Lorna AllenClaimantAbele Care Ltd RECONSIDERATION JUDGMENT The Respondent’s application to reconsider the decision to reject the response is refused.Respondent
Before
Employment Judge PerryDate 5 February 2026
JUDGMENT
The Respondent’s application to reconsider the decision to reject the response is refused.
REASONS
[1]This is a Reconsideration decision following the Reconsideration request sent by the Respondent’s legal advisers to the Tribunal on 29 August 2025 and sent to me on 3 September 2025. The Reconsideration request concerns the decision of Employment Judge Perry to reject the response, such decision being sent to the parties on 22 August 2025. The Reconsideration request has come to me to deal with as I dealt with the Case Management Preliminary Hearing in this matter on 28 August 2025, at which I was informed by the Respondent’s legal representative that a Reconsideration application was to be made. I made this decision on the papers on 1 October 2025.[2]Under Rule 68 the Tribunal may reconsider any decision where it is necessary in the interests of justice to do so and a decision under Reconsideration may be confirmed, varied or revoked.[3]Under Rule 70 if the Tribunal considers there is no reasonable prospects of the decision being varied or revoked the application for Reconsideration must be refused. This reflects the public interest in the finality of litigation.[4]The Respondent’s request for Reconsideration was made within the required time limit.[5]The application for Reconsideration was supported by an evidence bundle of 22 pages. Where necessary I shall refer to the page numbers in that bundle. I also had a witness statement from Maryum Uddin, Litigation Executive at Peninsula and dated 22 August 2025. 1 of 5[6]On 9 April 2025 the Tribunal posted the ET1 and Notice of Claim to the Respondent’s address. The date for presentation of the ET3 response was confirmed to be 7 May 2025.[7]On 6 May 2025, the day before the ET3 response was due to be filed, the Respondent’s representatives Peninsula applied to the Tribunal by email for an extension of time to file the response. They sought an extension of time to 20 May 2025 and stated they were experiencing difficulties in obtaining information from the Respondent, having contacted them on 24 April and 30 April 2025 respectively. They further stated that the practitioner at Peninsula to whom the case had been allocated to had been ill on 30 April 2025 – 1 May 2025. 5 May 2025 was the May Day Bank Holiday. In Employment Judge Perry’s decision he noted that Peninsula provided no proof of their assertions (of being unable to obtain instructions and/or of ill-health) and had not provided an explanation as to why another person at Peninsula had not been able to deal with the matter in their colleague’s absence and had not explained why the Respondent had not responded to requests to provide information.[8]No response was in fact received by the Tribunal by either 7 May 2025 or 20 May 2025.[9]At the same time the Notice of Claim was posted to the Respondent, a Notice of Hearing for a Case Management Preliminary Hearing on 28 August 2025 had also been sent out by the Tribunal.[10]At 10:49 on 19 August 2025, and in advance of the forthcoming Case Management Preliminary Hearing, the Tribunal sent out an email to the parties with the log in details for that forthcoming hearing.[11]At 16:09 on 19 August 2025 Peninsula emailed the Tribunal chasing whether the ET3 response had been received and suggesting it had been filed by them on 20 May 2025 “however does not appear to show on the portal”. (Page 20 of the bundle).[12]At 08:19 on 20 August 2025 the Tribunal received the ET3 response. This was three months after the date for which the extension of time had been requested.[13]Employment Judge Perry’s decision to reject the response made it clear that he had made enquiries with the Tribunal’s internal IT team to confirm that whilst Peninsula had started work on the ET3 response on 20 May 2025, had completed most sections of it and downloaded a copy of it, they had not in fact submitted it until 20 August 2025. He noted that had they checked the portal it would have been apparent to them that neither the form ET3 or the Grounds of Resistance document had been uploaded. Further, they would not have received notification from the Tribunal that the response had been accepted. Employment Judge Perry noted there was no issues with the Tribunal’s IT system as at 20 May 2025.[14]Later in the day on 20 August 2025 at 17:22 Peninsula wrote again to the Tribunal. It was my understanding that this email (pages 2-3 of the bundle) was not before Employment Judge Perry when he made his decision to reject the response. However, his decision does refer to it briefly, such that he must have seen it. 2 of 5[15]In this correspondence Peninsula state that they had drafted the ET3 and were ready to submit it on 20 May 2025. They completed the necessary sections on the portal and uploaded the Respondent’s Particulars of Response as a separate document. They believed they had then submitted the ET3 response. At page 19 of the bundle was an email they sent to their client (the Respondent) at 17:24 on 20 May 2025 stating “I can confirm the ET3 response has been submitted to the Tribunal ahead of the deadline… The Tribunal will receive the ET3 response and confirm acceptance of the same. It can take some time for the Tribunal to do this so you may not hear from me for a while as I most likely will not have any updates until then”.[16]In the email to the Tribunal of 20 August 2025 at 17:22 Peninsula stated that “Upon further review, it has been established that all information had been inserted into the portal on 20 May 2025, but unfortunately, the last step of clicking “Submit the ET3” had not been undertaken”. At page 18 of the bundle was a screenshot of Peninsula’s One Drive IT system showing an ET3 form being last modified on 20 May 2025 at 17:19 and the Particulars of Response being last modified at 16:43 on the same date.[17]Peninsula also referred in the bundle and witness statement evidence to show its interaction with its client (the Respondent) leading up to 20 May 2025. Maryum Uddin confirmed they were allocated the case on 23 April 2025, but at this stage did not have “the full Claim Form” from the Respondent. No explanation as to why this was was given. Maryum Uddin sent an introductory email to the Respondent on an unknown date requesting the ET1 and information required to draft the ET3 response. This was chased on 6 May 2025, the day prior to the initial deadline for filing the response.[18]On 6 May 2025 Maryum Uddin made the aforementioned application to extend time. At this stage they were still not in receipt of the “full ET1” so did not copy in the Claimant.[19]On 16 May 2025 Maryum Uddin sent the draft ET3 response to the Respondent, page 11 of the bundle. On 19 May 2025 the Respondent replied and later that day a revised ET3 response was prepared. On 20 May 2025 Maryum Uddin chased the Respondent to agree the revised document, pages 12-14.[20]On 20 May 2025 Maryum Uddin and the Respondent exchanged further emails and at 13:36 Maryum Uddin asked the Respondent by email if they were content “for me to get this submitted”, pages 15-16.[21]In the witness statement Maryum Uddin states they received verbal instructions from the Respondent at 16:22 to file the ET3 response. They converted the Particulars of Response to a PDF to upload to the HMCTS portal and began inputting the Respondent’s details on the portal and uploaded the Particulars of Response. They downloaded the ET3 form from the portal and saved it on their IT system and believed the ET3 had been submitted.[22]In the witness statement Maryum Uddin states that when they received a reminder from the Tribunal on 19 August 2025 regarding the forthcoming Case Management Preliminary Hearing on 28 August 2025 they “had started preparing the bundle in readiness for the hearing. They say they logged on to the portal 3 of 5 and saw in answer to the question “Has the ET3 form been received?” as “No”. They do not say the date they started such preparation or when they looked at the portal, but the implication is that this was on or around 19 August 2025. They say they assumed they must have filed the ET3 by email but could not locate any such email. They went to the portal and realised they had not undertaken the final step of “Submit ET3 form”.[23]As already noted above, the Respondent made its Reconsideration application on 29 August 2025. In this it repeats the chronology set out above. It says at the time the ET3 was due, 20 May 2025, the Respondent’s representative had routinely submitted ET3 responses by email and the changing of the Tribunal Rules to require submission via the HMCTS portal involved an “unfamiliar process”.[24]The Respondent submits it genuinely believed it had submitted the ET3 on 20 May 2025 and on learning it had failed to do so it acted expeditiously on 20 August 2025 by filing the ET3. It says it is in the interests of justice to allow a late response. It says the Claimant is not prejudiced as it is relatively early in the proceedings. It refers me to the case of Pestle & Mortar v Turner [2005] and states it would be unjust for the failings of the Respondent’s representative to be visited on the Respondent.[25]As Employment Judge Perry noted the Respondent is represented by a nationwide legal services provider. Whilst it states it believed the ET3 had been submitted it did not check the portal at any time between 20 May and 20 August 2025. Had it done so, it would have been clear the ET3 had not been submitted. It had told the Respondent it anticipated receiving an “Acknowledgement of Response” communication from the Tribunal. It had not received such communication as at 20 August 2025 and had taken no steps to chase this either with the Tribunal or the Claimant’s representative.[26]Rule 17(1) of the Employment Tribunal Rules 2024 provides that an ET3 response must be submitted in accordance with any Practice Direction. Since 21 May 2025 the Presidential Practice Direction has provided four possible ways by which a Respondent can present an ET3: online using the HMCTS portal, by post, in person or exceptionally by email. The date for presenting the ET3 in this case predated this Practice Direction. It was open for the Respondent to present its ET3 by email on either 6 May 2025 or 20 May 2025, the latter date being the date it had sought by way of extension and the date it tried and failed to submit the ET3. For those using the portal the ET3 is divided into three sections to complete and after each section the user saves their progress. Once the ET3 is ready for submission the user selects “Submit ET3 form” and the system then shows a confirmation of submission receipt on the screen and an email confirmation that the ET3 has been submitted/received is sent out.[27]Rule 21 does not specify the grounds on which a Tribunal can grant an extension of time to present a response. In Kwik Save Ltd v Swain and Others (1997) ICR 49 the EAT emphasised the discretion “involves taking into account all relevant factors weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice”. I must consider the explanation offered by the Respondent. The more serious the 4 of 5 delay, the more satisfied I should be that any explanation is a genuine misunderstanding or understandable oversight. I must consider the balance of prejudice. I may consider the merits of the defence. On this latter point this is a claim of detriment and for automatic unfair dismissal on account of making protected disclosures. The Respondent accepts the Claimant made at least one protected disclosure but denies subjecting the Claimant to any detriment and says the reason for dismissal was poor performance.[28]In my Judgment the Reconsideration application should be refused. Employment Judge Perry’s decision noted that the Respondent’s representative had not provided evidence as to why the Respondent had not provided it with sufficient evidence to lodge the ET3 in time, or by 20 May 2025, and this continues to be the case. The ET1 was posted to the Respondent on 9 April 2025. It remains unclear why Peninsula were not instructed until 23 April 2025, some two weeks later, particularly when Peninsula had been instructed by the Respondent during the Claimant’s employment to investigate her concerns according to the pleadings. It is further unclear why the Respondent had not furnished Peninsula with the entire ET1 as of 6 May 2025. Employment Judge Perry also noted that whilst the Respondent’s representative had had two days sickness, the Respondent is a large provider of employment law advice services, and there was no explanation as to why a colleague could not have covered during any period of absence.[29]I accept the HMCTS portal is a relatively new system, however it was open to the Respondent to file the ET3 response by email at the relevant times, a method by which it would surely have had significant experience. Even when using the portal it is clear the Respondent’s representatives failed to take the final step to submit the ET3 and they should have been alerted to this by the system either not sending a confirmation, by the fact no “Acknowledgement of Response” confirmation was received from the Tribunal and/or by the simple step of checking the portal.[30]I have taken into account all the relevant circumstances and the more than three months delay in the submission of the ET3 response. Whilst the Respondent’s representative appears to have made a mistake, it was not assisted by the Respondent failing to fully instruct it in a timely manner and have regard to the deadlines set out in the Notice of Claim. The further delay is inexcusable.
Law
[31]The claimant confirmed during evidence that the respondent did not keep any holiday records. She did not take any holiday during this period April – December 2024, as she was accruing a substantial amount of TOIL, some of which she took when she could, for example page 104, on the 26/7/24 8 hours, page 105, 22/8/24 8 hours. It was confirmed that the claim for 27.5 days holiday pay was based on the pro rata holiday year from 1/4/24.[32]As the respondent's response has been rejected, there is no evidence submitted by the respondent to consider. Findings of facts and conclusions[33]I accept the evidence in the bundle, confirming the claimant was employed by the respondent under a contract commencing on the 3/6/24 and had worked for the respondent under a contract for services with Hayes Social Care Limited, from January – June 2024. I find the terms of that contract were that the claimant did not have any probationary period, £20 per hour was payable, and the same rate for overtime, 33 days holiday, and an agreement that the claimant could take time off in lieu where possible in relation to extra hours she had worked in excess of the 40 hours stipulated in her contract. I accept the claimant’s calculations in her statement of loss that her gross annual salary, including on call payments, was £49,211.00, and £38,951.52 net, monthly net pay of £3,245.97 and weekly net pay of £749.07.[34]I find the agreement to allow TOIL for additional hours worked, is corroborated by the claimant's handwritten timesheets at page 100 in the bundle. It is also referred to in the contract, at page 56 in the bundle. The claimant also refers to it in her letter to the respondent, dated 20/12/24 in the bundle. I accept the claimant's evidence that the respondent's operation required 24-hour staffing, and with only 4 staff, if any periods of absence or illness required covering, it fell to the claimant as manager to cover, this is reflected in her entries in her time sheets. Because of this she took TOIL, not annual leave, and accrued her annual leave.[35]In relation to the 19/7/24 visit to the premises by Mr Lawrence, I accept the claimant's account he disclosed to her he did not have a DBS check at that time. This is supported by the contents of the Peninsula investigation report at page 75. It is recorded that Mr Lawrence did not have a DBS check, and the respondent was advised to ensure all DBS checks were in place and advice be obtained via the CQC. I find the claimant raised a grievance and whistleblowing complaint in respect of this by e mail on the 29/10/25.[36]I find the claimant was made subject to a 6-month probationary period on the 3/12/24 by letter (page 72), in circumstances where her contract stated she was not subject to a probationary period. I accept the claimant’s statement and evidence to the tribunal that a probationary period was never discussed at any point from June 2024. The basis on which she was given a permanent contract in June 2024 was due to a successful inspection. In view of this and the previous 6 months under a temporary contract, this accords with the claimant's evidence that the respondent was pleased with the claimant's handling of the inspection and employed her permanently due to her good performance.[37]I note the evidence at page 73, that the claimant immediately questioned the probationary period by e mail dated 4/12/24, and added this to her grievance, which had been submitted on the 29/10/24. She sought to appeal the grievance outcome by e-mail dated 14/12/24 and appeal her dismissal by e-mail dated 20/12/24. The claimant confirms she did not receive any communication from the respondent in respect of either appeal.[38]I accept the claimant was notified on the 19/12/24 of her dismissal by letter; she was aware of it from this date, as she e-mailed the respondent on the 20/12/24 appealing against the decision. I accept the claimant’s evidence that she received no response to this letter. She was entitled to 3 months' notice in accordance with her contract, as she had 1 month or more service. Her effective date of termination considering the notice period would have been 19/3/25. The respondents letter dated gives 1 week notice, from the 20/12/24, and terminates employment on the 27/12/24. The claimant e-mailed the respondent on the 28/12/24, requesting her unpaid salary and expenses which had been withheld were paid. I accept the claimant’s account she did not receive a response to this e-mail.[39]I find that the respondent intended to terminate the claimant’s contract on the 27/12/24. In their letter dated 19/12/24, they give 1 weeks notice with effect from 20/12/24, stating the claimant’s employment will be terminated immediately thereafter. I accept the claimant's evidence that she was not paid for her expenses, full notice pay, and her salary was withheld in December. This is corroborated by the claimant's e-mail sent on the 28/12/24 (page 98), requesting payment as a matter of urgency. In my view, the claimant was entitled to treat the non-payment of wages / expenses as a fundamental breach of contract by the respondent on the 28/12/24, entitling her to view the contract as terminated.[40]The claimant is an employee able to bring an automatic unfair dismissal under section 111 (3) Employment Rights Act (1996), as it is presented after dismissal but before the effective date of termination. In respect of the detriment claims, the claimant is a worker who has brought complaints within 3 months of the date of the last act of detriment, failing to pay expenses and salary and being placed on probation in December 2024, section 48 (3) ERA (1996). I consider that the respondent had terminated the claimant’s contract on the 27/12/24, entitling the claimant to bring breach of contract complaints in her ET1 lodged on the 6/3/25. The non-payment of wages claim has been brought on the 6/3/25, within 3 months of the date of the non-payment of wages, the 28/12/24, under section 23 (2) ERA (1996). The claimant has a contractual right to be paid on termination of contract, for accrued but untaken holiday. The contract at page 56 states ‘any holidays accrued but not taken will be paid for on termination’.[41]For a claim of automatic unfair dismissal, the claimant must show that the reason for dismissal was a protected disclosure / or show that there is an issue which warrants investigation. If this is shown, the burden of proof moves to the respondent who must show on the balance of probabilities that dismissal was not because of a protected disclosure. In relation to the detriment claims the claimant needs to demonstrate there was a protected disclosure, the claimant was subject to a detriment, and the respondent subjected the claimant to that detriment. If those matters are established, the burden of proof shifts to the respondent, to show that the claimant was not subjected to a detriment on the grounds they made a protected disclosure.[42]I am satisfied the disclosure by e mail on the 29/10/24 disclosed information, it was a grievance, a disclosure of facts in relation to Mr Lawrence not having a DBS check, conducting himself in an inappropriate manner on specific dates, concerns re: residents safely, overall risks to the standard of care provided. I find that the verbal disclosures the claimant made on the 14/11/24 to Peninsula, about the same concerns during the grievance process, also disclose information. I find that the claimant reasonably believed it was in the public interest to make both disclosures; the claimant had legal responsibility as the manager to the CQC. I find that the claimant believed they tended to show breach of a legal obligation in respect of appointing individuals without DBS checks, and the health and safety of residents was likely to be endangered, as they were exposed to behaviour which may not have been in their best interests. The disclosures were made to the employer and are therefore protected disclosures.[43]In respect of the 4/12/24 e mail to Peninsula and the respondent from the claimant, I find it disclosed information. The claimant was alleging she had been discriminated against by the imposition of a probationary period, in a letter from the respondent dated 3/12/24. I find the claimant reasonably believed that the disclosure was in the public interest, although it related to the claimant specifically; it identified potentially serious and deliberate behaviour by the respondent. I find that the claimant believed it tended to show breach of a legal obligation, the duty for an employer not to subject an employee to a detriment, when they have made a protected disclosure. The disclosure was made to the employer and was a protected disclosure.[44]In relation to the 2 detriments, I am satisfied the respondent subjected the claimant to detriments, by the imposition of a 6 – month probationary period by letter on the 3/12/24, and by failing to pay the claimant her expenses and salary in December 2024, she was put at a disadvantage. The failure to pay expenses is referred to in the claimants e mails dated 4/12/24 and 28/12/24. The termination letter dated 19/12/24 refers to the payment of 1 week notice, rather than the 3 months the claimant was contractually entitled to. I am satisfied the protected disclosures on the 29/10/24 and 14/11/24 lead to the imposition of probationary period, the respondent had not had any performance reviews, no details of any concerns with her performance had been shared, and there appears to be no other rationale for it, apart from in response to the whistleblowing complaints. I am satisfied the claimant’s complaint about the probationary period on the 4/12/24, and the previous complaints on the 29/10/24 and 14/11/24, lead to the withholding of salary and expenses in December.[45]I am satisfied the claimant has demonstrated she was dismissed for making the 3 protected disclosures, and this was the principal reason for dismissal. The respondent is not participating in the proceedings and cannot discharge the burden of showing the dismissal was not because of making protected disclosures. The complaint of automatic unfair dismissal succeeds.[46]On the basis the claimant has demonstrated there were 3 protected disclosures, and 2 acts of detriment flowing from them, which the respondent was responsible for, the burden of proof shifts to the respondent to show that the claimant was not subject to detriments on the grounds of making protected disclosures. The respondent is unable to discharge this burden, as they are not participating in the proceedings. The 2 complaints of detrimental treatment succeed.[47]I have accepted the claimant was entitled to 3 months' notice pay. She did not receive any notice pay, as December 2024 ‘s payment was withheld, and no further payments were made. The claimant seeks net weekly pay £749.07 x 12 weeks = £8,988.84.[48]The claimant did not receive her salary for December 2024 as this was withheld. The claimant’s schedule of loss confirms figures on the wage slip at page 122, the claimants claim is for £3,211.97 net salary.[49]The claimant seeks £757.44 for unpaid expenses, and pages 116 – 125 evidence receipts for expenses, and pages 113 – 114 show handwritten entries for petty cash amounts. The claimant's claim is for £757.44.[50]I have accepted the claimant’s account that she did not take any holidays. The holiday year runs from the 1st of April to the 31st of March the following year, in accordance with the terms of her contract. She is entitled to recover monies under the contract for accrued but untaken holidays. I accept the pro – rata calculation, that the claimant is entitled to 27 1/ 2 days, at £148.23 net daily rate, a total of £4,076.33.[51]The claimant has provided TOIL handwritten sheets in the bundle at pages 100 – 109. I note paragraph 30 of my judgment and the claim for unpaid TOIL, 356 hours at £20.00 per hour, £7.120.00 in total is claimed. Evidence heard in respect of remedy[52]The claimant confirmed she went back to the agency Hays Social Care Limited, after she had been dismissed. She made efforts between the 31/12/24 and 10/2/25 to get a job. The bundle contains evidence of an e mail to Hayes on the 13/1/25, at page 99, asking for any available work, and asking why she had not had a response to her enquiries for work. She explained it was a difficult time over the Christmas period, made worse by the respondent withholding her pay in December 2024. Hays advised her because she had been dismissed; she would be unable to secure further roles with them. The claimant described the stress the circumstances and dismissal caused her; she was upset, and not sleeping, and the financial pressure it put her under. Ms Hussain questioned the claimant about whether it was the financial pressure that caused her stress, rather than the treatment received. The claimant answered that it was a combination of the 2, a very difficult time; she did not see it coming. (the treatment and dismissal)[53]A role came up with Diligenta, as a customer service representative, at a much lower salary of £23,088 gross, £20,142.96 net. The claimant advised she took the job starting on the 10/2/25 as she had no choice and struggled in the role due to stress of the new role and what happened with the respondent. She was off sick from the 3/4/25 - 18/7/25 and received statutory sick pay, never returning to the role. In evidence she described not being able to cope with the call centre environment, combined with the stress of the dismissal.[54]The claimant secured a role with the Care Quality Commission, starting work there on the 26/8/25, and remains employed as an inspector. The salary was less than paid by the respondent, a gross salary of £39,784.00, net £32,164.08. She became upset whilst giving evidence, and the tribunal paused for her to take a break. In answer to my question, she said she had not done anything to top up her salary; she was still training at the CQC, but her salary would not increase above this band.[55]She described feeling traumatised by what happened, her health and welfare suffering, and not having any income from the end of December 2024 to 10/2/25. This was particularly difficult as she did not have any savings to fall back on. She felt as though she had lost confidence and was still putting herself back together. I asked if she had attended the GP, and she explained this was not possible, as she was looking for another registered manager role. Her health and well-being would be checked by prospective employers; she could not go to the doctors and be signed off with stress as it would affect her employment prospects. She confirmed she did not take any medication at the time, including over the counter medication, or access any counselling or support services; she advised her family supported her. Conclusions in respect of remedy[56]I find that the claimant gave credible evidence to the tribunal, that she attempted to gain alternative employment after her dismissal in December 2024. This is corroborated at page 99, by an e mail the claimant sent to Hayes recruitment agency on the 13/1/25. She did not obtain a new role until the 10/2/25, and I accept her evidence about the salary received in this role and the absence from work on sick leave between 3/4/25 - 18/7/25. I accept that the absence was due to a combination of factors, as conceded by the claimant in evidence, in relation to stress of the new role and the stress she felt due to the circumstances of her dismissal.[57]Whilst I note the claimant did not see her doctor after the dismissal, or during the next 6 months in relation to her loss of confidence, not sleeping and feeling upset at how she had been treated, I accept her evidence that the treatment and dismissal had a significant effect on her at a difficult time of year. This is then followed by a 3-month absence from work in a newly acquired role. I accept her account that she was distressed and did not anticipate blowing the whistle would result in her dismissal.[58]I accept the claimant's evidence that her salary when employed by Diligenta in February 2025 was £20,142.96 net, and she was employed there until 18/7/25, although for the period 3/4/25 - 18/7/25 she was in receipt of statutory sick pay.[59]I accept the claimant's evidence she obtained a new role with the Care Quality Commission on the 26/8/25, at a net salary of £32,164.08, and remains employed in this role. 58. I note the guidance in Wilding v British Telecommunications plc (2002) IRLR 524, CA. The onus of proving the claimant failed to mitigate her losses falls on the respondent. The respondent has failed to do so in this case, as they have not participated in the proceedings fully, or sought permission to adduce any evidence to demonstrate a failure to mitigate losses. 59. I have considered the claimant's schedule of loss carefully. In relation to the compensatory award for automatic unfair dismissal, in respect of loss of earnings, the claimant presents £26,424.80 as the sum the claimant would have earned over the 34-week period from the end of her notice period in March 2025, To the 26/11/25 if she had remained employed by the respondent. This is based on the net weekly pay figure of £749.07, in addition to a 3% weekly employers pension contribution of £28.13. Offset against this was the claimant's earnings from Diligenta, for the period 10/2/25 - 18/7/25. This was £3,031.62, including £2,650.67 salary and £380.95 in employers' pension contributions. The claimant received a total of £1,425.00 sick pay for the period April – July 2025. The claimant also offsets her earnings at the Care Quality Commission, for the period 26/8/25 - 26/11/25. This includes her basic weekly salary of £618.54 for 13 weeks and pension contributions of £110.02 for 13 weeks, totaling £9,471.28. Loss of earnings is calculated at £26,424.80 minus £3031.62, minus £1425.00, minus £9471.28, total loss of earnings of £12,496,90. I am content those figures are accurate and represent the loss of earnings the claimant sustained from the end of her notice period to date of hearing. The figures have not been challenged by the respondent.[60]In respect of future earnings, the claimant seeks to recover 6 months of future loss of earnings, the difference between the salary and pension contributions received in her role with the respondent, and her current role with the Care Quality Commission. This is calculated on the claimant’s schedule as £749.07 weekly salary with the respondent, minus £618.54 current salary with the CQC, £130.53 difference. The claimant's pension contribution at the respondent was £28.13 weekly compared to £110.02 at her current employer. The difference is - £81.59, this subtracted from £130.53 gives a weekly loss of £48.64. The total claim is £48.64 x 26 weeks, £1,264.64. I accept that the claimant has been in training with the CQC and has been required to focus on this rather than seek to secure additional income. The respondent has not adduced any evidence she has failed to mitigate her loss. It is reasonable in the circumstances to allow the claimant to recover 26 weeks' loss of future earnings.[61]The claimant seeks a 25% uplift to the compensatory award, based on the respondent's failure to comply with the ACAS code on disciplinary and grievance procedures. I accepted the claimants account that she sent a whistleblowing and grievance e mail on the 29/10/25, which resulted in external consultants investigating and providing a report on the 14/12/24, which partially upheld her complaints in respect of Mr Lawrence. I found that the claimant appealed the outcome of the grievance on the 14/12/25 and did not receive a response. Noting her complaint was partially upheld, it would have been reasonable for the respondent to follow ACAS procedures and follow an appeal process in respect of the claimant's grievance. Considering the approach in Slade and Biggs (2021) UKEAT/0016/20, I find it is just and equitable to allow an uplift, and consider that an uplift of 15% would be appropriate in this case, to reflect the departure from the code of practice, in not acknowledging the claimants appeal request in respect of the grievance, and following an appeals process.[62]I have referred to the evidence supporting the claimant in respect of failure to pay notice pay, December 2024 salary, unpaid expenses, holiday pay and for time off in lieu, at paragraphs 47 –51 above. Accordingly, I allow the claims for 3 month's notice pay £8,988.84, December 2024 salary £3,211.97, unpaid expenses of £757.33, unpaid holiday pay of £4,076.33 and outstanding time off in lieu of £7,120.[63]The schedule of loss seeks the tribunal order £25,000 for injuries to the claimant's feelings because of the 2 detriments she suffered, being put on a probationary period for 6 months in December 2024, and a failure to pay her salary and expenses in December 2024. Claimant’s counsel asked me to consider the toll on the claimant, and the impact of her not sleeping, feeling anxious and stressed, in relation to the respondent’s treatment of her. The respondent questioned the claimant concerning whether the financial impact of what happened caused her stress, rather than the treatment she received. The claimant said it was a combination of both; she could not separate it out, and she felt injured due to the treatment she received, describing herself as a nervous person now.[64]I have considered the guidance in BAE Systems and Konczak (2017) IRLR 893, that the tribunal's role is to compensate for the suffering caused by the detrimental acts, and not the act of dismissal itself.[65]This claim was issued on the 6/4/24. The 7th addendum to the Presidential Guidance issued on the 5/9/17 in respect of employment tribunal awards for injury to feelings (Vento guidelines) apply in respect of this claim. In relation to injury to feeling awards, the lower band is between £1,200 - £11,700, the middle band between £11,700 - £35,200 and the higher band £35,200 - £58,700.[66]I consider the guidance from the EAT in Prison Service and Johnson (1997), IRLR 162, injury to feelings awards should be compensatory, focusing on the injury to the claimant rather than actions of the respondent. Also, the tribunal should consider the value in everyday life of the sum awarded, and the public need to respect awards made by the tribunal. I note that Virgo Fidelis School and Boyle (2004) IRLR 268 reminds tribunals that injury to feelings awards for detriment claims, should be treated in the same way as discrimination claims under the Equality Act 2010 and should be treated seriously.[67]I find the impact of the imposition of a probationary period and withholding of salary and expenses in succession in December 2024, caused the claimant anxiety, stress and sleepless nights. The withholding of salary in December 2024 was partly responsible for the claimant's stress and anxiety until she secured an alternative role in February 2025. I accept that the dismissal caused further stress and anxiety, which the injury to feelings award should not apply to. In respect of the claimant's absence from work from April 2025 on the claimant's own evidence it was due to a combination of factors, the stress of the dismissal and the call centre environment, it was not suggested it was because of the detriments previously suffered.[68]Taking the above factors into account, I find the award should sit in the middle band of Vento, considering it was 2 acts of detrimental treatment in quick succession over a period of a few weeks. I have determined the award is at the lower end of the middle band and award £13,000 in respect of injury to feelings. Calculation of award Compensatory award for automatic unfair dismissal 1. Past loss of earnings (At respondent 3/25 - 26/11/25) 34 weeks x £749.07 (net weekly pay) = £25,468.38 34 weeks x £28.13 (weekly pension contributions) = £956.42 Total = £26,424.80 2. Less new earnings at Diligenta Limited (10/2/25 - 18/7/25) Total salary received = £2,650.67 (Claimant largely on sick leave) Pension contributions = £380.95 Total = £3,031.62 3. Less Statutory Sick Pay April – July 2025 = £1,425.00 4. Less new earnings at CQC (26/8/25 - 26/11/25) 13 weeks x £618.54 (net weekly pay) = £8,041.02 13 weeks x £110.02 (pension contributions) = £1,430.26 Total = £9,471.28 5. Total past loss of earnings £26,424.80 - £3,031.62 - £1,425.00 - £9,471.28£12,496.90 6. Future loss of earnings 26 weeks post hearing Difference between current and previous employment £749.07 (net weekly pay at respondent) - £618.54 (net weekly pay at CQC) = £130.53 Pensions contributions £28.13 (at respondent) - £110.02 (at CQC) = - £81.89£130.53 - £81.89 = £48.64£48.64 x 26 weeks = £1,264.64 7. Compensatory award £12,496.90 Past loss of earnings £ 1,264.64 Future loss of earnings £13,761.54 8. ACAS Uplift 15% of £13,761.54 = £2,064.23 9.Total Compensatory award £13,761.54£ 2,064.23£15,825.77 Injury to feelings award for detriments £13,000 awarded Interest: payable from date of acts of detriment to date of calculation 3/12/24 - 27/1/26 420 days x 0.08% x 1/365 x 13,000 = £1,196.71£13,000£ 1,196.71£14,196.71 Notice pay £749.07 (net weekly pay) x 12 weeks = £8,988,84 net Unpaid wages December 2024 - £3,211.97 net Unpaid expenses £757.44 Unpaid accrued holiday pay 27.5 days x £148.23 (net day rate) = £4,076.33 Unpaid time off in lieu 356 hours x £20.00 (hourly rate) = £7,120.00 Summary of award Compensatory award £15,825.77 Breach of contract / notice pay £ 8,988.84 Injury to feelings award £13,000.00 Interest on injury to feelings award £ 1,196.71 Unpaid wages £ 3,211.97 Unpaid expenses £ 757.44 Unpaid accrued holiday pay £ 4,076.33 Unpaid time off in lieu £ 7,120.00 Total award £54,177.06[69]I note the decision of Wealmoor Limited and Poniatowski 2025 EAT 48, in which the EAT concluded injury to feelings awards relating to pre termination discrimination are not subject to taxation, and are not required to be grossed up. On the basis that awards for injury to feelings in respect of detriments suffered are treated in the same way as discrimination complaints, I have proceeded on the basis the £13,000 injury to feelings award and £1,196.71 interest are not subject to grossing up.[70]In accordance with section 401 Income Tax (Earnings and Pensions) Act (2003), I have considered which payments or benefits will be received in connection with the termination of the claimant's employment. I consider this applies to the compensatory award of £15,825.77 and the breach of contract award £8,988.84. These awards total £24,814.61, under the £30,000 threshold, over which a grossing up calculation is required. The awards in respect of unpaid wages, time off in lieu, and unpaid but accrued holiday pay, have been calculated as net figures, and have not been included in the calculation to determine if grossing up is required.
Law
[1]Rule 69 of the Employment Tribunal Rules 2024 requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. The respondent made an application for reconsideration on the 12/2/26, after receipt of a reserved judgment on liability and remedy on the 5/2/26. The application for reconsideration is therefore made in time.[2]Rule 70 (1) of the Employment Tribunal Rules 2024 provides: “An Employment Judge shall consider any application made under rule 69. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …”[3]The application for reconsideration appears to be made on the following grounds:(a) The tribunal did not consider the nature of the respondent's business and the paying ability of the respondent;(b) There was an error in grossing up the ACAS uplift;(c) The tribunal did not give reasons for a refusal of a stay application made at the hearing. Case Number: 6007758/25 It appears the grounds put forward relate primarily to the remedy aspect of the hearing.[4]I deal with each of the points put forward by the respondent below.(a) On the 22/8/25 Employment Judge Perry rejected the respondent's response under rule 19 Employment Tribunal Rules 2024 and directed the respondent to only participate at final hearing to the extent allowed by the Employment Judge. On the 1/10/25, Employment Judge Hindmarsh refused the respondents' application for reconsideration of this decision. An appeal is pending at the EAT in respect of this decision. Ms Hussain attended the final hearing on behalf of the respondent and remained throughout the hearing. She confirmed the respondent had not lodged any documents in the case and accepted that she was limited to representations on remedy. I allowed Ms Hussain to ask questions of the claimant in evidence in respect of remedy. Subsequently, I asked if Ms Hussain had any submissions to make on remedy issues, and she confirmed she did not. This was the respondent’s opportunity to give any relevant information, for example about the nature and type of the respondent’s business, and its ability to pay. The respondent did not provide this information.(b) I allowed an ACAS uplift of £2,064.23 in relation to the compensatory award for automatic unfair dismissal. I did not gross this up in my calculations and explained at paragraphs 69 and 70 of my judgment that I had not grossed up any part of the award made. (c ) I refer at paragraph 5 of my judgment to the respondent's application for a stay of proceedings which was made on the 9/11/25. I summarised the position in that paragraph, the claimant opposed the application in an e mail dated 25/11/25, and Employment Judge Maxwell refused to stay the proceedings, directing the hearing listed on the 26/11/25 remain listed. In relation to this decision, reasons were given by my colleague for his decision in an e mail. I have checked my notes of hearing and have no record of the respondent renewing its application for a stay of proceedings at the start of the 26/11/25 final hearing, or of any submissions made by the claimant in response. On the basis that I did not hear such an application, I would not be required to give any reasons.[5]I note the respondent also seeks a stay of the proceedings at this stage, which is a separate application to the request for a reconsideration. I will seek representations on the stay from the claimant and deal with that separately.[6]In respect of the application for reconsideration, I have exercised my discretion to refuse the application for reconsideration, as there is no reasonable prospect of the judgment being varied or revoked. Date: 01/03/26 Approved by