful deductions... The dismissal came out of the blue... no proper process followed... The Respondent’s Director was explicit in her reason for dismissal... was cruel and threatening in her statement that "no one will give you a job in Glasgow..." it is submitted that as the act of victimisation was the dismissal of the claimant, it is submitted that this is a significant act and should be compensated accordingly. Whilst it is a one off act, it is sufficiently serious as to have resulted in the termination of the claimant’s employment we submit that the tribunal found in initial judgment that there was no potentially fair reason for dismissal given, and the Claimant was dismissed without notice or due process and that, as such, his dismissal was substantively and procedurally unfair. The tribunal found that it was not reasonable, in all the circumstances, to have dismissed the Claimant at that stage. Has repeatedly failed to make good on payment of sums due – including payment of final salary following the termination of his contract, leaving the claimant in an extremely vulnerable position financially in addition to the stress and anxiety that he has given evidence about suffering. As such, submit 25% uplift is appropriate Submit that the tribunal take into account Dr Wilson's behaviour following the act of victimisation and the impact this had - not paying the salary owed, the approach adopted at the initial hearing where she challenged his integrity and accused him of inflating his claims in order to claim more money, not paying the award made against her despite repeated attempts to enforce the decree following efforts to secure payment of the award in a professional manner through her legal representative, the lack of regard for the process of the Employment Tribunal in the lead up to the remedies hearing and failure to comply with relevant order... all indicative of the lack of respect that Dr Wilson has shown the claimant and supports the claimant’s evidence about the impact of her act of victimisation upon him. Submit that the Tribunal ought to have regard to the impact of the act of victimisation on the Claimant and that the fact it was a one-off act of victimisation does not necessarily mean that an award for injury to feelings must fall within the lower Vento band. Submit that when the Tribunal has regard to the factors outlined above, it ought to conclude that the impact on the Claimant was severe as to justify an award in the middle of the middle band... We are seeking judicial interest on any amount awarded from the date of victimisation being the date of dismissal to date of calculation which we assume will be today. (17 Sept) We also submit that judicial interest should be applied to the injury to feelings award. The rate in Scotland for all discrimination cases is 8%. Regulation 3(2)provides that the interest accrues at the rate prescribed from time to time by the Act of Sederunt (Interest in Sheriff Court Decrees or Extracts) 1975, which sets the rate applicable to judgments of the Sheriff Courts under section 9 of the Sheriff Courts (Scotland) Extracts Act 1892. The current figure of 8% under section 9 was set by the Act of Sederunt (Interest on Sheriff Court Decrees or Extracts) 1993. The tribunal may refuse to award interest, or may apply a different calculation, if it believes that serious injustice would otherwise result. In terms of the tribunal discretion to make judicial interest an award on the compensatory sum then it should be calculated from 26 Oct 2019 which we calculate to be the mid point from date of dismissal to the date of calculation which we assume is today.” Further Submission for the Claimant : Section 12A Financial Penalty[56]In the claimant’s evidence to us, he referred to the fact that he had not, as yet, obtained any payment from the respondents for the amount of £7,399.19 awarded to him by the Tribunal’s original judgment issued on 13 February 2020, where the Tribunal had awarded that sum to him in respect of unlawful deductions from wages made by the respondents. That was so, he said, despite obtaining an Extract of that judgment from the Tribunal, and instructing Sheriff Officers to execute diligence against the respondents.[57]After close of the evidence at this Remedy Hearing, the claimant’s representative, Ms Yuill, emailed to the CVP clerk, at 12:41 on 3 December 2020, an email forwarded by the claimant to her, forwarding an email he had received, on 10 August 2020, from Roderick Macpherson, Sheriff Officer, reporting to the claimant that an arrestment had been served on the Royal Bank of Scotland, as the respondents’ bankers, after a charge for payment had been served that day at the respondents’ place of business at 30 Gordon Street, Glasgow. We have treated that email as additional information from the claimant, and included its terms in our findings in fact earlier in these Reasons.[58]In discussion with Ms Yuill, after she came to the end of her closing submissions, it became clear that she had perhaps confused the role of the relevant UK Government department, BEIS, and the Employment Tribunal, as regards matters taken into account by her in preparing her submissions to the Tribunal about remedies from the Tribunal open to the claimant, as she stated she was unaware of the Employment Tribunal’s powers under Section 12A of the Employment Tribunals Act 1996. In those circumstances, we allowed her 7 days to consider matters, and intimate to the Tribunal clerk any further written submissions on financial penalty that she felt might be appropriate to the circumstances of the claimant’s case, and the Tribunal’s powers.[59]After close of this Remedy Hearing, the claimant’s representative, Ms Yuill, emailed to the CVP clerk, at 13:34 on 3 December 2020, two additional documents for the claimant, being(1) a completed Penalty Enforcement form to the relevant UK Government department BEIS (Department for Business, Energy and Industrial Strategy) in respect of the judgment in his favour for £7,399.19, as set forth in the Tribunal’s judgment issued on 13 February 2020, and the respondents’ failure to pay him that sum, and(2) a letter of acknowledgement from BEIS on 14 August 2020, to the claimant c/o the Law Clinic. We have treated that email with those 2 documents as additional information from the claimant, and included its terms in our findings in fact earlier in these Reasons.[60]In her further written submissions intimated to the Tribunal, by email from Ms Yuill to the CVP clerk on 4 December 2020, at 14:44, Ms Yuill made submissions, as regards financial penalty. We have reproduced them in full here, as they were not copied to the respondents, as they were not in attendance, but it is appropriate that they be sighted on them here, as follows:- 1. Further to the Remedy Hearing held on 3 December 2020 and on the oral instruction of Employment Judge McPherson, the Claimant makes the following submission. 2. S. 12A (1) of the Employment Tribunals Act 1996 provides the powers at the Employment Tribunal’s disposal: 12A Financial penalties (1) Where an employment tribunal determining a claim involving an employer and a worker— (a) concludes that the employer has breached any of the worker’s rights to which the claim relates, and (b) is of the opinion that the breach has one or more aggravating features, the tribunal may order the employer to pay a penalty to the Secretary of State (whether or not it also makes a financial award against the employer on the claim). 3. When will a financial penalty be ordered? A losing employer may be ordered to pay a financial penalty in the following circumstances: Where it is found to have breached any of the worker's rights to which the claim relates and that breach has "one or more aggravating features". The Explanatory notes for this regulation provide a non-exhaustive list of factors that can give grounds to aggravation entitling the ET to order a financial penalty. These are as follows: -• The size of the employer.• The duration of the breach of the employment right.• The behaviour of the employer and of the employee. The explanatory notes further state that an employment tribunal may be: More likely to find that the employer’s behaviour in breaching the law had aggravating features where:• the action was deliberate or committed with malice;• the employer was an organisation with a dedicated human resources team; and/or• the employer had repeatedly breached the employment right concerned. Less likely to find that the employer’s behaviour in breaching the law had aggravating features where the employer:• has only been in operation for a short period of time;• is a micro business;• has only a limited human resources function;• made a genuine mistake in committing the breach; and/or• is in formal insolvency proceedings, if imposing a penalty would have the effect of reducing the monies available to satisfy creditors, or adversely affect the sale of the business as a going concern. 4. It is submitted that following the findings in the initial judgment of 13 February 2019, the Tribunal made a determination in a claim between an employer and a worker. This judgment found that the employer breached the worker’s right to which the claim related. That being the case the Tribunal found that the Claimant was subjected to a series of unlawful deductions as well as being unfairly dismissed and that that dismissal was an act of victimisation by the Respondents. It found that the Claimant was victimised by the Respondents, by reason of his protected act, done in good faith in May 2018, when he presented his claim to the Employment Tribunal against the respondents complaining of alleged race discrimination. 5. It is submitted that the most fundamental term of an employment contract provides the right to be paid your salary. The employer is obligated to pay the employee for the work being carried out. As such by the Respondent not paying the Claimant his correct salary resulted in a breach of his rights. There is also a basic statutory right to an itemised statement of pay. 6. It is further submitted that there have one or more aggravating factors, these being:• The Respondent has always acknowledged that sums were due to Claimant. Despite repeated assurances that these sums would be paid to Claimant they never materialised. One of the considerations for the Employment Tribunal at the initial Hearing commencing on 18, 19, and 20 February 2019 and concluding 19 July 2019, was the sum of unlawful deductions due to the Claimant. At this hearing the Respondent did not dispute that the Claimant had from time to time spoken to her about not receiving his full salary. Evidence was led at this hearing showing that the Respondent acknowledged these unlawful deductions. (para 41 Hi Mehdi. I’m working out a payment plan and start from next week). Despite these assurances from the Respondent no payment plan was ever set up. The Claimant was forced to raise a grievance, a complaint within the ET, which resulted in his summary dismissal, and still further to attempt to negotiate and agree what he was due subsequent to his dismissal before the matter finally appeared before the ET. The Claimant was not given payslips that properly reflected the sums due and was then presented with a further set of payslips. In addition he was provided with two P45s. It is submitted that the findings of the ET in respect of merits of this claim support that the Respondent Director Karen Wilson obfuscated the Claimant’s entitlement to pay and the calculation of his pay and any outstanding pay due at every turn.• In addition to the above the Respondent director acted with malice towards the Claimant when he sought to protect his position in relation to the unpaid wages by raising a complaint in the ET and stating at the same time that he had a concern that the treatment he was receiving, and for which he could find no innocent explanation, was due to ethnic or national origin. She summarily dismissed him iterating that he would find no other job in Glasgow.• An award for £7,399.19 was made in favour of the Claimant in respect of the unlawful deductions, but to date the Claimant has not received payment of this award from the Respondent. The Claimant representatives engaged in discussions with the Respondent’s representative following the judgment to try and agree quantum on the compensatory awards. When this failed a remedy hearing was requested by the Claimant’s representatives.• Following the 42 day period for intimating any appeal, the Claimant’s representatives contacted the Respondent’s representative in respect of payment of the award. The Claimant’s representatives were informed by the Respondent’s representative that they had been unable to take instruction from their client. The Claimant’s representative then wrote directly to the Respondent on 3 June 2020 with a copy of the Extract of Decree. The Respondent still did not make payment, nor did they acknowledge the letter.• Due to the ongoing COVID pandemic it was not until on or around 2 August 2020 that Sheriff Officers could be instructed by the Claimant. Despite visiting the Respondents Office in Gordon Street, Glasgow and serving an arrestment on a bank account, the Respondent has still not made payment to the Claimant.• The above information has only come to light in view of the Respondent director belatedly engaging with the ET in respect of the remedy hearing and seeking to postpone same. This despite having failed to honour the original judgement issued by the ET in respect of the claim for wages. We submit that this action outlined above continues a pattern of conduct that can be taken to be both deliberate and committed with malice and that the Respondent has repeatedly breached the employment rights of the worker concerned and continues to do so. 8. It is submitted that as this claim was raised prior to 2019 the maximum value of any penalty imposed by the tribunal would be £5000. That said the conduct complained of further to the award made took place after April 2019 and it may be that in those circumstances the increased penalties now possible are available to the ET. 9. It is on the basis of the above points that we invite the tribunal to impose a penalty under terms of S.12A of the Employment Tribunals Act 1996. Where an award is made the penalty must be half of the sum awarded and therefore would amount to £3699.59. A penalty can also be issued on the further award about to be made. Reserved Judgment and Issues for the Tribunal[61]At the close of this Remedy Hearing, the presiding Judge advised the claimant, and his representative, that we would await the further additional documents and submissions to be produced, as discussed with them during the course of this Hearing, and that, after private deliberation by the full panel, in chambers, in due course, the Judge would write up the Tribunal’s reserved judgment and reasons, which would thereafter be issued to both parties.[62]Although the respondents did not participate in this Remedy Hearing, they are still a party to these Tribunal proceedings and, as such, they are entitled to a copy of this our further decision.[63]The issues for the Tribunal were to determine the appropriate remedy for the claimant, following the previous Judgment issued on 13 February 2020, for unfair dismissal, and victimisation, as well as to consider the further matter of Section 12A financial penalty raised by Ms Yuill in her further written submissions for the claimant. The unlawful deduction from wages element of the case had previously been dealt with in the Tribunal’s previous award of £7,399.19 to the claimant. It remains, unaffected by this further Remedy Judgment.[64]As we stated, in paragraph 131 of the Reasons to our Judgment, issued on 13 February 2020 : It is also partly because, in the interests of justice and fairness to both parties, we may require further evidence to take account of the respondents’ arguments, in their closing submissions, that any financial compensation for unfair dismissal due to the claimant should be reduced on account of his contributory conduct, and/or the Polkey principle, and that any compensation for injury to feelings should likewise be reduced on account of contributory conduct.[65]At this Remedy Hearing, however, we only heard from the claimant’s side, and there was no evidence led by the respondents, nor any written representations lodged on their behalf, so we are without any arguments presented by the respondents. In the absence of their attendance, or representation, we are left with a clear and distinct view that they are failing to actively pursue their resistance to the outstanding remedy to be awarded for the successful claim, if not acting otherwise unreasonably.
Relevant Law
[66]While we received closing submissions from Ms Yuill, on behalf of the claimant, we have required to give ourselves a self-direction, in the following terms, as regards the relevant law on remedy for each of the successful heads of claim left for our determination at this Remedy Hearing.[67]For the unfair dismissal head of claim, Section 94 of the Employment Rights Act 1996 provides that an employee has the right not to be unfairly dismissed by his employer. In the present case, it is clear that the claimant was summarily dismissed by the respondents, on 17 September 2018, and we have already made that declaration, in our original Judgment, issued on 13 February 2020, that the claimant was unfairly dismissed by the respondents.[68]Remedies for unfair dismissal are set forth in chapter II of part X of the Employment Rights Act 1996, in particular at Sections 112 to 126 of the Employment Rights Act 1996. In the present case, the claimant confirmed that he was not seeking an order for reinstatement, or reengagement, by the respondents, and accordingly our focus has been on what sums to award to him by way of compensation for unfair dismissal, being both a basic award, and a compensatory award.[69]Finally, we turned to the relevant law on remedy for a successful discrimination complaint. Our original Judgment, issued on 13 February 2020, has already made a finding that the claimant was discriminated against by the respondents by reason of victimisation, contrary to Section 27 of the Equality Act 2010 . Section 124 of the Equality Act 2010 makes provision about remedy in a discrimination complaint.[70]In terms of Section 124 (2), a Tribunal may(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;(b) order the respondent to pay compensation to the complainant; and(c) make an appropriate recommendation, which is defined (at Section 124 (3)) as being a recommendation that within a specified period, the respondent shall take specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate. We have already made the appropriate declaration.[71]As the claimant is no longer in the respondents’ employment, we were not invited to make any recommendation. Our focus was on compensation. Further, in terms of the Tribunal’s powers, under Section 124 (6) of the Equality Act 2010, we note and record that the amount of compensation which may be awarded under Section 124 (2) (b) corresponds to the amount which could be awarded by the Sheriff Court under Section 119. Section 119 (4) provides that an award of damages may include compensation for injured feelings, whether or not it includes compensation on any other basis.[72]Further, and because it is also relevant to remedy, we have considered the specific terms of Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, which provides that if, in the case of proceedings to which the statutory provision applies, which includes an unfair dismissal complaint, and a discrimination complaint, it appears to the Tribunal that the claim concerns a matter to which a relevant Code of Practice applies, and the employer or employee has unreasonably failed to comply with the Code in relation to that matter, then the Tribunal may, if it considers it just and equitable in all the circumstances, increase, or decrease as the case may be, the compensatory award it makes to the employee by no more than a 25% uplift, or downlift. The ACAS Code of Practice on Disciplinary and Grievance Procedures is a relevant Code of Practice.[73]Finally, as it was raised by Ms Yuill, in her further written submission for the claimant, we have had cause to reflect, in private deliberation, in writing up this reserved judgment, whether or not this is an appropriate case to consider making a financial penalty order against the respondents, in terms of Section 12A of the Employment Tribunals Act 1996 as amended by the Enterprise and Regulatory Reform Act 2013, Section 16, in circumstances where, in determining a claim involving an employer and a worker, the Tribunal concludes that the employer has breached any of the worker’s rights, and the Tribunal is of the opinion that the breach has one or more “aggravating features”.[74]Whilst the legislation itself does not define what “aggravating features” are, the UK Government’s explanatory notes suggest that some of the factors which a Tribunal may consider in deciding whether to impose a financial penalty could include the size of the employer, the duration of the breach of the employment right and the behaviour of the employer and the employee. Further, those explanatory notes also suggest that a Tribunal may be more likely to find an employer’s behaviour in breaching the law had aggravating features where the action was deliberate or committed with malice, the employer was an organisation with a dedicated HR team, or the employer had repeatedly breached the employment right concerned. Also, again as per those explanatory notes, it is suggested that a Tribunal may be less likely to find an employer’s behaviour in breaching the law had aggravating features where the organisation has only been in operation for a short period of time, it is a micro-business, it has only a limited HR function, or the breach was a genuine mistake. Discussion and Deliberation[75]In carefully reviewing the evidence led in this case, and making our findings in fact, and then applying the relevant law to those facts, we have had to consider the appropriate remedy for each of the claimants’ successful heads of claim against these respondents.[76]In terms of Section 227 of the Employment Rights Act 1996, the maximum amount of a week’s gross pay, for the purpose of calculating the basic award of compensation for unfair dismissal, shall not exceed £508 per week, for dismissals after 6 April 2018, as per the Employment Rights (Increase of Limits) Order 2018. As the claimant’s weekly gross pay was £160 that provision is not applicable in the present case.[77]Further, Section 124 of the Employment Rights Act 1996 makes provision for limits on the amount of a compensatory award, and, in particular, as per Section 124 (1ZA), the amount specified, for dismissals after 6 April 2018, is the lower of £83,682 or gross annual pay, 52 x a week’s pay of the person concerned, whichever is the smaller. As, in the present case, loss of wages was for 10 weeks, post termination of employment with the respondents, and there has been no continuing future wage loss, these limits are not applicable in the present case.[78]Other than an award for loss of statutory rights, the claimant has not made any other claim for loss of any employment benefits, or pension loss, so taking all of the above matters into account, we have decided that it is appropriate that we order that the respondents shall pay a monetary award of £2,420 to the claimant, comprising a basic award of £320 (being 2 weeks @ £160), and a compensatory award of £2,100, comprising past wage loss of £1,600 (bring 10 weeks @ £160), and loss of statutory rights at £500. These are the amounts set forth in the Schedule of Loss, and there was no challenge to those figures made by the respondents.[79]We have made no reductions, or deductions, from those sums awarded for basic and compensatory awards. There was no argument put to us, by the respondents, that there were grounds for a reduction of the basic award, under Section 122 of the Employment Rights Act 1996, nor for any reduction of the compensatory award under Section 123. As we noted earlier, at paragraph 43 above, the respondents took no steps to intimate any written representations to this Tribunal, nor to lead any evidence, or make any submissions, that any financial compensation for unfair dismissal due to the claimant should be reduced on account of his contributory conduct, and / or the Polkey principle, or that any compensation for injury to feelings should likewise be reduced on account of contributory conduct.[80]On the evidence available to the Tribunal, we are, however, satisfied that there was an unreasonable failure by the respondents to comply with the ACAS Code of Practice. In this regard, we have considered the Employment Appeal Tribunal’s judgment in Allma Construction Limited v Laing [2012] UKEATS/0041/11, an unreported judgment by Lady Smith, the then Scottish EAT judge in the Employment Appeal Tribunal, on 25 January 2012, at paragraph 29, and the more recent judicial recognition of Lady Smith’s guidance provided, at paragraphs 51 and 54 of Mr Justice Langstaff, President of the EAT’s unreported judgment of 21 October 2015 in Bethnal Green & Shoreditch Education Trust v Dippenaar [2015] UKEAT/0064/15.[81]In Allma, Lady Smith stated that : “…an employment tribunal requires to ask itself: does a relevant Code of Practice apply? Has the employer failed to comply with that Code in any respect? If so, in what respect? Do we consider that that failure was unreasonable? If so, why? Do we consider it just and equitable, in all the circumstances, to increase the claimant’s award? Why is it just and equitable to do so? If we consider that the award ought to be increased, by how much ought it to be increased? Why do we consider that that increase is appropriate?”[82]Having carefully considered the facts of the present case, the Tribunal has decided that it is just and equitable in all the circumstances to increase the compensatory award for the claimant, made under Section 118 (b) of the Employment Rights Act 1996, by 15%, rather than the 25% sought by Ms Yuill on his behalf, and accordingly we have ordered the respondents to pay to the claimant the further sum of £315, being 15% of £2,420.[83]It is appropriate to do so, at that 15% level, rather than the maximum 25% uplift. While the failure to provide a proper disciplinary process before summarily dismissing the claimant is unreasonable, and a serious breach of the Code’s provisions about what is expected of the reasonable employer, the Tribunal considers it appropriate to take into account that, while we have found the claimant was dismissed by Dr Wilson on 17 September 2018, she did not believe that she had dismissed him, as at that date.[84]Indeed, Dr Wilson took subsequent steps to invoke a disciplinary process, culminating in the claimant’s dismissal by her by letter dated 12 December 2018, a process in which the claimant did not engage, and against which the claimant did not present any appeal. Our findings in fact, at paragraph 62 (82) to (93) of our original Judgment, issued on 13 February 2020, refer in this regard. We do not consider it just and equitable to award the claimant a full 25% uplift in these circumstances, and that is why we have assessed his uplift at 15%.[85]Finally, we turn to compensation for the claimant’s successful complaint of victimisation. On his behalf, Ms Yuill has sought an award for injury to feelings. The principles to be determined when assessing awards for injury to feelings for unlawful discrimination are summarised in Armitage & Others v Johnson [1997] IRLR 162. Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the wrongdoer. Feelings of indignation at the wrongdoer’s conduct should not be allowed to inflate the award.[86]Citing from Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871 / [2003] IRLR 102, we remind ourselves that an award of injury to feelings is to compensate for “subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, stress, depression.”[87]Lord Justice Mummery said (when giving guidance in Vento) that “the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise……… tribunals have to do their best that they can on the available material to make a sensible assessment.” In carrying out this exercise, they should have in mind the summary of general principles of compensation for non pecuniary loss by given by Smith J in Armitage v Johnson”.[88]In Vento, the Court of Appeal went on to observe there to be three broad bands of compensation for injury to feelings (as distinct from compensation for psychiatric or similar personal injury). The top band should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed the normal range of awards appropriate in the top band. The middle band should be used for serious cases which do not merit an award in the highest band. The lowest band is appropriate for less serious cases such as where the act of discrimination is an isolated or one-off occurrence.[89]The appropriate sum for each band has been up rated in cases subsequent to Vento to take account of inflation, see Da’Bell v NSPCC [2010] IRLR 19 (EAT), and also to take account of the 10 per cent uplift for personal injury awards based on the Court of Appeal decision in Simmons v Castle [2012] EWCA Civ 1039. Therefore, until ET Presidential Guidance was issued, the amount appropriate for the lower band was then £660 to £6,600 and the amount appropriate to the middle band was then £6,600 to £19,800. The amount appropriate for the top band was then £19,800 to £33,000.[90]More recently, in De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, the Court of Appeal in England & Wales ruled that the 10% uplift provided for in Simmons v Castle should also apply to ET awards of compensation for injury to feelings, but it expressly recognised that it was not for it to consider the position as regards Scotland. However, account has now been taken of the position in Scotland by Employment Judge Shona Simon, the Scottish ET President, when formulating Guidance published jointly with Judge Brian Doyle, then President of ET(England & Wales), issued on 5 September 2017, and updated by annual addenda, most recently by the third addendum issued on 27 March 2020.[91]For claims presented on or after 6 April 2018, and taking account of the 10% Simmons uplift, the first addendum to the ET Presidential Guidance, issued on 29 March 2018, provided that the Vento bands would be as follows: a lower band of £900 to £8,600 (less serious cases); a middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band); and an upper band of £25,700 to £42,900 (the most serious cases), with the most exceptional cases capable of exceeding £42,900. The second addendum increased the bands to £900 / £8,800; £8,800 / £26,300; and £26,300 / £44,000, for claims on and after 6 April 2019, while the bands are now, since the third addendum, for claims on and after 6 April 2020, £900 / £9,000 ; £9,000 / £27,000 ; and £27,000 / £45,000. For the present case, the relevant bandings are those in force, for claims on and after 6 April 2018, the claimant having lodged this claim, on 18 December 2018, alleging unfair dismissal on 17 September 2018.[92]In deciding upon an appropriate amount, we first of all have had to address the appropriate band as per Vento. It is our judgment this is a case that appropriately falls into the lower band, although Ms Yuill, for the claimant, submitted to us that she regards it as falling within the middle of the middle band, and she has assessed injury to feelings @ £17,150, as per the Schedule of Loss intimated on 7 July 2020.[93]In our judgment this is a less serious case and it clearly falls within the lower Vento band. In this case, there was not any concerted campaign against the claimant, but equally it was not an isolated incident, as there were issues on the way he was treated throughout his employment with the respondents. However, we are here looking only at the established act of victimisation. As per the EAT judgment in Base Childrenswear Ltd, cited to us by Ms Yuill, we readily accept that our focus must be on the impact of the discriminatory act on the claimant. Equally, as the EAT observed, it is not uncommon for a victim of unlawful discrimination to suffer stress and anxiety.[94]We have heard evidence from the claimant, and from his wife. In considering this matter, we have reminded ourselves of the unreported EAT judgment of His Honour Judge David Richardson, in Esporta Health Clubs & Anor v Roget [2013] UKEAT 0591/12, which makes it clear that a Tribunal has to have some material evidence on the question of injury to feelings. Here, we had the claimant’s own evidence, supported by his wife’s witness statement, no GP’s medical report, nor any evidence from any other person with knowledge of the precise nature and extent of the claimant’s injured feelings, so it has been difficult for us to differentiate between any stressors caused by the respondents, any other stressors, such as the stress that any family will suffer due to a lack of regular money coming into the household, and any additional stressors caused by the claimant’s decision to prosecute this claim before the Tribunal, a feature common to all litigants.[95]The GP records produced are the GP’s record of what the claimant told the GP at the relevant time, and we note that while there was a suggestion of obtaining a medical report (as noted in the GP records as at 2 March 2020), no formal medical report has been produced, nor do we understand that it was commissioned from the GP. Further, the GP was not led as a witness before this Tribunal.[96]We have found as credible and reliable the claimant’s account of the impact of the respondents’ conduct towards him. As the claimant described it to us, and as recorded in our findings in fact above, to add insult to his hurt, whether by design or default, although the former seems more likely, the respondents never, at any later stage, sought to apologise for their treatment of him, or to pay up the sum we awarded him in respect of the unlawful deduction from wages.[97]What we considered significant, from Mrs Saki’s evidence to us, is that she described the claimant, on 17 September 2018, being “quite upset”. Her description does not tally with the level of injury to feelings suggested to us by Ms Yuill, and the GP entry for 26 September 2018 refers to stress at work, and not being paid his full salary, but there is no mention of any victimisation, only racial discrimination, which part of his claim he withdrew at the Tribunal. In the claimant’s witness statement, which we have reproduced above, in his paragraph 12, he says “I couldn’t sleep for a few days” meaning after date of dismissal. The panicky feelings he referred to were, understandably, concerns about providing for his family and worries about finding another job.[98]In considering an appropriate level of compensation for injury to feelings, the record 4/10/2018 shows the claimant wanted to think about talking therapies - and we know he only had 4 sessions in October from his oral evidence - so not only did he not engage in longer term talking therapies having been referred by his GP, he was also never prescribed medication for stress/anxiety until June 2020, and that only after he had taken a friend’s Sertraline and told his GP then when he was long gone from the respondents. From our own knowledge, we can recognise that there is often stress in a household, where a new baby has been born, and the mother is on maternity leave, and the lack of money coming in must be stressful for any family. It is also relevant, from the claimant’s background, that there was a history of depression pre-employment with the respondents.[99]Further, we recognise that people can be externally calm in demeanour and appearance, when giving evidence, yet internally in turmoil, and so we recognise that witnesses may not show their true feelings in a public Hearing, and indeed not everybody has the personality to express their true feelings in front of a Tribunal. The claimant’s statements, in his witness statement, written with time for reflection, were, we felt, at points a little melodramatic, but nonetheless genuinely expressed by him.[100]In deciding this matter, we have borne in mind the judicial guidance given by Her Honour Judge Stacey (as she then was, now Mrs Justice Stacey) in the Employment Appeal Tribunal, in Komeng v Creative Support Ltd [2019] UKEAT/0275/18, that the Tribunal’s focus should be on the actual injury to feelings suffered by the claimant and not the gravity of the acts of the respondent employer.[101]Injury to feelings awards are designed to be compensatory, not punitive, and the Tribunal needs always to bear in mind that injury to feelings awards compensate for non-pecuniary loss, but while available in discrimination and detriment cases, injury to feelings awards are not available for unfair dismissal, as per the well-known judgment of the House of Lords in Dunnachie v Kingston upon Hull City Council [2004] UKHL 36.[102]The claimant provided credible and reliable first-hand evidence about his treatment by the respondents, and the manner of it, and how that had affected him, and we found his testimony in that regard compelling and convincing. We have no doubt , having heard Mr Saki’s evidence, that he felt, and still feels, hurt about the respondents’ treatment of him, summarily dismissing him, and making no payment as yet of sums previously awarded to him by the Tribunal.[103]Applying a broad brush, we assess the amount payable to the claimant for injury to feelings for the act of victimisation that he suffered on 17 September 2018 as £4,500 in today’s money, and so that is the amount which we have ordered the respondents to pay to the claimant, as per paragraph 2(b) of our Remedy Judgment above.[104]In terms of Schedule A2 to the Trade Union & Labour Relations (Consolidation) Act 1992, Section 207A applies to unfair dismissal claims under Section 111 of the Employment Rights Act 1996 as also to discrimination at work cases under Section 120 of the Equality Act 2010. It is therefore within our powers to make an uplift, or downlift, if we consider it appropriate to do so. The claimant’s Schedule of Loss did not seek any uplift on the injury to feelings award. In these circumstances, we have decided to make no uplift for this award, but we have decided to award interest thereon.[105]While the respondents made no submissions, we deal with the point raised by Ms Mohammed in her Final Hearing closing submissions – a Polkey type deduction cannot be applied to an injury to feelings award, even if a claimant would have been fairly dismissed at a later date – the award reflects the injury to feelings caused by the knowledge that the reason for the act was discrimination, which cannot be offset by the fact that a lawful termination may have been carried out in any event : per the Court of Appeal in Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615.[106]Accordingly, we now turn to the question of interest. The Tribunal is empowered to make an award of interest upon any sums awarded pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The rate of interest prescribed by Regulation 3(2) is the rate fixed for the time being, currently an amount of 8 per cent per annum in Scotland.[107]By Regulation 6, in the case of any injury to feelings award, interest shall be for the period beginning on the date of the contravention or end of discrimination complained of and ending on the day of calculation. In the case of other sums for damages or compensation and arrears of remuneration, interest shall be for the period beginning with the mid-point date and ending on the day of calculation.[108]For these purposes, the day of calculation is today’s date, that is to say, 2 March 2021 being the date of this Judgment. The only award is for injury to feelings. Financial losses have been assessed in the separate awards made for compensation for unfair dismissal. There is no separate claim for financial loss arising from the victimisation, as the victimisation was the act of dismissal on 17 September 2018.[109]Where the Tribunal considers that a serious injustice would be caused, if interest were to be awarded for the periods in Regulation 6(1) and (2), it may, under Regulation 6(3), calculate interest for a different period, as it considers appropriate. We received no submission to that effect from either party, and , in any event, we do not consider it appropriate to do so. We cannot, of course, alter the interest rate of 8%, as that is prescribed by law, and it is a matter in respect of which we have no judicial discretion to vary the interest rate, only the period to which that rate refers.[110]Accordingly, the appropriate interest rate is 8%. Further, we also order that the respondents shall pay to the claimant the appropriate sum of interest upon the injury to feelings award of £4,500 calculated at the appropriate interest rate of 8% p.a. for the period between 17 September 2018, being the date that the claimant’s employment with the respondents ended, and that being the date of the victimisation complained of, and 2 March 2021, that being the date of this Judgment, a period of 2 years, 5 months and 14 days (a total of 898 days). Our calculation of interest payable is £4,500 x 0.08 x 898 / 365 days = £885.70, as per paragraph (2) (b) of our Remedy Judgment above.[111]Finally, we turn to Ms Yuill’s request that we consider making a financial penalty against the respondents. It is not a matter that was foreshadowed by her in her Schedule of Loss intimated to the respondents on 7 July 2020, or at any later point. It arose from discussion with the Judge at this Remedy Hearing. As it has now been raised, we consider it in the interests of justice that we give it our careful consideration.[112]While the power to make Financial Penalty Orders has been in place since 6 April 2014, it would seem that few, if any, have been made, and as such, so far as I can ascertain, there have been no appellate judgments from the Employment Appeal Tribunal on such Orders. However, the relevant law is fairly straightforward, and contained within the bounds of Section 12A. Further, we remind ourselves that the UK Government’s explanatory notes are guidance, they are not the law, but an interpretation of the law.[113]As such, we refer ourselves to the clear words of the statute, and there is no gloss, whether by appellate case law authority, or otherwise, upon the wording of Section 12A. The absence of a statutory definition of “aggravating features” is peculiar, but Parliament has so made the law, and we have to do our best to interpret its meaning, and the extent of its application.[114]In the absence of any statutory definition of those two words, it seems to us that we need to have regard to the ordinary and natural meaning of those two words as they are used in the English language. In that regard, we accept, as falling within the proper meaning and effect of those two words, the various examples cited by the explanatory notes. However, we equally well recognise that, as in all cases before the Employment Tribunal, cases are all factsensitive, and everything depends on the particular circumstances of the specific case before the Tribunal.[115]In such circumstances, we turn to the facts and circumstances of the present case. While, at the Final Hearing, we heard evidence from the claimant, and from Dr Wilson for the respondents, at this Remedy Hearing, we have not heard any evidence from the respondents, nor received any written representations, or submissions. They chose not to participate in the Remedy Hearing, which proceeded in their absence.[116]What is clear, from our original Judgment, issued on 13 February 2020, against which the respondents made no application for reconsideration, and no appeal to the Employment Appeal Tribunal, is that they infringed the claimant’s employment rights, in several ways, and we so found in our liability Judgment. Further, we are of the opinion that the breach of those rights had one or more aggravating features.[117]Specifically, we find, from the facts and circumstances of this case, as established in evidence at the Final Hearing, that the acts and omissions of the respondents, through their director, Dr Karen Wilson, were deliberate, although we do not go as far as to state that it is established that they were done with malice towards the claimant.[118]Viewed in that light, the acts and omissions of the respondents seem to us to have been more money focussed, and economically driven, in the sense of seeking to avoid any financial responsibility falling at the door of the respondents, rather than personally vindictive out of spite, or for some other improper personal motive, towards the claimant.[119]It is not evident to us, on the limited information available to the Tribunal, whether at the material time, in September 2018, the respondents had a dedicated HR team, but what is clear is that they had engaged the services of an employment consultant, from Croners, who formerly acted as their representative in these Tribunal proceedings, until she withdrew in the lead up to this Remedy Hearing. We are satisfied, from the evidence before us at the Final Hearing, that the respondents are a micro-employer.[120]Finally, from the extent of their breaches of the claimant’s employment rights, we cannot regard the respondents’ established breaches of employment law as having occurred due to a genuine mistake – their acts and omissions are indicative of failures by deliberate design, rather than by inadvertent default of their obligations, or some pretended ignorance of their statutory and contractual responsibilities as an employer.[121]In these circumstances, in terms of Section 12A (1), we are satisfied that the first part of the statutory test is met, which takes us on next to the ability of the respondents to pay, under Section 12A (2). It is provided that the Tribunal “shall have regard to the employer’s ability to pay.” That is a mandatory requirement, as evidenced by the use of the word “shall”, but it is then provided that ability to pay is to be had regard to in deciding whether to make such an order, and in deciding the amount of a penalty.[122]We also bear in mind that the power under Section 12A(1) is discretionary, as evidenced by use of the words “the Tribunal may order the employer to pay a penalty to the Secretary of State,” and in the exercise of our powers, we bear in mind the overriding objective under Rule 2 to deal with cases fairly and justly, taking into account the interests of all parties affected by these Tribunal proceedings, and not just the interests of the respondent employer as the potential paying party, where, if ordered, the ultimate recipient of any penalty is HM Exchequer, and not the claimant.[123]As the respondents did not participate in this Remedy Hearing, we have not heard from them on this application, nor on their ability to pay. Their failure to appear, or be represented, at this Remedy Hearing, is unreasonable conduct of the proceedings by them, and we consider that these features too can fall within the scope of “aggravating features”.[124]Having decided that the respondents acted in a way that a Financial Penalty Order might be made by the Tribunal, we have also asked ourselves whether we should exercise our discretion by granting the claimant’s application, and make such an Order against the respondents. We know from his evidence at this Remedy Hearing that the claimant has not received the payment ordered for the unlawful deduction from wages, for, through the Law Clinic, he wrote to the Tribunal seeking an Extract to enforce his Judgment against the respondents, and he instructed Sheriff Officers to attempt to recover the sum awarded by the Tribunal, but without success.[125]After careful and anxious reflection, we have decided that it is not appropriate for us to make such an Order against the respondents. To do so, we genuinely believe would place in jeopardy, the chances (if any) of the claimant receiving from the respondents the various amounts that we have ordered the respondents to pay to the claimant. If we were to make such an Order, the respondents might well decide to give priority of payment to the Secretary of State, rather than the claimant. In these circumstances, we have decided to refuse the application made by Ms Yuill, on behalf of the claimant, and we decline to make any Order under Section 12A against the respondents.[126]Accordingly, it is not required that we go on and decide upon an appropriate sum to award against the respondents. What we will say, at this point, is that under Section 12A(2), the Tribunal is obliged (rather than permitted) to take into account the respondent employer’s ability to pay, when considering whether or not to make an Order or how much that Order should be for. We had no information before us to consider ability to pay, and we did not consider it appropriate to seek that information from the respondents by correspondence, when there was no guarantee that they would reply, and that would simply have further delayed issue of this our Remedy Judgment.[127]A check of the Companies House online website, as at the date of this Remedy Hearing, showed the respondents as still an active company. As at 30 September 2020, they had filed the micro company accounts made up to 31 December 2019, and Dr K Wilson was still shown as the only company director. That said, we had no information as to their current trading and financial status, nor any documented, or vouched information, about their current financial circumstances, and so their ability to pay, or not.[128]Having carefully considered the claimant’s application, the Tribunal has decided to refuse the application, and make no such order in favour of the Secretary of State, considering it to be in the interests of justice to make only the monetary award of compensation for unfair dismissal, with uplift, and separate award for injury to feelings for the discriminatory act of victimisation, with interest, both payable to the claimant, as set forth at sub-paragraphs (a) and (b) of paragraph 2 of our Remedy Judgment above.[129]In summary, the Tribunal therefore orders that the respondents shall pay to the claimant, in terms of this Remedy Judgment, the total amount of £8,120.70. The sum of £7,399.19, previously awarded, in respect of unlawful deduction of wages, as per our original Judgment, issued on 13 February 2020, remains unaffected by this further Judgment.