Ms V Abbas v ISS Facility Services Ltd: 8000146/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000146/2023
Between
Ms Vaneeza AbbasClaimantISS Facility Services LimitedRespondent
Before
Employment Judge J G d’InvernoMr P Livingston of (instructed by Counsel) for respondentDate 5 December 2023
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s Application for Leave to Amend is refused.
REASONS
Overview and Procedural History and Factual Background[1]This case called, on the Cloud Based Video Platform, for determination of the claimant’s opposed Application for Leave to Amend dated 4th July, at Edinburgh on 11th September 2023 at 10 am.[2]The claimant appeared in person. The Respondent Company was represented by Mr Paul Livingston of Counsel.[3]There was before the Tribunal a hearing bundle extending to some 81 pages to some of which reference was made in the course of submission. Each party addressed the Tribunal in submission, the respondent’s representative setting out the Grounds of Opposition at first instance, the claimant responding thereto and the respondent’s representative exercising a limited right of reply.[4]The claimant first presented her initiating Application ET1 to the Employment Tribunal on 2nd of April 2023.[5]In her initiating Application the claimant bears to give notice of a complaint of Direct Discrimination, in terms of section 13 of the Equality Act 2010, because of her protected characteristic of sex, she being a woman, and assertedly evidenced by:-(a) The respondent’s failure to provide a ladies washroom, and their advising the claimant that she should use the accessible toilet;(b) By her locker being opened without permission and no action taken in respect of it;(c) By her being referred to as “a horrible person and not good for work”;(d) The boiler and air conditioning being switched off;(e) Non payment of company sick pay;(f) Of personal injury in 2019 and of being provided with a metal chair.[6]The claimant separately asserts:-(a) that she was sexually harassed in terms of section 26 of the Equality Act 2010 in March of 2022.(b) That she was owed holiday pay, arrears of pay and other payments.[7]The respondent entered appearance resisting the claims, denying:-(a) That the claimant was subjected to unlawful discrimination on the basis of her sex;(b) That the claimant was subjected to harassment on the basis of her sex and or harassment of a sexual nature; and(c) That the claimant was owed any arrears of pay, whether holiday pay, sick pay or other payments as alleged or at all;(d) Seeking specification/additional information about the type of discrimination claimed, the details of each of the allegations referred to and the basis upon which the claimant considered that the reason for her treatment was her sex; and(e) Asserting that some of the acts or omissions identified were time barred having occurred before 11th of November 2022.[8]By letter dated 4th May 2023 the claimant wrote to the Tribunal and the respondent’s representative in the following terms:- “4th of May 2023 Case Number 8000146/2023 I request to amend my existing claim as I missed one which is related to “pay rise”. My pay was increased 2 times in the year 2022, once in April and second in October 2022. Which I think in April it was not raised the rate which company was paying the other staff, so company raised it after 6 months to make the rates equal to others. I request to allow me to discuss this to respondent in preliminary hearing. Looking forward. Best regards. cc respondent ISS Facilities Services.”[9]The issue of the claimant’s potential amendment was discussed before Employment Judge Maclean at the Closed Preliminary Hearing Case Management Discussion on the 1st of June 2023.[10]Judge Maclean deals with the letter at paragraph 7 of her Note of Output dated 2nd June and under the heading “Preliminary Issues”, viz; “7 There was brief discussion about the claimant’s letter dated 4th May 2023 seeking to amend her claim. I had difficulty understanding the statutory and factual basis of the proposed amendment; and why it was not included in the claim form. Without this information I felt that it was premature to consider the application to amend. I issued an Order seeking this information and to allow the respondent an opportunity to consider the matter.”[11]In paragraph (Third) of her Case Management Orders of the same date Judge Maclean directed as follows:- “3. If the claimant wishes to amend her claim form as mentioned in her letter of 4th May 2023 the claimant should write to the Tribunal and copy the respondent by 21st June 2023 setting out:(a) What is the statutory basis of the claim that she is making in the application to amend?(b) What facts in her claim form does she rely upon in support of that claim?(c) If she relies upon additional facts what are they?(d) Why was this claim not included in the claim form that she sent on the 2nd of April 2023?(e) Why should the Tribunal exercise its discretion and allow the application to amend?”[12]By letter dated 19th June 2023 the claimant wrote to the Tribunal, copied to the respondent, in the following terms:- “Case Number 8000146/2023 I request to amend my existing claim as I missed one which is related to “pay rise”. The reason for the amendment request is that I am an individual and was filling up my form by myself so I missed this claim to fill up in the original form. I was the only security officer working on the site by the time of that increment, as my colleague resigned in 2021 and hiring was in process. There is also one site supervisor whose annual increment is different than mine because of the role. So there was no-one who I could compare my salary apart from estate colleagues who are based on different VMO2 locations, when I asked couple of them they confirmed that their increment was only once in a year, this clearly shows that I was not given the increased rate but the minimal than the others. So at first place increment should be equal to the estate colleagues which they were getting by that time. The letter sent by Jonathan William (Regional Manager) on 18th October clearly mentioned that company was paying me less rates and want to rectify it, it should be started from April not from October (letter attached). I request the court for amendment permission. Calculation for this claim will be provided after permission. Looking forward. Best regards cc respondent ISS Facilities Services Limited.”[13]The terms of the claimant’s correspondence of 19th June 2023 were not complaint with Judge Maclean’s Order. The claimant did not comply with the terms of Judge Maclean’s Order by the deadline set of 21st June 2023.[14]By letter dated 4th July 2023, the claimant wrote to the Tribunal in the following terms cc the respondent:- “July 4th 2023 Case Number 8000146/2023 I request to amend my existing claim as I missed one which is related to pay rise. 3A. The statutory basis of the claim are about the original dates of pay rise. Pay rise appears on salaries every year in April, in my case it was twice first time in April and second time in October. 3B. Past 4 years, every time my salary was increased in April, only in year 2022 it was increased twice in April and in October. I called a couple of my colleagues (ISS) who are based on different VMO2 locations, they confirmed that they only got one increment which was in April 2022. 3C. I was the only security officer working on this site by the time of that increment, as my other colleague resigned in 2021 and hiring was in process. There is also one site supervisor whose annual increment is different than mine because of the job role. So there was no-one who I could compare my salary apart from colleagues who are based on different VMO2 locations. At first place increment should be equal to the colleagues which they were getting in April 2022. In April 2022 I should be give the full pay rise, instead of that it was given in parts. The letter sent by Jonathan William (Regional Manager) on 18th October clearly mention that company was paying me less rates and want to rectify it, it should be started from April not from October (letter attached). 3D. The reason for amendment request is that I am an individual and was filling up my form by myself so I missed this claim to fill up in the original form. 3E. I request the court for claim amendment permission because of an individual and representing myself without any legal and professional help. I got very basic knowledge about the law and the learning process through different websites and articles. Looking forward. Best Regards. cc respondent ISS Facilities Services Limited.”[15]The claimant’s letter of 4th July 2023 was compliant only in part with the requirements of Judge Maclean’s Order. The letter of 4th July is the latest iteration of the terms which the claimant seeks Leave to Amend into her pleaded case.[16]By correspondence dated 19th July the respondents wrote to the Tribunal opposing the Application to Amend and setting out the Grounds of Resistance.[17]By letter dated 24th July 2023 the Tribunal, having acknowledged receipt of the Application of 4th July and the Grounds of Objection of 19th July, wrote to parties enquiring whether either had a preference for the Determination of the Application on paper without a Hearing, or alternatively at a Hearing.[18]By correspondence dated the same day, 24th July 2023, the respondent indicated a preference for Determination of the Application on paper.[19]By correspondence dated 31st July 2023 the claimant indicated her preference for a Hearing. By email dated 4th August Judge Maclean’s Direction that the Application be listed for Determination at an Open Preliminary Hearing subsequently fixed for 11th September 2023, was issued to parties. Summary of Submissions for the Respondent in Opposition to the Application[20]The respondent’s representative contended that, pursuant to the principles set out in Selkent Bus Company Limited v Moore [1996] IRLR 661, the Application ought to be refused on the following grounds:-(a) That neither the Proposed Amendment and its effect, nor the basis in fact and in law for the claim which it was sought to introduce, could be discerned from the terms of the Application (the claimant’s letter of 4th July). That that of itself was a factor, if not a ground on its own right, which mitigated against the granting of Leave.(b) The nature of the amendment – what the Application/terms of amendment disclosed, at their highest, was that the complaint which the claimant sought to introduce was one which related to the fact that her salary had been reviewed and increased on 2 occasions in 2022 rather than on one occasion only (in April), with an unspecified suggestion that that was because of her sex. If that was the proposed claim, it could not be discerned from the existing pleadings and thus the amendment proposed was a “significant amendment”. It was not a mere relabelling nor was it a building on facts already pled. It was a new cause of action with new facts.(c) Time limits. - On any view, relating as it appeared to do to an act or omission of the respondents which occurred in April of 2022 which failing October 2022, the potential claim was substantially out of time as at today’s date, 11th September 23. It was also out of time even if it fell to be regarded as having the subject of an Application for Leave to Amend on the 4th of May 2023. The claimant had first made contact with ACAS on the 11th of February 2023 and thus, acts or omissions founded upon as having occurred before the 11th of November 2022 were time barred. The Application did not include nor, did the claimant’s oral submissions (confirmed when exercising the respondent’s right of reply), any good explanation for the delay or why, in the circumstances, it would be just and equitable to extend time. The claimant’s explanation that she was a litigant in person and had simply missed this claim was, of itself, insufficient to constitute a good explanation for the delay and neither, absent something more, did it provide a basis in law on which the Tribunal might judicially exercise its discretion to extend time.[21]Timing and Manner of the Application – there had separately been delay on the part of the claimant in making the Application and of providing such specification/detail of the basis for it as she had ultimately done.(a) Her complaint to the Employment Tribunal was first presented on the 2nd of April 2023. And although as was evidenced by her letter of 4th May she was aware of her oversight as at that date and had been advised by ACAS that she must make an Application for Leave to Amend she only proposed discussing the matter at the Closed Preliminary Hearing set down in the case for 1st of June.(b) In terms of her Note of Output and Case Management Orders of 1st June Judge Maclean had made clear that the terms of the letter of 4th May 2023 were inadequate for the purposes of supporting an Application for Leave to Amend. She allowed to the claimant a period of 3 weeks from that date within which to make an Application providing specific detail all as directed by the Tribunal in paragraph 3 of the Judge’s Case Management Orders.(c) While the claimant had written a further letter to the Tribunal on the 19th of June 23, that letter had failed to address any of the questions or provide any of the specification directed at sub paragraphs 3A to E of Judge Maclean’s Order.(d) While the claimant wrote a further letter on the 4th of July 2023 (a further iteration of the terms of the Proposed Amendment and Application), that letter was sent some 2 weeks after the expiry of the deadline set by Judge Maclean and in its terms was not fully compliant with the Judge’s Order.(e) That position of non compliance remained as at the date of today’s Hearing, 11th September, some 2½ months later.[22]That the claim which was proposed in terms of the Proposed Amendment, in so far as it was possible to discern the same, was one which enjoyed no reasonable prospect of success for the following reasons(a) The terms of the amendment continued to fail to disclose any basis in law, whether in statute or contract, and or any basis in fact, for the purported complaint which appeared to be that the claimant’s pay, when increased in April 2022, was not increased at the correct rate in comparison to other employees of the respondent and because of that the respondent further raised the claimant’s pay to rectify the issue in October of 2022. That proposition was wholly speculative. There was no offer to prove primary facts which, if proved would support such a finding.(b) The reality was that the respondent completed an annual pay review in April of each year which typically results in a standard uplift to colleagues’ pay rates. In April 2022 the national living wage increased by 59 pence from £8.91 to £9.50. Accordingly the respondent decided to increase the claimant’s hourly pay by the same amount of 59 pence from £9.51 to £10.10.(c) In October of 2022, the claimant’s hourly rate was further increased from £10.10 to £10.35 and the claimant, amongst others, was advised by letter dated 18th October 22 that the pay increase resulted from the respondent having “conducted an exercise where we were benchmarking our pay rates against the local market”. Additional funds had become available on the Virgin Media 02 (VM02) contract which resulted in a business decision to harmonise pay. The claimant’s speculation as to the reason for the two increases in the same year was unsupported by any offer to prove relevant primary fact and was wholly misconceived.(d) The balance of injustice and hardship of granting the amendment was greater than the injustice and hardship of refusing it, that position being exacerbated by the fact that the claimant still failed to properly particularise the proposed amendment and therefore the proposed additional claim in terms of the Tribunal’s Orders of 1st June 2023 such as to afford the respondent, let it be assumed that the Application was granted, fair notice of the claim which it had to meet. The Claimant’s Submissions[23]With a view to doing justice to the claimant’s submissions I set them out below in full.[24]The claimant submitted as follows:-(a) “I want to mention that I have no knowledge of the law.(b) On the first time I missed this claim. I told ACAS who said I must amend.(c) I want to relate this claim to the discrimination. I have 3 questions that I want the answers to.(d) My only query was about the pay rise, in April 2022 from £9.50 to £10.10 per hour and in October to £10.52. On previous occasions when there was a pay rise there was a letter telling you what it was for. In April of 2022 there was no letter just told there’s a pay rise. In October there was a letter which said the pay rise was due to the fact that we were being paid less than the market rate.(e) So my question is my salary was increased in October. When that happened I was the only worker on my site. That’s my first argument, then they show me a spreadsheet which is in the bundle at page 81. That spreadsheet refers in the second and the third entry to 2 officers at Tannochside. One of them is me but there was no other officer. From May of 2022 to December of 2022 I was the only officer at Tannochside so, by way of benchmarking, they gave an increase to a non existent person in the spreadsheet. So some unknown person was drawing down salary from April to October of £10.10 per hour and from October to December of £10.35 per hour.(f) So another point is that the spreadsheet is not dated. It does not say what the percentage increase was and why. Further down on the spreadsheet appears the Croydon security officer. There are 4 showing there but only 1 out of the 4 got an increase.(g) On page 80 there is an email dated 1st September 2022 referring to this Schedule so why is it presented as evidence. If we go back to page 79 we see 2 other emails, 18th May and 22nd May, both 2023. So this document was prepared I think after I asked my questions.(h) The last question is that a company search shows that the respondent says it had £12,000 in the budget and wanted to distribute it as pay rises. In September 2023 to December 2023 I sent emails about the Covid risk associated with cleaning. The respondents did not respond to those emails. If they had £12000 to spend they should have used it more wisely. They should have used it to buy toilet rolls and soaps for us. I was having to bring in my own toilet roll.(i) There was no cleaner on the site from June 2022 to August 2023 so there were no cleaning products being renewed and we had to use our own toilet materials.(j) So my question is the same, they should spend this money on cleaning at my site which was very dirty. I am just proposing.(k) So I think that is all the points which I have discussed so far.”[25]When asked by the Tribunal if there was anything else which she wished to say in support of her Application for Leave to Amend, the claimant having taken time to consider replied “No that is all I want to say about my application because I am a person doing this for myself.” The Respondent’s Reply[26]In exercising a restricted right of reply the respondent’s representative made three points:-(a) That this was the claimant’s Application for Leave to Amend and her direction of criticism against the Schedule produced by the respondent at page 81, regardless of how misconceived, was irrelevant in the circumstances, and it did not provide any basis upon which the Tribunal might exercise its granting the discretion in favour of Application for Leave to Amend.(b) The document showed, in its penultimate column, the rate of pay being received in October 2022 by employees of the respondent and benchmarked that pay against that shown in the third column the “Total Job/Omni” comparator market rate.(c) The claimant’s contention, made in her oral submission, that the £12,000 of additional funding, which the respondent chose to distribute to its employees by way of wage rise across the board, would have been more wisely spent in purchasing toilet and cleaning materials for the claimant’s site, provided no basis in fact or in law for any complaint before the Employment Tribunal which it had jurisdiction to consider. Applicable Law Discussion and Disposal The Applicable Law When is an Application to Amend required?
The Applicable Law
[27]A party’s case should be set out in its original pleading (the claimant’s ET1 and the respondent’s ET3), their essential cases.[28]In Chandhok v Tirkey [2015] ICR 527, per Langstaff P as he was then, the EAT said: “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning under the Rules of Procedure 2013, the claim as set out in the ET1”.[29]It follows that if a claimant wishes to argue a claim that is not set out in the ET1, they should make an Application to Amend. Similarly, a respondent needs to apply to amend their ET3 if it wishes to assert a new ground of defence. In principle, it is not permissible to expand the scope of a claim or a response through, for example, Further Particulars, inter party correspondence, a List of Issues or witness statement.[30]A Tribunal can consider an Application to Amend a claim or a response at any stage of the proceedings.[31]In Scottish Opera Limited v Winning UKEAT/0047/09 Underhill P (as he then was) noted that: “Clear and accurate pleadings are of importance in all cases, but particularly in discrimination claims. It is essential that parties seeking permission to amend to introduce such a claim, formulate the proposed amendment in the same degree of detail as would be expected had it formed part of the original claim; and Tribunal should ensure that the terms of any such proposed amendments are clearly recorded.”[32]“While the Rules of Procedure do not prohibit the making of an Oral Application to Amend in the course of a Hearing the above guidance points to the appropriateness of amendments being set out in writing.” Factors taken account of[33]The Tribunal considers an Application to Amend a claim or response, in light of its duty, under the Overriding Objective, which is set out in Rule 2 of the Procedure Rules, to deal with cases fairly and justly and which includes:(a) Ensuring that the parties are on an equal footing(b) Dealing with a case in ways which are proportionate to the complexity and importance of the issues(c) Avoiding unnecessary formality and seeking flexibility in the proceedings(d) Avoiding delay, so far as compatible with proper consideration of the issues(e) Saving expense[34]Two key decisions of the Employment Appeal Tribunal have identified factors which the Tribunal should include in its consideration when determining an Application to Amend:-• In Cocking v Sandhurst (Stationers) Limited [1974] ICR 650, the then President held that regard should be had to all the circumstances of the case and in particular, the Tribunal should “consider any injustice or hardship which may be caused to any of the parties …. if the proposed amendment were allowed, or as the case may be, refused.”• The case of Cocking was followed by the EAT in Selkent Bus Company Limited (trading as Stagecoach Selkent) v Moore [1996] IRLR 661, which held that, when faced with an Application to Amend, a Tribunal must carry out a careful balancing exercise of all the relevant circumstances, and exercise its discretion in a way that is consistent with the requirements of “relevance, reason, justice and fairness, inherent in all judicial discretions.” The EAT considered that the relevant circumstances would include:-• The nature of the amendment,• The applicability of time limits, and,• The timing and manner of the application[35]In Chaudhry v Cerberus Security and Monitoring Services Limited [2022] EAT172, the EAT suggested a two point checklist that Tribunals might find helpful when considering applications to amend:(a) First identify the amendment or amendments sought which should be in writing(b) It is important to clarify the specific amendments that are sought because otherwise it will not be possible to balance the injustice and or hardship of allowing the amendment(s) against that of refusing them. Often there need not be an all or nothing decision because some amendments may be clearly identified and the case for allowing them may be compelling while others may be nebulous and the arguments for permitting them insufficient.(c) Second, in express terms, balance the injustice and or hardship of allowing or refusing the amendment or amendments, taking account of all the relevant factors, including the extent appropriate to those referred to in Selkent The Nature of the Amendment[36]When an Application seeks to make a substantial amendment, such as introducing a new cause of action, the Tribunal will exercise its discretion more carefully having regard to the wording of the Proposed Amendment. New Cause of Action[37]A distinction falls to be made between amendments that:(a) Seek to add or substitute a new claim arising out of the same facts as the original claims; and(b) Those that add a new claim entirely unconnected with the original claim.[38]In order to determine whether the Proposed Amendment is within the scope of an existing claim or constitutes an entirely new claim, the entirety of the claim form should be considered.[39]In some cases the Application will merely be seeking to “relabel” a set of existing facts and may not therefore be as significant an amendment as at first seems; And a Tribunal may be expected to adopt a flexible approach and to grant amendments that, for example, only change the nature of the remedy sought. New Claims arising out of the same fact as the Original Claim[40]Where new claims are very closely related to the claim originally pleaded and depend on facts that were substantially already alleged, that is likely to be a factor in favour of allowing amendment. Determining whether the Amendment seeks to bring a New Cause of Action[41]In Ali v Office of National Statistics [2004] EWCA Civ 1363, the English Court of Appeal held that whether a claim form already contained a specific claim could only be judged by looking at the document as a whole and considering the name given to the claim as well as the factual details accompanying it. If a claim was put very generally for example discrimination, its Particulars would need to be specific enough to enable the employer to be clear about what allegations were being made against them. Time Limits[42]Time limits are relevant if the claimant wishes to add by amendment what is an entirely new complaint. When should the Time Limit Issue be decided?[43]In Patka v British Broadcasting Corporation UKEAT/0190/17, the EAT approved the Tribunal‘s decision to not decide whether the new claim was still in time when determining the amendment application. This followed a shift in the approach taken to amendment applications. The position previously established in the case of Selkent, was that: “If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether the complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions.”[44]In Amey Services Limited and another v Aldridge and others UKEATS/0007/16, the EAT in Scotland held that determining an amendment application is a single stage exercise and an amendment cannot be allowed “subject to time bar issues”. The decision in Amey Services referred to earlier decisions explaining that the reason why consideration of time bar issues was essential when determining an amendment application was because, once an amendment was granted, a respondent was prevented from raising a limitation defence.[45]However, in Galilee v Commissioner of Police of the Metropolis UKEAT/0207/16, the EAT in England reached a different view: namely, that a Tribunal can decide to allow an amendment, subject to limitation points (or, alternatively, it can postpone making a decision on the Application to Amend). This might be necessary in cases that require significant evidence in order to determine time points, such as whether there are any continuing acts or whether time should be extended in discrimination claims. Furthermore, the EAT held that amendments in pleadings in the Tribunal, which introduced new claims or causes of action, take effect for the purposes of limitation at the time permission is given to amend. Galilee is not authority for the proposition that time points cannot ever be considered as part of an amendment application at a Preliminary Hearing; it says, rather, that it is not mandatory to do so, and notes that it may be difficult to do so in certain cases where significant evidence is required. Timing and Manner of the Application[46]Applications to amend the pleadings can be made at any stage in the proceedings and an Application will not generally be refused solely because there has been delay in seeking amendment. The extent of a party’s delay, however, is a factor that the Tribunal may take into account. In general terms the party seeking Leave to Amend will need to show why the Application was not made earlier and why it is now being made.[47]As set out above Judge Maclean, at paragraph 7 of her Note of Output issued following the Closed Preliminary Hearing Case Management Discussion which proceeded before her on the 1st of June stated in relation to the terms of the then Proposed Amendment of 4th May, “I had difficulty understanding the statutory and factual basis of the proposed amendment; and why it was not included in the claim form. Without this information I felt that it was premature to consider the application to amend. I issued an Order seeking this information and to allow the respondent an opportunity to consider the matter.”[48]As at the date of the Open Preliminary Hearing, 11th September 2024 and the passing of a further four months, that situation pertains in relation to the latest iteration of the Proposed Amendment dated 4th July 2023 in terms of which the claimant seeks Leave to Amend. The 4th July 23 iteration does not disclose a basis in fact and or in law, whether in contract or in statute, for any claim, including in particular the matter about which the claimant appears, from its terms as supplemented by her oral submissions, to be complaining. The claimant has had 3 opportunities in the space of some 5 months from the date upon which she first wrote to the Tribunal about the matter, in which to set out in discernible terms the amendment in respect of which she seeks Leave (Proposed Amendment). Judge Maclean took time to set out, in clear and unambiguous detail, the matters which the claimant required to make clear in any amendment which she proposed to bring forward, and she allowed to the claimant a significant additional period of time within which to do so. Following the lodging and intimation of the current iteration of the Proposed Amendment on 4th July 2023, the respondents set out in detail, by email dated 19th July the Grounds of Objection. No attempt has been made to address those by way of adjusting the terms of the Proposed Amendment in the intervening 2½ months. The effect is that the amendment, in its proposed terms, fails to give fair notice of the complaint which the respondents would require to meet in the event that the Tribunal were to grant Leave to Amend in those terms.[49]Against that general observation I turned to consider matters in terms of the Selkent principles.[50]I consider that the respondent’s representative’s submission that the Proposed Amendment, in so far as the same can be discerned from its terms is a “significant” Proposed Amendment in terms of Selkent. The apparent claim which it is said to embody is not disclosed in the initiating Application ET1 which presents complaints of different nature and type. The Proposed Amendment does not give rise to the circumstance of mere relabelling of existing facts nor indeed of the building on a factual matrix already given notice of. Were Leave to be granted it would constitute a new cause of action with new facts, albeit one substantially lacking in specification such as to fail to give fair notice of the case to be met.[51]On any view, the claim or speculative claim given notice of is out of time, both in terms of section 111(2)(a) of the Employment Rights Act 1996, let it be assumed that the claim is intended to be one of unauthorised deduction from wages and in terms of section 123(1)(a) of the Equality Act 2010 let it be assumed, as suggested by the claimant in her oral submission, that it related to sex discrimination. Nor is there before the Tribunal evidence or explanation of any circumstances upon which the Tribunal might exercise its discretion to extend time by holding that it had not been reasonably practicable for the claimant to include the claim within her original claim form or, alternatively, that it would be just and equitable in the circumstances to extend time, respectively in terms of section 111(2)(b) of the Employment Rights Act 1996 or section 123(1)(b) of the Equality Act 2010.[52]While recognising that the claimant is a litigant in person and as such is to be accorded more leeway than parties who enjoy the benefit of professional or commercial representation, I accept the submission of the respondent’s Counsel which was to the effect that that fact, namely party litigant status, does not, of itself, provide a good reason for a failure to include a complaint in the absence of something more. The Employment Tribunal is a jurisdiction designed by Parliament in which parties may access justice without the need for representation whether professional or otherwise. Every day within the United Kingdom many thousands of litigants in person do so while adhering to time limits and giving fair notice to the other party if the case which it is to meet. Litigant in person status does not, of itself, provide a basis for disapplication of the rules or time limits.[53]In relation to the timing and manner of the Application, there has been delay on the part of the claimant in bringing forward the terms of the Proposed Amendment, as now set out in her correspondence of 4th of July. In her correspondence of 4th May 2023 the claimant confirms, in terms, that she was, as at that date if not earlier, aware of the fact that she had omitted to include something in her original complaint which she now wished to include and further, based upon her discussions with ACAS, that she was aware of the fact that she would require, in those circumstances, to seek Leave to Amend. In terms of Judge Maclean’s Orders of 1st June 2023 the claimant was given specific guidance and direction as to the matters which any Proposed Amendment brought forward would require to make clear and, with a view to furthering its duty to ensure that cases are progressed expeditiously, a period of 3 weeks within which to do so. The claimant failed to do so in terms compliant with the Order and, as at today’s date 11th September 2023, the terms of the Proposed Amendment are not compliant with Judge Maclean’s Order of some 4 months ago.[54]Turning to the prospects of success of the apparent claim, I accept the submission of the respondent’s representative that on an Application of the normal rules of construction and according to the words used their normal English language meaning, and while making allowance for the fact that English is not the claimant’s first language, the Proposed Amendment, let it be assumed that the claimant were to establish everything which, in its terms she asserts, fails to disclose any relevant claim in fact and or in law over which the Tribunal has jurisdiction. It is a potential claim, which if admitted by way of amendment, in the terms in which it is given notice of, must necessarily fail. The Tribunal would err in law were it to grant Leave to Amend in a claim which, it is satisfied enjoys no reasonable prospect of success. The Balance of Injustice and Hardship[55]In seeking to balance the relative injustice and hardship resulting to parties in the respective cases of allowance or non allowance of the Amendment, I consider that on the one hand refusing the Application would not cause significant prejudice to the claimant in that she would not be deprived, thereby, of her various existing complaints but rather of a complaint, let it be assumed that it is what it appears to be, which enjoys no reasonable prospect of success. On the other hand, to allow the Amendment would cause significant prejudice to the respondent by reason of:-(a) their being required to respond to a complaint the terms of which fails to give them fair notice of the case which they are to meet,(b) By requiring them to respond to a claim over which the Tribunal would have no jurisdiction, in any event, by reason of time bar.(c) By requiring them to respond, and to incur the cost of responding, to a complaint which enjoys no reasonable prospect of success; and,(d) As the complaint heralded in the Proposed Amendment is a new cause of action based on additional facts, by putting them to the cost of producing evidence from additional witnesses, all of which in turn is likely to lead to a requirement for a longer Merits Hearing than has currently been listed.[56]I do not consider it consistent with the Overriding Objective to allow an Amendment, in September of 2023 which introduces a new factual basis for a complaint, in circumstances where the introduction of such a claim would otherwise be time barred and in which, for reasons not clearly placed before the Tribunal, the claimant had merely omitted to include in the claims of which she gave notice when first presenting her initiating Application in April of 2022.[57]Upon a consideration of all of the relevant circumstances, including those particularly identified in Selkent Bus Company Limited v Moore and on a carrying out of a balancing of the relative prejudice and hardship to parties, I determine that the balance lies in favour of refusing the Amendment and I accordingly do so.[58]The case will now proceed to its already listed Final Hearing in accordance with the previously issued relative Case Management Orders.
Background
[59]In December 2022, the claimant and a male colleague who worked night shifts complained about the reception area being too cold. In January 2023 the claimant logged a complaint about a lack of hot water. She went off sick the following day. The boiler was ultimately replaced during her absence from work.[60]In her email of 25 January 2023, referred to above, the claimant linked the unclean toilet facilities with the lack of hot water which she felt compounded the problem and led to her going off sick. Alleged Sexual Harassment by Colleague on 27 March 2022[61]On 27 March 2022, the claimant attended work to commence a night shift. She arrived at approximately 9.00pm.[62]A dispute arose as to what happened on her arrival. The claimant’s account is that on swiping her pass to enter into the office through a glass door, Mr Shah was standing inside and made eye contact with her. He touched his private parts in front of her, rendering the outline visible through his trousers. The lights were on such that the claimant could see clearly through the door. Mr Shah then left without giving any handover or speaking to the claimant at all. Shortly thereafter, he came back and threw the office phone on the counter.[63]The claimant submitted an email of complaint later that evening, addressed to three managers of the respondent including Mr Williams. She provided her account of what happened. In relation to the alleged incident, she stated that Mr Shah “… holded [sic] his private parts and showed me through his trousers.” She referred to wanting to report the matter to Police Scotland. She did so shortly thereafter.[64]In response to the email, Mr Williams noted that he was sorry that the claimant had had an experience at work which had made her feel distressed. He went on to state that he hoped she felt secure and safe. He advised that there was no need for her to venture outside of the building for the remainder of her shift.[65]The email of complaint led to a grievance procedure. The first stage was chaired by Ms Mackenzie; the second stage by Mr Atherton.[66]The Tribunal viewed CCTV footage of the incident. It showed the moment the claimant entered the building. For the relevant period, Mr Shah had his back to the camera. His hand was seen to move from his side to a position in front of his body. It was not possible to ascertain what he did with his hand when it was in that position. The CCTV otherwise supported the claimant’s contentions and, in particular, the fact that Mr Shah left immediately without any communication or handover. In addition, it supported her contention that he returned shortly thereafter and threw the phone on the desk, leading to what appeared to be a heated exchange between the two individuals.[67]The respondent’s position was that there was no evidence to support the allegation. The Tribunal did not hear from Mr Shah (who is still employed) himself. The respondent instead relied on the evidence of its grievance process to support its position.[68]Ms Mackenzie interviewed the claimant as part of the respondent’s grievance process on 27 April 2022. The claimant repeated her account. She stated that she was in shock and that she felt vulnerable and scared.[69]An interview took place with Mr Shah on 5 May 2022. He denied the allegation of inappropriate touching. He accused the claimant of using foul language to him including the words “bloody bastard”. He referred having spoken to a solicitor as the claimant had stated she was going to report him to the police.[70]Ms Mackenzie did not put Mr Shah’s allegations to the claimant. The first she was aware of them was in preparation for this hearing. She gave evidence to the Tribunal that they were words she would not use and that if she had she would expect to be disciplined.[71]Ms Mackenzie communicated the outcome of the grievance by letter of 20 May 2022. In relation to the allegation in question, she stated that Mr Shah had strongly denied it. She went on to say that there was insufficient evidence to support it.[72]In her evidence before the Tribunal, Ms Mackenzie was asked about the apparent lack of any handover between Mr Shah and the claimant. She put this down to a failure on both sides to behave appropriately. Despite being asked on a number of occasions what she meant by the claimant behaving inappropriately, she was not able to advance any explanation. In relation to the allegation of the phone being thrown onto the desk, Ms Mackenzie characterised this as “placing firmly”. She was not able to explain any meaningful difference between the two.[73]It appeared to the Tribunal that whilst the CCTV evidence on the central allegation was unclear, Ms Mackenzie’s approach was to seek to find an explanation favourable to Mr Shah with a view to supporting her decision on the central allegation.[74]The claimant appealed against the outcome by letter dated 12 June 2022. This was not acknowledged until 4 August 2022 and a meeting took place with the claimant on 10 August 2022. Mr Atherton did not interview Mr Shah and did not put to the claimant Mr Shah’s allegations against her.[75]In her email of appeal, the claimant stated that she was “still in trauma and having nightmares”. She had difficulty sleeping and, as she put it, was “forgetting to eat”. She had feelings of stress at the time.[76]The outcome of the grievance was not communicated until 21 October 2022. In relation to the central allegation, Mr Atherton stated that he could see no evidence of what was alleged.[77]No meaningful explanations were given for the extensive delays in what was, essentially, a simple grievance process.[78]In reaching a conclusion as to whether the allegation was, on the evidence, well founded, the Tribunal had no hesitation in preferring the evidence of the claimant. She was clear and consistent throughout. It was not put to her that she was lying. It was put to her that she might have been mistaken given the reflections on the glass. Her evidence was persuasive that she could see quite clearly.[79]The evidence of the respondent, on the other hand, was second-hand. During the grievance process, which took an excessive amount of time to conclude, there appeared to be no meaningful attempt to analysis or test the evidence of the two individuals. There was a reliance on the absence of definitive proof from the CCTV footage without any assessment of whether the accounts of the two individuals concerned were otherwise supported by the footage. The footage did, in other respects, support the claimant’s position rather than that of Mr Shah. Instead of addressing that point, the participants in the internal grievance process sought to minimise or explain the actions of Mr Shah in ways that were not warranted.[80]The failure to put Mr Shah’s allegations to the claimant was inexplicable and whilst the allegations were not directly used against the claimant, it did appear to have a bearing on Ms Mackenzie’s assessment that there was fault on both sides.[81]Having assessed all of the evidence, therefore, the Tribunal was satisfied that the act alleged by the claimant did take place in the manner she described. It was also satisfied that the act had the adverse effect on the claimant in the ways outlined by her. Issue with Office Chair in October 2022[82]In the late summer of 2022, the claimant raised an issue about the state of the chair in the reception area. The padding was torn and the arm was broken exposing metal such that it caused discomfort. The claimant attributed elbow pain she suffered, in part, to the state of the chair.[83]By email of 30 August 2022, Mr Williams sent an email to a colleague asking for details of “24 hour chairs” that could be obtained. He went on to state: “Need another one for Tannochside as the current one is falling apart”.[84]By email of 5 October 2022, the claimant emailed Mr Williams. She stated that she wanted to remind him about his “promise”. She sent a picture of the chair showing its damage. She stated that it was giving her pelvic and elbow pain. She went on to state: “Could you please order new comfortable chair as we spoke [sic] on your visit.”[85]Mr Williams responded the same day to state that he had requested a quote for a replacement chair.[86]A quote had in fact been provided to Mr Williams on 8 September 2022. In an email to Mr Williams it was stated “the cost to provide a chair for the security team at Tannochside will be £855”.[87]By email of 18 October 2022, Mr Williams emailed Mr Atherton. He forwarded on the quotation and stated that he should have forwarded it weeks ago. He stated that “the 24 hour chair in reception at Tannochside has had its day and needs to go in a skip”. He asked for approval for the replacement. Mr Atherton approved the purchase by email later the same day. The replacement chair was delivered on or around 8 November 2022.[88]There was a conflict in the evidence between the claimant and Mr Williams as to whether the replacement chair was for the claimant alone (with another adequate chair being used by others) or whether one chair was used by all security staff. The claimant’s evidence was that there was a single chair. In his evidence before the Tribunal, Mr Williams stated that there was one (adequate) chair used by other staff and the (broken) chair used only by the claimant. He went on to state that the new chair was a replacement only for the claimant’s use.[89]The Tribunal accepted the claimant’s evidence that there was only ever one chair used by all security staff. That is consistent with all of the emails written by Mr Williams himself which referred to a single chair.[90]He could give no explanation as to why, if there was a perfectly acceptable chair, he would put the respondent’s clients to the cost of purchasing a new one without making that clear. As noted above, the respondent had operational responsibility for facilities at the site, reimbursing any costs to their clients.[91]His only explanation was that everything he stated in his emails – which referred only to a single chair - was incorrect. Unlawful Deduction from Wages[92]By email of 27 January 2023 to Mr Williams, the claimant complained that she had not been paid for a 12 hour shift on 15 December that year. Her gross pay per shift was £124, the net being £84.[93]The claimant accepted that she was subsequently paid £84. She questioned why she was not paid the gross amount. The £84 payment was made in the following tax year and no tax was deducted. The claimant accordingly, received the net amount.[94]The claimant was paid holiday pay based on an average of 54 hours per week. She claimed that this ought to have been based on a 56 hour average. She referred to the fact that the advertisement for the post referred to an average of 56 hours per week. The difference, the claimant said, amounted to approximately £367.[95]The respondent's position, which the Tribunal accepted, was that the claimant’s contracted hours were 54 hours per week.[96]In relation to sick pay, the claimant claims that she should receive full pay in accordance with a company sick pay scheme. She was paid SSP only when absent due to sickness.[97]On commencing employment, the claimant received a statement of main terms of employment. For sick pay (and many other key elements of employment) reference is made to details contained in the “Employee Handbook”. The claimant did not receive any handbook. In a handbook produced by the respondent, said to apply to the claimant, payment for sickness is said to be SSP or company sick pay if there is an express term in the contract of employment.[98]The claimant produced an extract of a document which referred to an entitlement to company sick pay. Having regard to the nature of that document, the Tribunal was satisfied that it was the contract of employment of another employee. The practice of the respondent is to pay enhanced sick pay to salaried staff only, the claimant being hourly paid. Relevant Law Time Limits
Relevant Law
[99]Section 123(1) of EqA provides that a discrimination claim must be submitted before the end of “the period of three months starting with the date of the act to which the complaint relates”.[100]Time will be extended in accordance with the ACAS early conciliation procedures. Where a claim remains out of time, the period to consider a claim can be extended by such period as the Tribunal thinks just and equitable (Section 123(1)(b) and (2)(b) of EqA).[101]Where there is a course of discriminatory conduct, the time limit is referable to the end of the period of continuing conduct (Section 123(3)(a) EqA).[102]The Tribunal has discretion to decide whether acts should be grouped into a continuing act or whether they should be treated as unconnected (Lyfar v Brighton & Sussex University Hospitals Trust [2006] EWCA Civ 584).[103]When considering what is just and equitable, the EAT in British Coal Corporation v Keeble [1997] IRLR 336 and DPP v Marshall [1998] IRLR 494 held that the Tribunal’s discretion requires consideration of factors relevant to prejudice to each party including:• The length and reasons for the delay;• The extent to which the cogency of the evidence is likely to be affected by the delay;• The extent to which the party sued had cooperated with any request for information;• The point at which the claimant acted once they knew of the possibility of taking action; and• The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.[104]The Tribunal may take into account the merits of the claims (Kumari v Greater Manchester Mental Health NHS Foundation Trust [2002] EAT 132), and the emphasis should be on whether the delay has affected the ability of the Tribunal to conduct a fair hearing (Marshall).[105]Direct discrimination arises where a person is treated less favourably than other(s) because of a protected characteristic (Section 13 EqA) including sex.[106]Direct discrimination requires consideration of whether the claimant was treated less favourably than others and whether the reason for that treatment was because of a protected characteristic.[107]The Tribunal may consider firstly whether the claimant received less favourable treatment than the appropriate comparator and then secondly whether the less favourable treatment was on discriminatory grounds. Whether the treatment is detrimental should be assessed by considering if a reasonable worker might consider it to be detrimental in all of the circumstances (Shamoon v The Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).[108]The recent decision of the EAT in Earl Shilton Town Council v Miller [2023] EAT 5 deals with the provision of toilet facilities in the workplace. In the scenario of women being provided with less favourable toilet facilities than men, the EAT held that the less favourable treatment was inherently due to sex such that there was no need to consider the mental processes of the discriminator (following the principle in Regina (Coll) v Secretary of State for Justice [2017] UKSC 40). Harassment[109]Section 26 of EqA deals with harassment and is in the following terms, so far as material: (1) person A harasses another (B) if – (a) A engages in unwanted 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. Burden of Proof[110]Section 136(2) EqA provides that “If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravenes the provision concerned, the court must hold that the contravention occurred.” Subsection (2) does not apply if A shows that A did not contravene the provisions.[111]The burden of proof is considered in two stages. If the claimant does not satisfy the burden of Stage 1 their claim will fail. If the respondent does not satisfy the burden of Stage 2, if required, the claim will succeed (Igen v Wong [2005] ICR 935).[112]It is for the claimant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has treated the claimant less favourably because of a protected characteristic (‘Stage 1’ prima facie case).[113]Having a protected characteristic and there being a difference in treatment is not sufficient (Madarassy v Nomura International Plc [2007] ICR 867). The claimant must also prove a Stage 1 prima facie case regarding the reason for difference in treatment by way of “something more”.[114]The Tribunal may elect to bypass Stage 1 and proceed straight to Stage 2, if it is satisfied that the reason for the less favourable treatment is fully adequate and cogent (Laing v Manchester City Council ICR 1518). Unauthorised Deduction from Wages[115]It is unlawful for an employer to make a deduction from a worker’s wages unless(a) the deduction is required or authorised by statute or a provision in the worker’s contract or(b) the worker has given their prior written consent to the deduction (Section 13 ERA).[116]The relevant definition of wages is contained in Section 27 ERA.[117]Section 13(3) ERA provides: “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 [of ERA] as a deduction made by the employer from the worker’s wages on that occasion”.[118]The term “properly payable” was considered in New Century Cleaning Co Ltd v Church [2000] IRLR 27 at paragraph 62: “For wages to be “properly payable” by an employer, he must be rendered liable to pay, either under the contract of employment or in some other way”. Submissions[119]Both parties made oral submissions which were considered by the Tribunal in reaching its decision. Given that the claimant was unrepresented, Ms Bouffé helpfully agreed to make her submissions first. Relevant aspects of the submissions are noted in the Decision section which follows.[120]The Tribunal first considered the question of time bar. This related to all of the harassment complaints with the exception of the concern about air conditioning/hot water in January 2023. It was accepted that the claim of direct discrimination and the claims for unauthorised deduction from wages were in time.[121]For the remaining harassment claims, the Tribunal first considered whether they amounted to conduct extending over a period, or whether they were unconnected. The Tribunal was satisfied that they were unconnected. They extend over an extensive period, often with significant gaps in between. Each of the alleged acts of harassment was a distinct issue unconnected with the others. The only exception is the complaint about heating/hot water, but that issue arose on three separate occasions ranging from November 2021 to January 2023. Each of those was a separate and distinct complaint.[122]For those reasons, the Tribunal considered it necessary to analyse whether each of the alleged acts of harassment should be allowed late on the basis that it was just and equitable to do so.[123]In relation to the first three allegations, the issue with the locker, the issue with the kitchen board and the comments of Mr Dunn in May 2022, the Tribunal decided that it was not just and equitable to extend the time limit. By the date of the hearing, each of the allegations was historic. Mr Morrall is no longer employed and although Mr Dunn is still employed, the quality of the evidence on these matters is likely to be hampered by the passage of time.[124]Whilst the Tribunal had sympathy with the claimant who did not have professional advice and was not aware of the time limits, she is clearly an employee who was able and willing to raise concerns in the workplace and she did not point to having made efforts to secure professional advice in order to pursue her claims at an earlier stage. Moreover, having heard the evidence, it was clear to the Tribunal that in each of these three acts, there was no apparent indication of the claimant’s sex playing any factor in any of the issues. Whilst the Tribunal accepted that each might have the effect of creating an offensive environment for the claimant, there was nothing at all in her evidence to suggest that sex played any part at all in the issues.[125]On the fourth allegation, the concerns about hot water, the third act is in time. The Tribunal considered whether the earlier instances of deficiencies in the heating system should be construed as a continuing act and determined that they should not. The three instances were separated significantly in time and on each occasion, the issue was resolved. Moreover, as the Tribunal has found in relation to the allegation which is in time, there is no evidence whatsoever that the issues were in any way connected to the claimant’s sex. The issues affected male employees equally.[126]Turning to the allegation of sexual harassment on 27 March 2022, the Tribunal had no hesitation in allowing this claim on the basis that it was just and equitable to consider it late. It is a relatively recent occurrence, having regard to certain of the others, and the respondent was not in any way hampered from giving evidence on the matter. The alleged perpetrator is still employed (albeit he did not give evidence). Those who dealt with the internal grievance processes were able to speak to the issues on the basis of their own contemporaneous records and CCTV footage viewed by them. Moreover, the internal process conducted by the respondent took an inexplicably long time to conclude such that at its conclusion, the claim was only a small number of months later. There was no argument that a fair trial on the issue was not possible and to deny the claimant, who was unrepresented and had no professional advice, the right to have it heard would have been materially prejudicial to her.[127]Finally, the Tribunal considered the last allegation of harassment (as it related to the claimant’s chair). Again, having regard to the claimant’s unrepresented status and the relative proximity of the matter to the hearing and the ability of Mr Williams to give his evidence on the matter, the Tribunal considered it just and equitable to consider that allegation.[128]The Tribunal then assessed the substance of the three harassment allegations which it determined it could consider. Concerns over Heating/Hot Water[129]It was clear to the Tribunal that creating a working environment where there was inadequate heating and/or hot water was offensive. It was clearly unwanted by the claimant and would be unwanted by any reasonable employee.[130]As to whether it related to sex, the Tribunal found no evidence to suggest that it did. The conditions were equally applicable to all employees. They related to deficiencies in the systems at the site rather than any deliberate act on the part of the respondent. The issue was raised not only by the claimant but by at least one male employee. The Tribunal did not, therefore, consider that there was any basis on which to shift the burden of proof on this allegation. If it did, it was satisfied with the respondent’s account that the issue related to the systems in place and that when the complaint was made, the concerns were resolved relatively swiftly and led to a replacement boiler being installed. This claim accordingly fails. Alleged Sexual Harassment on 27 March 2022[131]Having regard to the findings of the Tribunal in relation to this issue, the Tribunal was satisfied that the complaint was well founded. There was a clear act of unwanted conduct (for which the respondent is vicariously liable). It was of a sexual nature and it had the purpose of violating the claimant’s dignity as well as creating an intimidating and offensive environment for her. It clearly had that effect. There is no question that it was reasonable for the conduct to have that effect and the Tribunal did not understand Ms Bouffé to suggest otherwise (assuming the Tribunal found that the act had taken place).[132]The claimant’s concern about the matter was such that she raised the issue with the police. This claim succeeds. Complaint regarding chair[133]The provision of an inadequate chair for employees working 12 hour shifts and sitting for much of the time, was clearly unwanted. It would be expected for any reasonable employee to see the matter in that way. As to whether it related to sex, the Tribunal found no connection whatsoever to the claimant’s sex. It accepted her evidence that a single chair was used by all staff, male and female, and that the provision of an inadequate chair unconnected to the claimant’s sex. There was nothing in the evidence of the claimant to provide any linkage between the unwanted conduct and her sex. It was not, therefore, necessary to shift the burden of proof. Whilst the respondent can be criticised for not providing adequate facilities, and as noted the Tribunal had some concerns about the evidence of Mr Williams on this point, the unwanted conduct had no relationship to sex such that the claim does not succeed.[134]The Tribunal went on to consider the remaining claims (which is accepted are in time).[135]The Tribunal was satisfied, based on its findings, that this claim should succeed. There is abundant evidence that the claimant considered the facilities available to her to be detrimental. Having regard to the circumstances, and the nature of the concerns she had, it is clear that any reasonable person might have that view. The Tribunal went on to consider whether the facilities were less favourable than those available to men. The evidence is clear. There was no facility available to women only. Men had a facility available only to them.[136]The claimant was required to share a facility designated as an accessible toilet. It was available to men (whether disabled or not) and used routinely by them. The state of the facility was routinely such that the claimant required to clean it before use. There is no evidence that men were placed in a similar position. The fact that the lock could be opened from the outside with the use of a coin (and routinely was), gave rise to concerns over privacy. The issues were compounded by the failure regularly to empty the sanitary bin provided. Those were not issues for men using their facility.[137]The inadequacy of the facilities was recognised at an early stage of the claimant’s employment by the respondent itself. At a very early stage, the suggestion of inserting a key lock was made as a means of addressing the concerns. This was recommended at various subsequent points during the claimant’s employment. It was not implemented until February 2023. It was submitted on behalf of the respondent that there was a limit as to what they could do given that it was not their building. As noted, however, the respondent had day-to-day responsibility for the facilities and was able to make necessary changes, the costs of which were reimbursed. Mr Atherton at one point identified the use of portable toliets as a potential solution open to the respondent. This was not actioned either.[138]The steps taken at an earlier stage (including fixing a paper sign with tape) were inadequate and did not resolve the underlying detrimental treatment. The problems persisted for the claimant until she went off sick in January 2023.[139]Ms Bouffé sought to distinguish the circumstances of this case from those in Miller. Whilst the two cases have similarities and differences, looking at the position in the present case in the round, the Tribunal was satisfied that less favourable treatment was clearly established. Following Miller, the Tribunal did not consider it necessary to consider the mental processes of the respondent as the treatment was inherently because of sex. Women were provided with inadequate toilet facilities in comparison with men. The facilities were inadequate for the claimant because she is a woman. Unlawful Deduction from Wages[140]In relation to the unpaid shift, the claimant accepted that she was ultimately paid for this albeit at the net rather than the gross amount. That was apparent from the relevant payslip. It appeared to the Tribunal that the absence of tax flowed from the payment being made in a new tax year. The claimant has, accordingly, suffered no loss.[141]In relation to holiday pay, on the basis of the information before the Tribunal, the claimant’s average hours are 54 per week. Holiday pay was calculated on the basis of that number of hours. The claimant’s suggestion that the calculation ought to have been based on 56 hours was not entirely clear from her evidence. It appeared in part to relate from the fact that the advertisement for the post referred to an average of 56 hours per week. The Tribunal was not, accordingly, satisfied that the claimant had proved any unlawful deduction as a result of this calculation.[142]The final element of the claimant’s unlawful deduction from wages relates to an argument that she ought to have received full pay when sick instead of SSP only. The Tribunal was satisfied with the evidence of the respondent that the claimant was not entitled to enhanced sick pay and this was available only to salaried employees.[143]As an aside, however, the Tribunal was very critical of the inadequate documentation provided to the claimant. The statement of particulars is deficient in a number of respects. Crucial elements of the claimant’s entitlements are said to be contained in an employee handbook. No handbook was given to the claimant. The claimant did not raise a claim for a failure to comply with Section 1 of ERA. Had she done so, an award would have been due to her. The Tribunal was surprised that an organisation of the size and with the resources of the respondent would operate in this way.
Remedy
[144]Having regard to the two claims in which the claimant has been successful, the Tribunal considered the appropriate award. In relation to injury to feelings, the claimant sought a figure of £18,000 (for all of her claims). Ms Bouffé suggested that an award at the lower end of the lowest Vento band – or no award at all - would be appropriate.[145]It was clear to the Tribunal that both relevant issues were serious and caused the claimant significant distress in the ways outlined above. The issues with the toilet facilities subsisted for a long time, and were repeatedly ignored by the respondent. They had a bearing on the claimant becoming absent from work (having been diagnosed with acute stress by her GP) and it is clear from all communications on the inadequate facilities that they were causing her distress and anxiety. The sexual harassment found to have taken place, whilst a one-off, was of a serious nature and had a significant impact on the claimant’s wellbeing for some time. The deficiencies in the respondent’s handling of the related grievance exacerbated the impact on the claimant.[146]Taking the two issues together, the Tribunal determined that an award of FIFTEEN THOUSAND POUNDS (£15,000) for injury to feelings should be made.[147]Interest on this award shall be paid at the rate of eight per cent per annum. This shall run from 14 February 2019, the date on which the first act commenced until the date of this judgment.[148]The claimant also sought compensation for loss of earnings. She claims the difference between the statutory sick pay received and full pay for the period 22 January 2023 to 5 June 2023. Her net pay is £914.80 per fortnight. SSP at the start of her sickness absence was £198.70 per fortnight. The difference per fortnight is, accordingly, £716.10.[149]The respondent’s position was that no loss of earnings was due. Having regard to the reason for the claimant’s initial absence, it is clear that this was in part to the issue over the toilet facilities. It was also in part due to the failure to provide hot water (which the Tribunal has found not to amount to sex discrimination). After the initial three weeks, the claimant’s absence was due to elbow pain. Whilst the claimant attributed this to the deficiencies in the chair provided, and there may be some evidence for that, that issue was again, not an act of sex discrimination. Considering the evidence as a whole, therefore, the Tribunal considered it appropriate to award loss of earnings for a period of two weeks amounting to SEVEN HUNDRED AND SIXTEEN POUNDS AND TEN PENCE (£716.10).[150]Interest at the rate of eight per cent per annum is payable on this award from 7 October 2021, being the midpoint from the date of the discriminatory act and ending on the date of this judgment.[151]The two interest awards follow the guidance in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996.