Mr J Harrison v Mr D May T/a Leeds Gymnastics Academy: 6000187/2024
EMPLOYMENT TRIBUNALS
Case No 6000187/2024
Between
Mr J HarrisonClaimantMr D May T/a Leeds Gymnastics AcademyRespondent
Before
Employment Judge MillerIn person for claimantNot represented for respondentDate 10 December 2025
JUDGMENT
[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages on 22 November 2023.[2]The respondent shall pay the claimant £684, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance.[3]The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the award payable to the claimant by 25 % in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992. The respondent shall pay the claimant the further sum of £55.20[4]The complaint in respect of holiday pay is well-founded. The respondent made an unauthorised deduction from the claimant's wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.[5]The respondent shall pay the claimant £220.80. The claimant is responsible for paying any tax or National Insurance.[6]The complaint of indirect disability discrimination is well-founded and succeeds.[7]The respondent shall pay the claimant the following sums: Case number: 6000187/2024 Compensation for past financial losses: £2,250 The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the award payable to the claimant by 25 % in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992£562.50 Interest on compensation for past financial losses calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £102.55 Compensation for injury to feelings: £11,000 The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the award payable to the claimant by 25 % in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992£3,750 Interest on compensation for injury to feelings calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996£1,115.34 Total sum payable for Discrimination £18,780.39 Ian Miller
REASONS
[1]The respondent did not attend this hearing. The claimant attended and gave a witness statement and we heard oral evidence from him. The claimant’s mother, Mrs Harrison, also attended and gave a witness statement and we heard evidence from her.[2]We decided under Rule 47 of the Employment Tribunal Rules of Procedure 2013 to go ahead in the absence of the respondent, having regard to the information that was on the Tribunal file. A decision had been made and communicated to the respondent on 16 December 2024 that the hearing was going to go ahead despite his application for postponement made on 11 December 2024. The claimant set out in response to that application a detailed Case Number: 6000187/2024 2 and well-reasoned explanation why the hearing should go ahead. In our judgment it was in the interests of justice to continue do so and we have done so. The consequence of that is that the respondent has not had the opportunity to give evidence or challenge the claimant’s evidence.[3]The claims and issues to be decided at this hearing were agreed at a case management hearing on 25 July 2024 and that list of claims and issues is attached as an appendix to these reasons. Chronological findings of fact[4]The claimant applied for a job with the respondent as a trampolining coach and was offered the job in an email dated 19 September 2023. The job was for 12 hours a week paid at £12 an hour working as a trampolining coach at the respondent’s gym in Leeds. The claimant was told in an email of 19 September 2023 that his employment would be subjected to a 12 week probationary period and his wages would be reviewed at the end of that.[5]The first email on 19 September 2023 enclosed a contract of employment and the claimant was given a limited period in which to sign it. The relevant terms of that contract are:[6]7.5, which deals with holidays. “Holidays must be as per policy set out in the staff handbook. The handbook is for only (sic) and does not form part of this contract”[7]We note here, although we may mention it again later, the claimant asked for but was never given a copy of that handbook.[8]7.5.1 says “You must find your own cover for any leave which you take. The cover must be both appropriate and suitably qualified. Failure to find cover resulting in lessons being cancelled would be a disciplinary issue, and the company reserves the right to seek reimbursement as a deduction from salary due to any loss and damage arising from your failure to follow the policy”.[9]The contract also provides that the claimant is entitled to 67.2 hours per year holiday which is in accordance with the statutory minimum.[10]The other relevant contractual terms are 9.1 which says “The contract is terminable by the employer giving statutory minimum notice (other than in the case of summary dismissal for gross misconduct) or by the employee giving 90 days written notice or three (3) months’ gross salary in lieu of notice”[11]and 9.2 says “In the case of 90 days’ notice not being served the company shall make a deduction from salary to reduce the loss and damage suffered by the company. County Court action will be taken to recover the balance set out in Clause 9.1”.[12]The claimant signed and agreed to that contract. Case Number: 6000187/2024 3[13]The claimant took the job expecting to be able to train people at a certain level and undertake training and mentorship at the respondent’s expense to progress his coaching qualifications.[14]The claimant started work on 24 September 2023 but soon found that the role was not as he had anticipated. He was not offered coaching or mentorship at the level on the terms he believed he required to be able to progress and obtain his qualifications. Two other relevant events at this time are that the claimant was invited to a work Zoom meeting on 26 September 2023 and from which we conclude the respondent had access to remote video conference facilities, and the claimant was unable to attend work on 15 October 2023 because York Marathon meant he was unable to leave his home by car and travel to Leeds because the roads were closed. This absence was notified to and apparently accepted by the respondent and the claimant’s classes were covered by another remember of staff.[15]By 20 October 2023 the claimant had decided that he no longer wanted to work for the respondent. He understood that he was in a probationary period and he was therefore only obliged to give a shorter notice period than the three months set out in his contract. He contacted the respondent to clarify his notice period on 20 October 2023 and he also made complaints about the work that he was given in that email.[16]The respondent replied on 21 October 20203 and said that they had decided not to give the claimant a probationary period after all. They had not previously told the claimant that. The claimant then gave notice to end his employment and requested on 21 October a shortened notice period. The claimant gave notice to end his employment and the respondent replied on the 21 October in terms which we will not set out but which, in our view, were oppressive and unnecessary. It is also relevant to note that this email did not say who it was from and it originated from a generic respondent email address. The claimant found this response odd and upsetting and we are not surprised. The claimant said, and we accept, he was physically shaken by the tone of this email which is in our view bizarre and unnecessarily aggressive.[17]On 22 October 2023 the claimant offered to work one months’ notice and there was no reply to that.[18]The claimant says, and we accept, that this communication from the respondent had a significant impact on him because of his autism. The claimant described brain fog starting around this time. He started to need extra support from his parents in terms of them checking in with him and making sure he was okay and staying on top of things.[19]On 30 October the claimant made a holiday request for 19 November and arranged cover for that shift and the respondent did not respond to that request. The claimant assumed that his leave request was acceptable.[20]By 1 November the claimant was becoming very stressed by the respondent’s approach to the end of his employment and telephoned to say that he was too unwell to attend work the next day, having spoken to his GP.[21]That same evening at 16.56 the claimant received a Facebook message from someone at the respondent asking him to cover an extra shift that evening. The Case Number: 6000187/2024 4 claimant replied to say he had already phoned in sick for the next day and was too unwell to work that day. The cause of his ill health absence was stress related to the respondent’s conduct in dealing with his attempt to give notice.[22]Fifteen minutes later at 17.11 the claimant was told, and again it does not say in the email by whom, that he had hit the trigger point for absences and needed to attend an occupational health appointment by 8 November 2023. The claimant had not been given a copy of the sickness absence policy. We assume it was included in the staff handbook which he had not received despite repeatedly requesting an electronic copy, so the claimant was unaware of the respondent’s sickness process or procedure. The email from the respondent refers to a number of matters including using the Bradford Factor to assess the claimant’s place on the sickness absence process. Given that the claimant had not even been off sick for one day yet, in our view the tone of this email was wholly unreasonable and oppressive.[23]On 2 November 2023 the claimant was invited to an occupational health appointment by Facebook Messenger and the claimant replied disputing the need for an occupational health appointment after just one day’s sickness.[24]The next day the respondent emailed the claimant and said that he’d failed to follow the sickness procedure and we find that the claimant had never had the sickness policy so was not aware of the procedure, but in any event the claimant clearly had notified the respondent twice that he was not going to be able to come into work because of his health. This email purported to be from someone called Joshua who the claimant had never met.[25]On 4 November the claimant sent an email with a fit note saying he was still waiting for the employee handbook, and someone from the respondent replied 25 minutes later alleging that they had heard from another employee that the claimant had gone off sick to avoid the notice period and consequently he was invited to a fact finding meeting on 7 November 2023 at the gym in Leeds.[26]The respondent explicitly stated in this communication that the claimant was not allowed to bring a representative. They say “it is important to inform you that during this meeting you will not have the right for representation”[27]We find that this communication was aggressive and threatening. We also find that the respondent’s statement about what they say another person had told them was untrue. The evidence of the claimant’s communication with the employee alleged to have told the respondent the claimant had gone off sick to avoid the notice period, which is consistent with the evidence the claimant gave to us, shows that the respondent was not told by another employee that the claimant had gone off sick to avoid the notice provisions.[28]The claimant said in evidence, and we accept, that he was working at another place, that the respondent knew about that work, that it was on a day he was not contracted to work for the respondent, and that the claimant’s sickness was wholly related to the conduct of the respondent’s managers not his ability to coach trampolining. The claimant said in his communication of 4 November 2023 that he was waiting for a GP appointment, and that the respondent’s Case Number: 6000187/2024 5 approach to refer to occupational health within hours of the claimant phoning in sick for the first time was oppressive.[29]On 7 November the claimant replied to say that he could not attend a meeting at that time. It was not on his working day and he had other commitments. He also said that the statement about him trying to avoid the notice period was false. The respondent then replied by email to say that the meeting had moved to 12 November at 12.45, but as the claimant’s shift then ended at 12.55 the meeting could be no longer than 10 minutes.
Findings
[30]It was in this email that the respondent referred to it coming to their attention that the claimant was in fact also working in another job, although we find that the respondent was already aware of that and had been since the outset of the claimant’s employment with them. The claimant replied requesting a virtual meeting and saying that he had not been given any terms of reference for the meeting. He wanted the names of the attendees and asked that it be recorded and he said, quite reasonably in our view, that his other commitments were of no concern to the respondent.[31]On 10 November the respondent said the meeting could be at a mutual venue at a Premier Inn in Leeds or at the claimant’s home. They said that the claimant could not have any documents in advance but that occupational health would be at the meeting. The claimant formed the view that the Premier Inn had no private meeting spaces so that a meeting there would be in public. He was not prepared to have the meeting in his home. The claimant proposed a neutral venue in York where he lives, so that the respondent would be travelling to a place they were prepared to travel to anyway (namely, York), and that the meeting be brought forward by 15 minutes to allow 25 minutes for the meeting. The claimant queried if occupational health would be there and again that he did not understand why the meeting could not be done remotely.[32]On 11 November 2023 the claimant sent the respondent details of the meeting venue and on 12 November 2023 the claimant attended the meeting by himself and the respondent did not attend. The claimant made notes of what he would have said at the meeting and sent them to the respondent.[33]On 19 November 2023 the claimant took the leave that he had pre-arranged and on 21 November the respondent told the claimant about an occupational health appointment the next day on 22 November which the claimant attended by telephone.[34]The occupational health report makes some relevant findings. Those are that the claimant’s stress concerns at work are related to workplace issues, the management and the issues with the employment contract relating to his notice that we have already described.[35]It is clear that the claimant is at that time able to continue in secondary employment as a trampoline instructor in York because the issues that are making it difficult for him to go to work with the respondent are related solely to management to the respondent and it says specifically “the stress condition has not lasted longer than 12 months. The impairment has not had a substantial or adverse impact on the ability to perform daily activities. In my opinion this stress condition[which was what the claimant was Case Number: 6000187/2024 6 off with] is unlikely to be considered as a disability under the provisions of the Equality Act”.[36]It then goes on to say, “please note that the client has a condition which is likely to be protected by the Equality Act 2010 as I do not have consent to share the details of this with management at the time.”[37]The claimant had declined to allow the respondent to know about his autism because he was suspicious about their treatment of him and particularly with regard to comments that he had heard people say about children who attended the classes who the respondent described as autistic.[38]On 22 November 2023 the claimant was due to be paid for the October work a sum of £684 and he was not paid. He wrote to the respondent to query this.[39]The respondent replied on 22 November with a lengthy email setting out 16 points. In this email, the respondent accuses the claimant of various misconduct and, importantly, threatens the claimant. It says “in accordance with Clause 9.2 we have enacted our contractual entitlement to take a deduction from your salary. This action has been taken to mitigate the loss and damage incurred by the company due to a breach of contractual clause at 7.5.1 and 9.1”.[40]We find as a fact that the respondent had, and could have had, no evidence whatsoever to suggest that the claimant had breached either of those clauses. He had applied for leave in accordance with the terms as he understood them. He had arranged cover for his day off and the claimant was at this point continuing to be employed throughout the three months’ notice period.[41]In response to this the claimant submitted a grievance on 2 December 2023 rebutting each of the points in the letter of 22 November and making further specific complaints about the notice period, withholding his salary and the threats to pursue the claimant through the courts.[42]There was some correspondence about the claimant's grievance document, but the respondent did not explicitly acknowledge the grievance and has never dealt with it. The respondent’s response on 2 December simply said, “we note the following paragraph ‘my sickness is due to work related stress and anxiety brought on by the actions and assertions from the LGA’. Please outline with evidence the actions and assertions from LGA that caused stress and anxiety prior to 1 November 2023”.[43]The claimant replied to say he suggested they read his grievance letter which sets out in detail his concerns and the respondent replied again on 3 December in a defensive and unhelpful way saying “none of the points in the attached document explicitly state alleged actions undertaken by the business prior to 1 November. Please particularise your points properly including dates. With regard to pay I suggest you read our email to you dated 22 November. With regard to pay slips Sandra has previously sent these to the email address received on the pay roll form which you completed during your induction”. Case Number: 6000187/2024 7[44]Having read the claimant’s lengthy and detailed grievance letter, it is not right to say that the claimant did not express in very clear terms what the basis of his grievance was. Nonetheless, the respondent wholly failed to respond appropriately to it.[45]On 3 December the claimant wrote again to the respondent, starting the email “Dear unnamed LGA staff member” expressing his frustration that throughout his correspondence with the respondent in which he was detailing complex private matters he had no idea with whom he was communicating.[46]On 22 December the respondent saw the occupational health report which made specific recommendations that the claimant be allowed to attend meetings virtually and that the issues the claimant had were with the management style of the respondent and work related stress, and not with his ability to undertake his job as a trampoline coach.[47]We note that around this time the claimant made a subject access request. The respondent dealt with this in a similar way by making excuses for not dealing with it and ultimately ignoring it as far as we are aware.[48]On 29 December the respondent invited the claimant to a meeting on 1 January at 10am to discuss adjustments and a return to work date. This was not during the claimant’s contracted working hours and the claimant said he would not attend.[49]At 10.01 on 1 January 2024, one minute after the meeting had been due to start, the respondent emailed the claimant and said he had failed to attend the meeting and it would be re-arranged at the Premier Inn (where the claimant believed were no private rooms) on 4 January. There was still no named correspondents at this point – the claimant did not know with whom he was communicating.[50]On 2 January the claimant asked for some adjustments for the meeting, that it would be virtual and it would need to finish on time as he had an interview for a new job. The respondent’s reply was simply to ask for the time and location of the job interview without any explanation. The claimant replied to ask if they were ignoring his requests for reasonable adjustments and the respondent’s reply included a wilful mis-reading of the occupational health report which referred to the need to resolve workplace stress before the claimant was ready to return to work. It explicitly did not say, despite the respondent’s assertions, that the claimant was fit to return to work.[51]On 3 January 2024 the respondent again told the claimant they had booked a venue at the Premier Inn, that stress was not a disability and they imposed a 15 minute time limit on meetings in accordance with the stress risk assessment they had done.[52]The respondent had undertaken a stress risk assessment without the claimant’s input.[53]The following day on 4 January the claimant emailed the respondent to say he did not want to disclose the nature of his disability, explaining the need for remote meetings and said that the respondent’s actions were exacerbating his stress. Case Number: 6000187/2024 8[54]On 5 January 2024, the respondent replied with a somewhat lengthy and argumentative email, but they did agree to a telephone meeting on 7 January. On 6 January 2024 there is an exchange of emails about the content of the meeting on the 7 January. This was the first time that the respondent was prepared to identify who the claimant was corresponding with, and the claimant set out his concerns and the issues again in detail to Natasha Chadwick.[55]The claimant did not disclose the nature of his disability at this time and Ms Chadwick responded the same day confirming that the meeting would finally be by telephone, and she would be the claimant’s point of contact from then on. She confirmed the purpose of the meeting was to focus on stress triggers, finalise the stress risk assessment, discuss the occupational health report and address concerns that had previously been identified in her terms of reference.[56]The meeting went ahead by phone on 7 January. The meeting lasted about 10 minutes and Ms Chadwick refused to discuss who the claimant had been corresponding with previously, or the accusations and demands levelled at the claimant. Eventually Ms Chadwick confirmed that it was she who had been dealing with the grievance and disciplinary. The claimant asked for the next meeting to be the following Sunday when his father would be able to support him. There was then an email after the meeting on the same day.[57]The next meeting was actually arranged for the following day despite the claimant’s request for it to be the next week and it was not entirely clear what that meeting was to be about. It appears that there was in fact no further meeting.[58]The claimant replied on 7 January challenging Ms Chadwick’s email and specifically explaining the stress that the respondent’s conduct was causing him. There was another email from Ms Chadwick on 8 January bizarrely requesting the name of the claimant’s solicitor and indicating that there would be a return to work on 11 January 2024.[59]The claimant brought his Employment Tribunal claim on 19 January 2024 having completed early conciliation from 23 December to 27 December 2023.[60]He said the harassment from the respondent continued and increased from then and included the respondent bringing further proceedings for breach of contract in the County Court. We make no findings about that because that happened after the issue of these proceedings and do not form part of the claimant's claim. Additional findings of fact[61]We make the following additional relevant findings of fact.[62]In our view, having seen the way the people at the respondent’s business conduct themselves in all communications with the claimant and, in fact, regardless of who at the respondent’s business was corresponding with the claimant and having regard to how the Employment Tribunal proceedings had been conducted, we find on the balance of probabilities that the style of communication set out in these findings are a feature of the respondent’s conduct and communication style. Case Number: 6000187/2024 9[63]That is to say this communication style is not particular to the respondent’s communications with the claimant but how the respondent, Ms Chadwick and potentially other employees who have written the communications, conduct themselves generally. To be clear they do so in an aggressive and overly assertive, threatening manner. Findings of fact related to disability[64]In terms of the claimant’s asserted disability, the claimant relies on the disability of Autism Spectrum Disorder and he has a diagnosis of autism made on 19 October 2021.[65]The letter from Jane Higgins, a clinical psychologist, identifies two broad areas of difficulty that the claimant has: persistent difficulties in social communication and social interaction across contexts, which is manifested by a number of factors; and restricted repetitive patterns of behaviour, interest or activities.[66]We accept the claimant’s evidence and the claimant’s mother’s evidence, that these manifest themselves on a day to day basis as a difficulty of making friends and socialising generally; difficulty in dealing with everyday situations including conflicts that arise in house sharing; being easily distracted by, for example, small noises; and difficulties keeping on top of his self-care in terms of maintaining appropriate standards of tidiness and cleanliness in his house. The claimant experiences a greater reaction to stress than neurotypical people and this causes further difficulties with day to day functioning. Law and conclusions[67]In respect of disability, Section 6 of the Equality Act 2010 says (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[68]The claimant relies on the impairment of autism and it is clear from the letter of Jane Higgins that the claimant does have that impairment.[69]We have set out our findings about the impact on the claimant’s day to day activities and we find that that does meet the second part of the test. The impact is substantial, it is more than minor or trivial and it is long term. It is a lifetime condition and we do not need to say anything more about that.[70]We find that at the relevant time the claimant was disabled by reason of Autism Spectrum Disorder.[71]Turning to the disability discrimination claims, claim for indirect discrimination is covered by Section 19 of the Equality Act 2010.[72]This says that(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. Case Number: 6000187/2024 10(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.(3) The relevant protected characteristics are— … disability;[73]The first question relates to the provision, criterion or practice (PCP). The PCP is described in the case management order as the application of a practice of threatening and aggressive communications and excessive demands which put the claimant at a disadvantage in comparison with colleagues without autism and that he was less able to cope and suffer with work related stress as a result.[74]We found that it was the respondent’s practice generally to conduct itself in the very aggressive, assertive and threatening manner as been evidenced by the correspondence throughout this hearing, and the correspondence with the Tribunal. Although we have not heard or seen no communications directly from Mr May, the claimant says that perhaps Joshua was pseudonym for Mr May, it is undoubtedly the respondent’s practice as an employer.[75]In our view the respondent is likely to apply this style of communication to all his employees. It is not something that is particular to the claimant and in our judgment it is a practice of the respondent. It is applied to people who have autism spectrum disorder and those who do not. That is further indicated by the fact that the respondent did not know that the claimant had autism spectrum disorder which we will come on to.[76]It puts or would put persons with whom the claimant shares the characteristic of having autism spectrum disorder at a particular disadvantage, and we have heard the claimant’s evidence about the impact of the respondent’s practices on him. It substantially exacerbated his stress and it further adversely impacted his ability to function on a day to day basis. It affected him to such an extent that it necessitated additional support from his parents and made the claimant become extremely stressed, lose trust and in fact had an impact on his ability to obtain further employment.[77]In our judgment, taking judicial notice of the fact that autism is a relatively well understood condition these days, albeit that everybody with autism experiences it in a different way, we think that it is an impact that is likely to happen to one degree or another to a significant proportion of people with autism compared to those without. For that reason the PCP does put people with whom the Case Number: 6000187/2024 11 claimant shares a protected characteristic, namely autism spectrum disorder, at a particular disadvantage, and for the same reasons it has done so for the claimant.[78]Finally, has the respondent shown the PCP to be a proportionate means of achieving a legitimate aim?[79]Firstly, the respondent has not said what legitimate aim they say they are trying to meet in adopting the aggressive communication style, but in any event, adopting an unreasonably, aggressive and threatening tone in all communications is extraordinarily unlikely to be a proportionate means of achieving any legitimate aim and we certainly cannot see that it is proportionate in these circumstances. So for those reasons the claimant’s claim of indirect discrimination is successful.[80]In respect of harassment, this is covered by Section 26 of the Equality Act 2010 which says (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— … disability;[81]Broadly speaking, we have found that the conduct relied on as harassment did happen and we have set out what we think about the letters and the emails. They key issue in this case is whether it was related to the claimant’s disability and we have heard no evidence that it was. We are not saying that the conduct did not violate the claimant's dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. It is likely that it did.[82]However, in our judgment the respondent’s conduct was in no way connected with disability. As far as we can see it is just the way that the respondent conducted themselves. For those reasons the harassment claim is unsuccessful. Case Number: 6000187/2024 12[83]In respect of the claim of a failure to make reasonable adjustments, section 20 Equality 2010 says, as far as is relevant(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[84]Section 21 says(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[85]Paragraph 20 of schedule 8 to the Equality Act 2010 says (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (b) …that [an employee of A’s] disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[86]The same PCP is relied on as for indirect discrimination and we have made our findings about that above – there was a PCP, it was applied to the claimant and it subjected him to a disadvantage.[87]However a claim for failure to make reasonable adjustments cannot succeed unless the respondent knows or ought reasonably to know both that the claimant is disabled by the particular disability and what the impacts of that disability that are in relation to the PCP.[88]The claimant has been very honest in his evidence in our view, and said he did not tell the respondent about his disability. The respondent did make efforts to find out about the claimant's disability, albeit in a somewhat callous and uncaring way. The respondent cannot be expected to know that the claimant is disabled by reason of autism spectrum disorder in those circumstances. For these reason, the complaint of a failure to make reasonable adjustments is not well founded and is dismissed.[89]Turning to the claim for unauthorised deductions from wages.[90]Section 13 of the Employment Rights Act 1996 says(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or Case Number: 6000187/2024 13 (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section 'relevant provision', in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.[91]In deciding what is properly payable in section 13(3) the tribunal has the power to interpret any contractual terms.[92]The respondent appears to have deducted wages from the claimant’s November pay for work done in October on the basis that the claimant was in breach of Clauses 9.1 and 7.5.1 of the contract of employment.[93]As a matter of fact, the claimant was not in breach of either of those terms. In respect of 7.5.1, the claimant had sought approval for his one day of holiday and ensured that the class was covered. He had complied with the terms of his contract.[94]In respect of 9.1, the claimant gave notice and remained employed for 3 months. The respondent’s suggestion that the claimant was faking his sickness absence to avoid the notice provisions was(a) wholly unfounded and(b) a tacit recognition, in our view of the inherent unreasonableness of the notice provisions. In any event, there was nothing in the contract about different rules applying if an employee was sick during the notice period.[95]The claimant was, as a matter of fact, not in breach of clause 9.1.[96]There was, therefore, no basis at all for the respondent to seek any recovery of money from the claimant under these provisions, whether by deduction form the claimant's wages or otherwise.[97]In any event, in our judgment, the term of the contract on which they seek to rely in Clause 9.2 is an unlawful penalty clause.[98]The law is summarised in Harvey on Employment Law at 537.04 as follows “(1) The advantaged party (here, the employer) must be able to show that there was commercial justification for the inclusion of the clause; this is not necessarily negated by the fact that the clause has (and indeed is intended to have) a deterrent effect on that employee, if that can be justified in the circumstances but on the other hand the employer does not have a valid interest in merely punishing the employee. Case Number: 6000187/2024 14 (2) If there is such a commercial justification for including a clause, the question becomes whether this clause was in all the circumstances extravagant, exorbitant or unconscionable; to put it another way (in a manner readily recognisable from EU law and discrimination law in particular), was the clause used out of all proportion to the legitimate interest concerned? In relation to this crucial question, the issue of whether the clause contained a genuine pre-estimate of potential loss, while no longer determinative, may be evidence. (3) A court or tribunal may be more willing to uphold the clause if it was subject to arm's length negotiation between parties of equal bargaining power and/or with legal advice. That may be the case in some high-worth employment cases, but in more typical employment cases (involving the use of standard contracts on a take-it-or-leave-it basis) it will be the opposite principle that will apply, namely that here a court or tribunal may need more convincing that it was not an unenforceable penalty”.[99]Clause 9.2 is wholly disproportionate in that it does not in any way at all reflect the genuine losses that the respondent suffered or was likely to suffer in any of the circumstances to which it applied and the respondent has not provided any evidence at all to the tribunal to suggest otherwise. Further, the respondent did not provide any evidence or explanation in their communications with the claimant, or at any other point, about any losses they have incurred.[100]The respondent has shown no commercial justification for the clause[101]In any event, the clause is unconscionable and disproportionate. Firstly, it is wholly unreasonable to impose a 3 month notice clause for a part time job paying barely above minimum wage. The respondent has produced no evidence that payment of 3 months gross wages for failure to give that notice is commercially justifiable and very compelling evidence would be needed to demonstrate that it was. Finally, to state that the unpaid three months’ notice would be withheld from wages turns an already unreasonable clause into an even more oppressive and unconscionable provisions.[102]Finally, the claimant was given a short period in which to sign the contract under an implied threat that the offer would be withdrawn after that period. This does not amount to an arm’s length negotiation between parties with equal bargaining power.[103]There was no basis then for the respondent to lawfully deduct the money from the claimant’s wages.[104]The claimant, in his grievance, brought a complaint about the failure to pay wages. We have found that that grievance was not dealt with at all so we therefore award a 25% uplift under Section 207A of the Trade Union and Labour Relations Consolidation Act 1992 for a wholesale failure by the respondent to apply the ACAS Code of Practice on disciplinary and grievance procedures.[105]That claim is successful and we award the claimant the gross sum for wages of £684 and an £55.20 ACAS uplift. Case Number: 6000187/2024 15[106]In respect of holiday entitlement, under regulation 14 of the Working Time Regulations 1998, an employee is entitled to be paid in lieu of any accrued but untaken holiday on termination of their employment.[107]The claimant was entitled to 67.2 hours holiday per year. He took three hours in 2023 on 19 November. The respondent’s leave year is a calendar year from December to January. The claimant worked for part year from 24 September to 31 December in the holiday year 2023. This is 98 days which represents 27% of the year, so that the claimant had accrued 18.1 hours holiday, taken three hours so that 15.1 hours were left in 2023.[108]In 2024 the claimant worked eight days in that holiday year which is 4.9% of the year so he had accrued 3.3 hours. As a matter of law untaken holiday does not usually automatically carry over from one holiday year to the next unless it is specifically agreed.[109]In these circumstances however the claimant was off work sick from 1 November 2023 so that he was unable to take his holiday. In those circumstances caselaw provides that the claimant is entitled to carry his holiday over into, at least, the following holiday year. This means that at the date of the end of his employment on 18 January 2024 a total of 18.4 hours holiday at £12 per hour were owed to claimant which comes to a total of £220.80[110]The remedy for discrimination claims is set out in Section 124 of the Equality Act 2010 which says that we may award compensation. That compensation is on the tortious basis and should be such as to put the claimant in the position he would have been in if he had not suffered the discrimination. We are entitled to make an award for injury to feelings.[111]Guidance on the amount of injury to feelings awards is set out in the case of Vento v The Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 and is uprated from year to year. At the time this claim was brought the three bands, the lower band, the middle band and the upper band reflected compensation levels of £1100 to £11200 for less serious cases, middle band of £11200 to £33700 and the upper band of £33700 to £56200 being the most serious cases.[112]We accept the claimant’s evidence that he sets out in his impact statement and gave to us today about the way in which the respondent’s conduct affected him. We accept the claimant has lost trust and has required more support from his parents. However the conduct extended over a relatively short period and happily the claimant is now working in a graduate job suggesting that he is hopefully starting to get over the way he was treated by the respondent. In our view injury to feelings is at the upper end of the lower Vento band which at the time was £1100 to £11200 so we make an injury to feelings award of £11000.[113]In respect of other losses, we heard evidence that the claimant was unable to obtain work after the end of his job. We accept that the job would have ended anyway because the claimant gave notice, but we prefer the claimant’s evidence that were it not for the stress caused to him by the conduct of the respondent he would possibly have converted his PhD studies to a Master’s degree and continued to be paid through that. Case Number: 6000187/2024 16[114]This did not happen and the claimant was supported by his parents in the sum of £1500 per month for around three months. We accept the claimant has an obligation to repay that support. However we also think there is a possibility that things might or might not have worked out with the Master’s degree regardless of the respondent’s conduct. In our view it is just and equitable to award a proportion of that loss at 50% on the chance the claimant might or might not have managed to convert to a Masters were it not for what had happened at the respondent’s employment. So therefore we award half of the three months remuneration at £1500 which comes to £2250.[115]We award a 25% ACAS uplift (as discussed briefly above) on both of those awards because they were matters that were complained about in the grievance. The respondent effectively just ignored the claimant’s grievance and complaints. That comes to an increase of £3750 on the injury to feelings award and £562.50 on the financial award.[116]We also award interest at 8% from the date of discrimination to the hearing today on the injury to feelings award which comes out at £1115.34 and interest on the pecuniary loss from the mid-point between the last date of discrimination and today which comes to £102.55. Employment Judge Miller Date: 17 January 2025 Appendix – List of issues The claims and grounds of resistance within the ET1/ET3 and attachments 9. The claims discernible in the claim form to be determined at the final hearing are:9.1 Unlawful deduction of wages concerning pay for October 2023/also breach of the National Minimum Wage Regulations;9.2 Regulation 14 holiday pay on termination of employment;9.3 Disability related harassment;9.4 Indirect discrimination (disability)9.5 Failures to make reasonable adjustment. Case Number: 6000187/2024 17 10. The particulars of these allegations are [or in square brackets appear to be]:10.1 On or around end October 2023 the respondent failed to pay the claimant’s October wages in the sum of £684;10.2 On or after 18 January 2024 the respondent failed to pay the claimant for untaken holiday in the sum of £258;10.3 The claimant asserts he is and was at the material times a disabled person by reason of autism;10.4 He alleges the course of conduct (said to be bullying and lying between 20 October 2023 and 8 January 2024) in his claim statement amounted to:10.4.1 Unwelcome conduct related to disability which contravened Section 26 of the Equality Act (with section 40);10.4.2 [The application to him of a practice of threatening and aggressive communications and excessive demands (the PCP) which put him at a disadvantage in comparison with colleagues without autism, in that he was less able to cope and suffered with work related stress as a result.]10.4.3 [He alleges that a reasonable adjustment would have been to cease the same;]10.4.4 [He alleges that the PCP was applied to other colleagues without his disability];10.4.5 [He alleges the PCP cannot be justified as a proportionate means of achieving a legitimate aim and as such constituted indirect disability discrimination.] 11. The defences to the allegations are:11.1 The respondent was entitled to deduct holiday pay and wages in reliance on clause 9.2 of the contract signed by the claimant at 5:16pm on 21 September 2023;11.2 The respondent did not have knowledge of the claimant’s disability or the specific disadvantages to him of any matters at the material times and accordingly neither harassed him nor failed to make reasonable adjustments nor engaged in any form of disability discrimination; 12. If any of the complaints succeed the claimant seeks an uplift for failure to comply Case Number: 6000187/2024 18 with ACAS code procedures. Case No: 6000187/2024 EMPLOYMENT TRIBUNALS Claimant: Mr J Harrison Respondent: Mr D May trading as Leeds Gymnastics Academy[1]The respondent applies for a reconsideration of the judgment dated 17 January 2025 on the following grounds:(a) The Respondent did not receive a correct notice of the proceedings(b) The decision was made in the absence of the Respondent; and/or(c) There is new evidence available and/or(d) It is otherwise in the interests of justice to review the decision as the decision was made in the party’s absence.[2]Under rule 68 of the Employment Tribunal Procedure Rules 2024, the tribunal may reconsider a decision where it is in the interests of justice to do so.[3]The application must be made within 14 days of the date the written reasons are sent to the parties and the application was made in time on 3 February 2025. The reasons were sent on 20 January 2025.[4]Rule 70 (formerly rule 72 of the 2013 procedure rules) says Case No: 6000187/2024(1) The Tribunal must consider any application made under rule 69 (application for reconsideration).(2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal.(3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application.(4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice.(5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.[5]I must therefore consider the respondent’s application and decide whether there is any prospect of the original decision being varied or revoked.[6]The grounds on which a decision may be reconsidered are where it is in the interests of justice to do so.[7]Previously, the Employment Tribunal Rules of Procedure 2004 provided that decisions may be reviewed on the following grounds onlya. the decision was wrongly made as a result of an administrative error;b. a party did not receive notice of the proceedings leading to the decision;c. the decision was made in the absence of a party;d. new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; ore. the interests of justice require such a review.[8]In the case of Outasight VB Limited v Brown UKEAT/0253/14/LA HHJ Eady KC held that the same principles apply under the 2013 version of the rules as applied under its predecessor 2004 version. In particular, she held that where the basis of the application is to admit evidence that was not before the previous tribunal, the principles set out in Ladd v Marshall [1954] 1 WLR 1489 CA continue to apply. In that case, Lord Denning said Case No: 6000187/2024 “In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”.[9]The wording under the 2024 rules is the same: a decision may be reconsidered where it is in the interests of justice to do so. The same principles will, therefore continue to apply[10]I address the respondent’s grounds: (a) The Respondent did not receive a correct notice of the proceedings[11]The Respondent was informed of the correct start time of 10am at the preliminary hearing on 25 July 2024 and in the case management orders sent to him on 2 August 2024. He was sent a notice of hearing dated 2 August 2024 which incorrectly said that the start time of the final hearing was 00.00. It appears that these documents were both sent to the respondent on 8 August 2024.[12]The respondent contacted the tribunal as follows:a. 8/8/24 – to request some variations to the case management ordersb. 6/9/24 - to provide amended grounds of resistancec. 18/9/24 – to request an extension of time to provide documents and requesting further and better particulars from the claimantd. 1/10/24 – requesting changes to deadlines in the case management orders and asking for a further preliminary hearinge. 21/10/24 – requesting reasonable adjustments form the tribunalf. 14/11/24 – reiterating his request for reasonable adjustments, particularly on the basis that instructions and direction are clearg. 11/12/24 – requesting a postponement.[13]The respondent did not in any of this correspondence, raise the inconsistency between the time of the hearing start date in the case management order and the notice of
hearing.
[14]The respondent said that, consequently and despite his ill health, he attended the tribunal building at midnight on 17 December 2024 but could not access the tribunal. He has provided images purporting to be screen shots from his phone on that day showing that he tried to call the employment tribunal at midnight as evidence of this.[15]Those screen shots are undated. Case No: 6000187/2024[16]The respondent has had at least 9 claims brought against him since 2022 and is capable of making complex legal arguments supported by case law. It is simply implausible in all the circumstances to suggest that the respondent attended the hearing at midnight on 17 December 2024 without making a single enquiry in any of the emails about the apparent conflict between the case management orders and the notice of hearing.[17]In my judgment, the respondent did have notice of the hearing.[18]There are no reasonable prospects of the judgment being varied or revoked on this ground (b) The decision was made in the absence of the Respondent; and/or[19]It was, because the respondent’s application to postpone was refused and I have decided not to vary that decision for reasons given separately. Although the decision was made in the absence of the respondent, this was because the respondent decided not to attend.[20]There are no reasonable prospects of the judgment being varied or revoked on this ground, (c) There is new evidence available and/or[21]The respondent refers to two witness statements dated 2 October 2024 and 20 November 2024, says that he was told to bring his documents to the tribunal if the bundle could not be agreed and refers to an occupational health report.[22]There is nothing on the Tribunal file that shows that the respondent was told to bring any documents to the final hearing if the bundle could not be agreed. There are orders for disclosure of documents and the preparation of a bundle.[23]Not only could the evidence have been obtained with reasonable diligence, all of this evidence was available and in the hands of the respondent before the hearing and, in fact the respondent had been ordered to disclose it to the claimant.[24]Even if he did not do that, there is no good reason why the respondent could not, as a last resort, have emailed the evidence to the tribunal. The respondent had, in any event, emailed the image of a chat that the respondent refers to as part of his amended response on 6 September 2024, demonstrating that it was within the respondent’s capabilities to do this. I note, however, that that chat does not demonstrate that the claimant was fabricating or exaggerating his sickness to avoid the notice period so was, of itself, not supportive of the respondent’s case.[25]There are no reasonable prospects of the judgment being varied or revoke don’t his ground (d) It is otherwise in the interests of justice to review the decision as the decision was made in the party’s absence. Case No: 6000187/2024[26]This ground as set out does not disclose any basis for a reconsideration except potentially that the judgment does not mention anything about a declaration or a recommendation.[27]A declaration was made: the judgment says “The complaint of indirect disability discrimination is well-founded and succeeds”. This is a declaration that the claimant was indirectly discriminated against by the respondent.[28]All other matters referred to in that section, including the assertion that the tribunal failed to consider recommendations, are effectively representations that the tribunal erred in law. That is properly a matter for an appeal, not a reconsideration.[29]There are no reasonable prospects of the judgment being varied or revoked on this ground. Employment Judge Miller Date 7 February 2025 Case number: 6000187/2024 1 EMPLOYMENT TRIBUNALS Claimant: Mr J Harrison Respondent: Mr D May t/a Leeds Gymnastics Academy Heard at: Leeds On: 24 October 2025 Before: Employment Judge Miller Ms P Pepper Mr Q Shah Representation Claimant: Mr I Harrison (claimant’s father) Respondent: In person[30]The respondent said that that was because everything that he had said in his submissions was scripted by chat GPT. Whether or not this is correct, Mr May was very obviously able to prepare for the hearing today. He was able to prepare those submissions and he was able to send in representations in advance. He is also submitted an appeal to the Employment Appeal Tribunal and instituted, we understand, proceedings in the County Court.[31]Beyond that, the judge at the preparation time order hearing had a detailed discussion with the Mr May at the conclusion of what he said were his preprepared submissions about the meaning of the case of Yerrakalva v Case number: 6000187/2024 8 Barnsley MBC [2011] EWCA Civ 1255 (03 November 2011) which were clearly not scripted. Mr May was able to reply quickly and coherently to the discussion. It is apparent that he was also able to undertake research on his computer or phone while we were in the course of the hearing and engaging discussion about that because Mr May referred to a website that he was looking at about that case.[32]All of these matters (set out in paragraphs 29 and 30) require a greater degree of executive functioning in a situation that is inevitably more stressful (namely in the course of a tribunal hearing) than would be the case during the 6 weeks from 19 September 0224 to 31 October 2024 that the respondent had to comply with the case management orders of EJ Wade.[33]We have not referred to all of the communication throughout the proceedings but having regard to how the respondent presented himself today and how the respondent has conducted this proceedings - namely by making a number of applications and interacting usefully and sensibly with the tribunal about those interactions – it is simply not plausible, and in fact bordering on disingenuous – to suggest that the respondent did not understand what was required of him in respect of the orders made by Employment Judge Wade.[34]Even if he was unclear about the precise scope of what documents were to be disclosed and what happened thereafter, it would have been perfectly reasonable for him to have a conversation with the claimant to discuss this document. Alleged attendance at the Tribunal at midnight[35]The final allegation of unreasonable conduct relied on by the claimant relates to the respondent’s assertion that he attended the tribunal at midnight.[36]In our view this as part of a wider allegation about the respondent that he has behaved in a disingenuous way throughout. He has sought to manipulate tribunal proceedings throughout to delay and disrupt the proceedings.[37]The background is that on 2 August 024 the tribunal sent a notice of hearing to the parties that said “There will be a Final Tribunal hearing at 2nd Floor, West Gate, 6 Grace Street, Leeds, LS1 2RP on 17 December 2024, 18 December 2024, 19 December 2024. The hearing will start at 00:00”.[38]This is in the context that there was a preliminary hearing on 25 July 2024 at which Mr May attended. The Case Management Orders produced from that hearing (which Mr May referred to as being unclear) said “The final hearing will take place in Leeds in person on 17 to 19 December 2024 to include remedy if required. The case will be heard by an Employment Judge and two non-legal members. The hearing will start at 10.00 am. You must arrive by 9.30 am. Sometimes hearings start Case number: 6000187/2024 9 late, are moved to a different address or are cancelled at short notice. You will be told if this happens”.[39]On 3 February 2025, the respondent’s solicitors requested a reconsideration of the final judgment. Amongst other things, they said: “We attach the Notice of the Final Tribunal Hearing which our client received dated 2 August 2024. This stated, somewhat misleadingly, that the hearing will start at 00:00. As mentioned previously, our client is autistic and he thought the hearing started at midnight on 17 December. He therefore attended the Tribunal hearing at this time on 17 December 2024 and found the Employment Tribunal closed. Our client tried to call the Employment Tribunal on 10 occasions but of course did not receive any response from the Tribunal. We attach our client’s phone records showing his attempts to telephone the Tribunal. We are instructed that attending the Tribunal to find the building closed and not getting an answer to the Respondent’s phone calls further added to his anxiety. Our client is not aware of any calls made from the Tribunal on 17 December asking him to attend the hearing”.[40]The attachment was indeed screen shots of a mobile phone showing attempts to call the Tribunal at midnight. The screen shots did not have any dates on them. They said the calls were made “today” or “yesterday”. We have no idea when the screen shots were taken and, given that Mr May did not assert to the Tribunal that he had attended the tribunal at midnight on 17 December 2024 until 3 February 2025, it is wholly possible that the calls were made on a date after 17 December 2024 to create the impression that he had phoned the tribunal at midnight on 17 December 2024.[41]In any event, even if he did call the tribunal at midnight on 17 December 2024, there is nothing to suggest that Mr May made those calls from outside the closed Tribunal building. We have no credible basis for concluding that Mr May did mistakenly attend the Tribunal at midnight on 17 December 2025.[42]Mr Harrison makes the further point that Mr May is inconsistent in his case by asserting both he was not well enough to attend the tribunal at 10am on 17 December 2024 but was well-enough to attend later the same day at midnight. Mr May says that he was stressed and deprived of sleep leading to his non-attendance, but that simply does not make sense. The respondent would not have been sleep deprived on the morning of 17 December 2024 by reason of staying up until midnight later the same day.[43]Finally, there is no record of the respondent seeking to contact the tribunal or the claimant to check the start time.[44]We think that the respondent was being dishonest in his assertion that he Case number: 6000187/2024 10 attended the tribunal at midnight. In our view it is apparent that the respondent had no intention of attending the final tribunal hearing on the basis of his postponement applications. Those may or may not have been legitimate or genuine, but they were dealt with at the time.[45]In our view the later assertion that he had in fact attended the tribunal at midnight and not the previous morning (or even the following morning although that is not what Mr May has alleged) is quite frankly ludicrous. The respondent said that he had had five claims brought against him previously albeit that he said he had been unable to attend those proceedings because of the tribunal’s persistent refusal (on his account) to make reasonable adjustments. He had, or at least had asserted that he had, instituted at least one set of County Court proceedings and been able to comply with the more complex procedural requirements there. The case management orders of EJ Wade clearly stated time at which the tribunal hearing would start.[46]In our judgement Mr May has sought at every available opportunity to use tribunal procedure to frustrate and delay any attempts by the claimant to progress his case. Other issues relating to conduct[47]We accommodated Mr May’s request to attend the hearing remotely as a reasonable adjustment. However, Mr Harrison made the valid point that the respondent while being allowed to attend remotely by telephone was able to review such documents and undertake such research as he wanted online as matters progressed. That opportunity was denied to Mr Harrison because he was in the Tribunal room. This is a regrettable consequence of hybrid hearings but point well made by Mr Harrison. It does, however, reinforce our conclusion that Mr May is perfectly capable of understanding the simple case management orders made by EJ Wade.[48]Our conclusions about the reasonableness of Mr May’s conduct were reinforced by matters that came up in the course of these proceedings. This includes our findings about Mr May’s assertions relating to the veracity of the ACAS communications (above) but also relates to written representations made by Mr May.[49]Those written representations from Mr May contained numerous case law references. At least half of those references were non-existent and Mr May admitted that he had just used Chat GPT to produce his representations without checking any of the results. He said he was reasonably entitled to conclude that everything that Chat GPT said was reliable, and in fact, he said there was no reason to fact check the internet at all.[50]Mr May runs, or has run, a business. It states in the medical records that Mr May relied on that he has a degree in economics and a postgraduate diploma in transport economics. We take judicial notice of the fact that in order to obtain a degree a student must undertake research and cite credible resources. In all these circumstances, it is, again, disingenuous for Mr May to assert that he reasonably believed that everything Chat GPT Case number: 6000187/2024 11 says is reliable and that the internet does not require “fact checking”.[51]Not only is this an unreasonable view, we simply do not believe that Mr May had this view. The respondent’s means[52]Mr May said that he was no longer running his business and effectively had no income other than benefits and no assets. His house and all other assets are in the name of his partner. He provided no documentary evidence about his means. Time spent[53]The time the claimant said he spent on preparing is detailed in the annex to this judgment. Mr May made representations about the appropriateness of various aspects of that time and the absence of supporting evidence. We set out our view about that in our conclusions below. Law and conclusions[54]The provisions for a preparation time order are set out in the Employment Tribunal Procedure Rules 2024. They say, as far as is relevant: 72 Definitions “preparation time” means time spent by the receiving party including any of the receiving party’s employees or advisers) in working on the case, except for time spent at the final hearing 73 (2) A preparation time order is an order that the paying party make a payment to the receiving party in respect of the receiving party's preparation time while not represented by a legal representative. 74 (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, 77 The amount of a preparation time order (1) The Tribunal must decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on the preparation time spent, and(b) the Tribunal's own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with Case number: 6000187/2024 12 reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £44 and increases on 6 April each year by £1. (3) The amount of a preparation time order must be calculated by multiplying the number of hours assessed under paragraph (1) by the rate under paragraph (2) which is applicable to the year beginning 6 April in which the preparation time was spent. 82 Ability to pay In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.[55]Although these rules came into effect on 6 January 2025, the previous rules were in identical terms. The relevant hourly rates for a preparation time order are:a. From April 2023 - £43 per hourb. From April 2024 - £44 per hourc. From April 2025 - £45 per hour[56]There are three broad questions for us to consider:a. whether the threshold is met so that a preparation time order can be made, as set out in rule 74 (2);b. if so, whether we should exercise our discretion to make that order; andc. if so how much to award.[57]Relevant principles are:a. Costs are the exception rather than the ruleb. Costs are compensatory, not punitive.c. It is also not necessary for there to be a direct causal link between the conduct alleged and the costs incurred. However, in McPherson v BNP Paribas (London Branch) [2004] ICR 1398, (cited in Yerrakalva, below) Mummery LJ said “40. In my judgment, rule 14(1) does not impose any such causal requirement in the exercise of the discretion. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as Case number: 6000187/2024 13 requiring [the respondents] to prove that specific unreasonable conduct by Mr McPherson caused particular costs to be incurred”. He later clarified that passage in Barnsley v Yerrakalva [2012] IRLR 78 CA: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had”. Barnsley v Yerrakalva [2012] IRLR 78 CA.d. The amount of costs should be limited to those costs that were reasonably and necessarily incurred.[58]The question of whether the respondent has acted vexatiously, abusively, disruptively or otherwise unreasonably in conducting his case is a question of fact for us.[59]In our judgment, the respondent has acted disruptively and unreasonably in the way he has conducted the proceedings. By refusing to engage with the case management orders, the respondent has unreasonably failed to properly conduct the proceedings. If it were not clear from our findings above, we make it explicit that the respondent did NOT require further clarification of the case management orders. He simply refused to comply with them. Taken together with the respondent’s postponement applications and failure to attend the final hearing, we conclude that this is because he was trying to disrupt the proceedings. In simple terms he was trying to make it difficult for the claimant to pursue his claims.[60]The respondent’s failure to attend that hearing and then disingenuously claim that he had attended at midnight was a further attempt to disrupt proceedings, It was an attempt to overturn the tribunal decision using a fortuitous (from Mr May’s perspective) mistake by the Tribunal in the notice of hearing.[61]In our judgement, the entirety of the respondent’s conduct as set out above in failing to comply with case management orders and then disingenuously asserting that he had attended the Tribunal at midnight amounts to both unreasonable and disruptive conduct of the proceedings by him.[62]Having decided that the threshold in rule 74 (2) is crossed we must decide whether to exercise out discretion to make a preparation time order.[63]We are required to consider whether it is just to make an order and we may, but do not have to, take into account the respondent’s ability to pay.[64]It is relevant in our view, to the exercise of our discretion, that the respondent has a live appeal before the Employment Appeal Tribunal. That appeal has been allowed to progress to a final hearing in respect, only, of whether the Tribunal erred in respect of the amount of compensation we awarded. That question is wholly unrelated to the conduct of the respondent Case number: 6000187/2024 14 in the way he conducted the proceedings.[65]However, there are a number of other grounds of appeal that are to be considered by the EAT at a rule 3(10) hearing. They are, in summary:a. Alleged failure by the tribunal to make reasonable adjustments – this relates to refusal to postpone the hearing and not giving more guidance on the case management orders; andb. That the incorrect notice of hearing identifying the start time of the final hearing as being midnight on 17 December 2024 amounted to an error of law[66]These issues are clearly relevant to the conduct of Mr May that we have concluded was unreasonable and disruptive and, if the EAT allows an appeal on those bases that is likely to impact on this decision.[67]However, in our view, the conduct of Mr May was manifestly unreasonable and disruptive and, more relevantly, deliberate to frustrate the claimant’s attempts to pursue his claim. Aside from the potential appeal to the EAT, it is in our view just to make a preparation time order.[68]In respect of Mr May’s means, we decline to take that into account in deciding to make an order. Mr May has arranged his financial circumstances so that he currently does not have any visible assets or substantial income. However, until recently he ran a business and we have heard nothing to suggest that his circumstances will not improve in the future.[69]For reasons relating to the appeal, we have ordered that the obligation to pay the amounts specified in this order is delayed. It is entirely possible that Mr May’s financial circumstances will change in the next year. In those circumstances it is not appropriate to take into account Mr May’s current financial circumstances,[70]We cannot, however, ignore the fact that the respondent’s appeal on the remaining grounds might be successful and that would have an impact on our decision. We therefore make an order in the terms above to account for this possibility.[71]The respondent had made an application to stay this application pending the outcome of the appeal. In our view, that is not proportionate, but any injustice to the respondent in the event that his appeal on the remaining grounds is successful is address by the order delaying the requirement for payment.[72]Finally, then, we consider how much the preparation time order should be. Rule 77 (1) sets out the matters that we can take into account. In accordance with rule 72, we can only take into account time spent by the claimant, not his family, on preparing the case. In any event, even if we are wrong about that and his family could be his advisers, we consider that it is just to limit the time spent only to that spent by the claimant. To do otherwise would be mean that the claimant was recovering multiple times Case number: 6000187/2024 15 for the same time.[73]This reduces the time toa. Prehearing: 23 hours and 36 minutesb. Hearing preparation: 56 hoursc. Post hearing: 16 hours[74]We allow time for the matters described as face-to-face meetings. We have only allowed the claimant’s time for this, but this is effectively the claimant thinking about and considering case strategy and this is a reasonable cost.[75]We do not allow anything for post hearing time except an amount for preparing for the preparation time order. Any time spent dealing with the appeal is a matter for the EAT to consider. The time for preparing for the preparation time order is not specified but we consider that 4 hours, represented by the preparation of documents, seems appropriate.[76]This comes to a total of 99 hours. Taking a proportionate approach, the claimant has split this as being 14% in 2023/2024 and 86 % in 2024/2025. This seems reasonable, in our view, as the orders were required to be complied with from 8 August 2024 (so in the years 2024/2025) and the majority of preparation would need to be done in the run up to the final hearing.[77]In our view, 99 hours is not a manifestly excessive amount of time to spend preparing for a three-day final hearing for a person representing themselves.[78]This would mean 13.86 hours at £43 per hour and 85.14 hours at £44 per hour.[79]However, in our view it is not proportionate to make a preparation time order for the entire period. Bearing in mind that we must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, in our view the respondent’s unreasonable conduct had little to no impact on the claimant’s preparation for the case before Mr May started failing to comply with the case management orders. Although this represented the majority of the work the claimant needed to do, he would still have needed to have prepared for the trial.[80]Taking all these factors into account, it is proportionate in our view to make a preparation time order for half the time, but at the 2024/2025 rate (when the respondent’s conduct is likely to have had the biggest impact on the claimant).[81]We therefore make a preparation time order for 49 hours and 30 minutes at £44 per hour which comes to a total of £2,178.[82]We make the order in the terms set out above in the judgment section to account for the appeal pending before the EAT. Case number: 6000187/2024 16 Addendum[83]After the first draft of this decision was prepared but before it was promulgated, Mr May sent an email to the tribunal objecting to the admission of the ACAS letter referred to above. In summary, Mr May says he was ambushed by the late production of this letter and was denied the opportunity to consider it and take advice. He says there was no explanation why the letter had not been produced previously and that the tribunal should have refused to admit the document. Particularly, he said, “this prejudice was particularly acute given the Respondent’s disabilities, which affect information processing, communication, and the ability to respond swiftly under time pressure. The disadvantage caused by the late disclosure was therefore substantially greater than that which would have been experienced by a non-disabled comparator in equivalent circumstances”.[84]Mr May said that there was inconsistency in the treatment between the parties in that the tribunal, initially at least, refused to allow Mr May to reply on medical evidence that had not been disclosed to the claimant on that basis whereas the claimant was allowed to rely on a document the respondent was not warned about in advance.[85]The claimant was given an opportunity to reply. He said that the tribunal had requested a copy of the latter so that the Tribunal must have considered that it was fair and reasonable to do so and that Mr May did not object to the production f the letter at the time. The reference, he says, to the refusal to admit Mr May’s medical evidence is irrelevant as that evidence was admitted. He says Mr May had access to the basis of the claimant’s application and was not prejudiced.[86]In respect of the allegation that Mr May was subject to more prejudice because of the impact of his disability, the claimant said “I find this unfair, the hearing was about the costs that I submitted, and Mr May had access to my statement that I submitted. At no point between me sending the statement and the hearing did Mr May state that there was no evidence for my statement, nor did he provide any evidence to the hearing that my statement was incorrect. I believe that as Mr May is representing the company he set up, if Mr May, as the representative, needs adjustments, then he needs to also look into other ways in which his company can help him - he too could have asked for a representative to be present with him”.[87]He concludes that “I feel Mr May is trying any and all ways to make this case last as long as possible”.[88]The respondent’s application to exclude the ACAS letter is refused. The letter was quoted in the claimant’s application. At no point did Mr May dispute its legitimacy prior to the hearing and nor did he request a copy before the hearing. We have made our findings about the veracity of the letter predicted by the claimant.[89]It is right that the tribunal asked for a copy of the letter, and we have no Case number: 6000187/2024 17 recollection of Mr May objecting to its production. We ensured that he had time to consider it before being asked questions. It is a short letter which Mr May was either a party to or which, as turned out to be the case, he disputed the validity of. These matters were in Mr May’s knowledge and it is not clear what difference taking advice would make to the factual issue in dispute.[90]Unlike the medical records, this was a short letter that could be, and was, dealt with quickly. In any event, however, when it transpired that the respondent’s medical records had been provided to the claimant (albeit that the claimant’s representatives may not actually have seen them) Mr May was permitted to rely on them.[91]We have set out our findings above about the letter. In our judgment, Mr May was not prejudiced by the late production of the letter, and his application is therefore refused. Approved by: