Alessia PotalivoClaimantClements Europe LimitedRespondent
Before
Employment Judge M A MacleodDate 9 February 2024
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant has not proved that she is, or was at the material time, a disabled person within the meaning of section 6 of the Equality Act 2010, and accordingly her claim of discrimination on the grounds of disability is dismissed.
REASONS
[1]In this case, a Preliminary Hearing was listed to take place on 26 September 2023 by hybrid means, at the Glasgow Tribunals Centre, for the purpose of determining whether the claimant was a disabled person for statutory purposes, and the respondent’s outstanding application for expenses. ETZ4(WR)[2]The Notice of Hearing listing this Hearing was issued to the parties by letter dated 16 August 2023.[3]Prior to the Hearing taking place, the claimant engaged in correspondence with the Tribunal in which she raised a number of issues, including seeking the identity of the Employment Judge allocated to this Hearing. By letter dated 21 September 2023, the Tribunal advised that the Vice-President of Employment Tribunals (Scotland), Employment Judge Eccles, had asked that parties be informed that the Judge who would be conducting the Preliminary Hearing on 26 September would decide whether the application for expenses was more appropriately determined by Judge Whitcombe, who was currently absent from the office.[4]It was clear, then, from that letter that Employment Judge Whitcombe would not hear the Preliminary Hearing on 26 September 2023.[5]This did not prevent the claimant from writing again, on 24 September 2023, again seeking clarification that Employment Judge Whitcombe would not be hearing the Preliminary Hearing, and suggesting that she may not attend the Hearing if he were allocated to it.[6]She also submitted that her letter of 17 September should be allocated priority above the Preliminary Hearing, which she described as having profound implications for the fairness of the Hearing. Further she complained that allowing the respondent to contest her assertion that she was a disabled person in the face of the substantial evidence she had provided constituted an injustice to her, and undermined the principles of fairness and equality in the broader context.[7]On 25 September 2023, the claimant wrote again at 4.30pm, insisting that she be given formal confirmation that the Employment Judge who would be hearing the Preliminary Hearing was not Employment Judge Whitcombe.[8]The claimant’s correspondence was interpreted by the Tribunal as an application for postponement of this Hearing, which was then opposed in the strongest terms by the respondent.[9]At 9.41am on 26 September 2023, the claimant emailed the Tribunal again, making reference to the objection taken by the respondent to her application under Rule 30A(2) of the Employment Tribunals Rules of Procedure 2013. She stated that she had never said that she did not want to discuss her disability with the Tribunal, but took issue with the unfairness of debating it with the respondent.[10]She went on to say that “It is not true that I am simply trying to avoid the PH. I have been seeking attention from the ET up until yesterday, and now another working day has been wasted due to the mishandling of this case. The truth is that I do not believe it would be fair to force me to attend a PH that would not be conducted impartially.”[11]The Preliminary Hearing was due to commence at 12 noon on 26 September 2023, but in the interests of clarity, I directed that a response be sent to the claimant.[12]In the course of that response, it was stated: “It is not clear that the claimant is making an application to postpone this afternoon’s Hearing. The claimant has raised an objection to Employment Judge Whitcombe hearing this case, but that is irrelevant as he is not allocated to this Hearing. She has also suggested that her application of 17 September 2023 should be given priority over the issue of disability status and dealt with at this Hearing. For two reasons, this is rejected: firstly, her application of 17 September seeks a review, and variation or revocation, of earlier case management decisions by Employment Judge Whitcombe, and such an application must be dealt with by the Judge who took those decisions; and secondly, this Hearing has been listed for some time for the specific purpose of addressing the issue of whether the claimant meets the test for disability in section 6 of the Equality Act 2010, and it would be contrary to the overriding objective to alter the basis of the Hearing at such short notice.”[13]The Tribunal went on to explain that the respondent was entitled to attend the Preliminary Hearing and make representations on the evidence led from the claimant in relation to disability status. The Tribunal letter confirmed that this was a standard process in such cases.[14]The letter concluded by making clear that if the claimant were making an application for postponement, that was refused.[15]That letter was sent to the parties at 11.29am by email.[16]At 11.53am, the claimant responded. She expressed her dismay that, had this response reached her by yesterday, she would now be ready to take part in the Preliminary Hearing.[17]She went on: “I want also to stress that allowing the respondents to take actively part in this PH and to object my disability status, contrary to the evidence I have provided, if it’s truly in line with standard procedures, only proves that employment proceedings are tailored for represented parties, thus not predisposed to fair treatment and my mistrust is fully logical and reasonable… Due to the late response from the ET, my participation to the PH is therefore forced to be limited to written evidence submitted so far, including the 3 pages submitted 2 weeks ago and up until the witness statements sent at 3.56 this night.”
The Hearing
[18]Against that background, I noted that the claimant had not attended at 12 noon, and asked the clerk to contact her by telephone. The clerk did so, but reported that there was no reply, and the phone was ringing out. Counsel for the respondent, Mr Aggrey-Orleans, had attended by Cloud Video Platform, and accordingly at approximately 12.15pm I commenced the Hearing in the claimant’s absence. I took into account the terms of her correspondence, the fact that she was due to attend in person at the Hearing, that her address is in Largs, some distance from Glasgow and the fact that the respondent was represented and ready to proceed.[19]I also noted that there was a considerable history to this matter, and that the Preliminary Hearing to determine disability status had been postponed on 6 April 2023, and a further 2 Hearings had had to be rearranged since then.[20]As a result, Mr Aggrey-Orleans submitted that the Hearing should proceed in the claimant’s absence, partly due to the lengthy history of attempts to having this matter addressed by the Tribunal, and partly given the terms of the claimant’s email of 11.53am, in which she indicated that her participation was forced to be limited to the documents and statement contained within the bundle of documents. He submitted that the claimant did not intend to attend the Hearing, and indeed that it was clear that she never intended to do so.[21]I asked Mr Aggrey-Orleans to confirm that he was prepared to proceed on consideration of the papers only, in light of the fact that the claimant’s absence meant he would be unable to challenge that evidence in crossexamination. He asked for a short adjournment to seek instructions on this matter, which was granted to him. On resumption of the Hearing, he confirmed that he had been unable to speak to his instructing solicitor, but wished to proceed on the basis that he believed that those would be his instructions. He also made the point that without the claimant to speak to the statement and records, the weight to be attached to that written evidence must be regarded as limited.[22]Having considered these points, and reviewed the file and correspondence as set out above, I concluded that it was in the interests of justice, and consistent with the overriding objective, to proceed with the Hearing. The claimant chose not to attend this Hearing, for the reasons she set out in her correspondence. It was open to her to attend the Hearing (which was never postponed and therefore scheduled to commence at 12 noon on 26 September) and to make any arguments or objections as she wished at that stage. The Hearing was prepared – both parties had contributed to the production of a Joint Bundle of Documents which was made available to me, and the respondent and Employment Judge were ready and able to proceed at the scheduled start time – and since the claimant chose not to attend, and given the lengthy history behind this matter, it was my view that the Hearing should proceed and a decision could be taken, so as to make progress with these proceedings.[23]It should be noted that no application was made by the respondent to seek dismissal of the claimant’s claim under Rule 47, in circumstances where she did not appear nor was represented at the Hearing. However, taking into account the terms of Rule 47, which I raised at the outset, I noted that it is open to the Tribunal to proceed in the party’s absence, taking into account all information available to it.[24]Accordingly, having reference to the Joint Bundle of Productions, I asked Mr Aggrey-Orleans to present his submissions.[25]Counsel referred to the Order issued by Employment Judge Whitcombe dated 9 February 2023 and issued to parties on 13 February 2023 (57ff), in which the claimant was given very clear guidance as to the information she had to provide in relation to disability status (59). In particular, he pointed out that the Order advised the claimant that she required to present medical records and a concise disability impact statement.[26]The claimant did provide a disability impact statement (96ff) and copies of medical records (99ff).[27]Mr Aggrey-Orleans then referred to the definition contained in section 6 of the Equality Act 2010, and identified what the claimant said are the issues in this case, namely that she suffered at the material time from “visual impairment” (15), and that the respondent had knowledge that she suffered from a disability in the form of visual impairment (18).[28]He made reference to the terms of the disability impact statement, in which the claimant confirmed that she relied upon strong myopia combined with divergent muscle and detached vitreous gel, namely a large Weiss Ring floater in her right, dominant, eye, and insomnia caused by anxiety and depression as a consequence. He maintained that the strong myopia was the part of this statement which related to the particulars of claim, as insomnia and depression or anxiety were not mentioned in her claim.[29]Mr Aggrey-Orleans then observed that the medical records produced largely relate to appointments with an optometrist or optician, rather than a clinical ophthalmologist, and argued that this is not the basis upon which to establish a disability within the meaning of the Act.[30]He made reference to the Statutory Code of Practice for Employment at paragraph 17 (128), in which the wearing of spectacles was not included within the rule about ignoring the effects of treatment, and that in this case, the effect while the person is wearing spectacles or contact lenses should be considered.[31]Going to the medical records, counsel referred to the entries on pages 100 to 111, and noted that they were not significant enough to justify a finding of disability. It should also be noted that there are entries which relate to the period following the end of her employment with the respondent.[32]He concluded his submission on disability by inviting the Tribunal to find that there is no evidence that the claimant suffers, or suffered at the material time, from a visual impairment amounting to a disability within the meaning of the Act, and to find, therefore, that the claimant is not a disabled person within the statutory definition.[33]Mr Aggrey-Orleans also made a short submission on the application for expenses submitted by the respondent on 18 May 2023. Essentially, he set out the position in that application and argued that the claimant had acted unreasonably in the process which led to the postponement of the Hearing on 6 April 2023.[34]Finally, he proposed that if the Tribunal were to find that the claimant is not a disabled person, that would leave only an unlawful deductions from wages claim, encompassing holiday, notice and other payments; and that it would be helpful if the Tribunal were to direct the claimant to set out the amounts sought and the basis upon which she seeks those amounts. The Claimant’s Position[35]In this case, the claimant did not attend the Hearing, and therefore was not available to give evidence under oath or affirmation, nor to be crossexamined. While counsel for the respondent observed that this would affect the weight to be attached to the evidence presented by the claimant in written form, he very fairly made a written submission taking into account that evidence to the extent that he was able to.[36]I consider that it is appropriate and in the interests of justice to take into account the written evidence presented by the claimant in determining this issue, notwithstanding that the claimant did not attend the Hearing.[37]I make no finding, incidentally, as to whether or not the claimant ever intended to attend this Hearing, simply because I have no evidence upon which to base such a finding. The respondent clearly suspects that the claimant did not intend to attend, but there is no factual basis upon which a finding can be made.[38]Before analysing the evidence, it is critical, as Mr Aggrey-Orleans pointed out, to establish what condition or conditions the claimant seeks to rely upon in her claim to the Tribunal.[39]In the paper apart to her ET1, the claimant stated (15): “They [her former employer] had also been made aware that I suffer from visual impairment and that I would find it difficult to follow the training via Teams by reading someone else’s screen with normal settings.”[40]She went on to complain (16) that the way in which she had been treated by her line manager had made her feel “really uncomfortable and anxious from the very beginning, and that I suffered mental stress as a result.” She also indicated that she “suffered another breakdown” at a later stage.[41]I accept the respondent’s submission that her claim relies upon visual impairment as a disability, and that the references to mental stress are related to the effects upon her of the allegedly unlawful treatment to which she alleges she was subjected.[42]Following an Order issued by the Tribunal, the claimant submitted further and better particulars of her claim (77ff). She did not depart from her assertion that her disability related to her visual impairment. She did set out greater details of her impairment and its effect upon her ability to carry out normal day-to-day activities, as follows: “I take much longer to read, so I take longer to understand and I get easily tired from reading Furthermore the strong annoyance caused by the white veil in the centre of my visual field is truly mentally distractive. It takes much mental energy away from me I develop very frequent headaches, so With or without headaches The effort I must make to see leads me to develop mental tiredness which means diminished lucidity and Increased mental confusion which prevent me from easily fixing and retaining what I have learned, and I also take longer to memorise (any concept of my daily life, also those which are not work related). Therefore, I also make mistakes of any kind. They could be linked to conceptual learning or practical. As a further result: I develop anxiety and depression. These issues were already present in my life at intermittent phases because of my visual problems. This means that being through this impairment, especially when not understood or accepted, being faced with human selfishness and shallow attitude to my problems, can cause strong anxiety or depression which in turn prevent me from sleeping. Insomnia, as a further result of all the above, further worsens my vision in the morning and makes me even more mentally tired and confused. As a consequence, mistakes (theoretical and practical) are more frequent. I also find it difficult to control my feelings. The impact on my mental wellbeing is not trivial as well as this reflects not only on my more frequent mistakes but also in the reduced quality of human relationships…”[43]Again, the further and better particulars focused upon the visual impairment from which the claimant suffers, and the consequences which arose from that impairment.[44]Accordingly, the claimant offered to prove that she suffers, and suffered at the material time, from a visual impairment amounting to a disability under section 6(1) of the 2010 Act.[45]Next, the Tribunal requires to consider the evidence which she presented, in written form, in support of her pleadings.[46]The claimant submitted a disability impact statement (96ff) dated 9 March 2023.[47]She stated therein: “The disabilities I rely upon for the purposes of my claim are Strong Myopia combined with divergent muscle and detached vitreous gel, namely a large Weiss Ring Floater in my right (and dominant eye), and insomnia caused by Anxiety/Depression as a consequence. Strong myopia started more than 10 years ago. The detached vitreous gel occurred in November 2019 and was diagnosed in December 2019. Anxiety and depression are effects of the great difficulties posed in my daily life by my visual impairment and the shallow and selfish attitude I had to withstand from other people, especially at work… The immediate impact of my strong myopia has always been my difficulty in reading text on the paper as it was always too small for me. This has not always been fixed by glasses as I need three different set of lenses based on my needs and the prescription for these change very frequently, so very frequently I end up with visual issues even whilst wearing glasses. Working with electronic devices, and therefore with Visual Display Units is the activity which takes, without any exaggeration, a minimum of 80% of my daily life, when not more… Now, since November 2019, when I am in front of a source of light or light emitting device like a PC display, the visual field of the right eye is dramatically affected. I have a constant and wide white strip (it seems like made of a thick white veil) in the very centre of the visual field. This prevents me from correctly seeing what is in front of me on the display and cannot be corrected by glasses.”[48]The claimant went on to explain that it takes her much longer to read, longer to understand and she gets easily tired from reading. (She does not make a comparison between herself and another person when she says it takes much longer; that is, she does not say much longer than whom it takes her to read).[49]She complained that she is mentally distracted by the white veil in the centre of her visual field; that she develops frequent headaches and mental tiredness, with diminished lucidity and increased mental confusion. As a result, she says, she makes mistakes of any kind.[50]She then asserted that the difficulties she suffers with her visual field cause her to suffer from anxiety and depression, and that she finds it difficult to control her feelings.[51]In addition to the disability impact statement, the claimant submitted records relating to the treatment of her eye conditions.[52]She produced a letter from her GP, Dr Telfer, of the Gilmore Medical Practice, dated 19 June 2014 (100), which stated: “I can confirm that Alessia Potalivo of [address] has been having problems with her eyes which she has been attending our surgery for. It may be of benefit to Alessia if she did not spend as much time in front of a computer as this exacerbates her symptoms.”[53]Subsequently, Dr Gordon Scott of the same practice wrote a letter to whom it may concern dated 7 October 2014 (101), in which he said: “I am writing in support of my above patient. She has an ongoing visual problem which makes it difficult to see small computer screens and there are problems having her lenses corrected appropriately to prevent this issue. Her symptoms would be helped by a larger or special screen to help her in the workplace.”[54]Dr Scott wrote to Sykes Global Services Ltd in relation to the claimant on 3 March 2015 (102), setting out a longer and more detailed medical report.[55]Within that report, he made the following observations:• “Ms Potalivo has Type 2 Diabetes and uses Metformin for this. This is mainly in the form of insulin resistance and can cause weakness in the mornings and make her mentally sluggish. It can also cause insomnia at night. She also suffers from allergic rhinitis and allergic blepharitis, which will cause eye and nose problems, and this is currently being assessed and investigated. This may cause itchy irritated eyes and nose. She has also recently been found to be slightly anaemic and we are treating this. She has long-term problems with insomnia which may well cause fatigue early in the day in particular…• She also has some problems with her vision, which she sees opticians about, and they are unable to really correct this fully…• She has no mental impairment. She has low back pain and irritated eyes and nose, Type II diabetes and insomnia…• She does describe intermittently irritated eyes and nose which is a relatively minor problem…• I do not think that the adverse effects are all substantial. Insomnia is substantial. Other problems are minor…• Her current health problems are long term, they may be indefinite.• Ms Potalivo is currently receiving anti-allergy eye drops…”[56]On 7 January 2021, Elaine Thomson, an optometrist with Vision Express, Frederick Street, Edinburgh, wrote a short letter to whom it may concern (105): “Miss Potalivo has attended our practice on two occasions over the past month with new onset floaters. These affect her right eye and are quite central in position. She is finding these floaters are affecting her ability to read her computer screen and means that her work is taking her longer to complete.”[57]On the same date, Ms Thomson carried out an eye examination, and reported that her next examination was advised in 1 year, that she was not referred and that she required a new prescription (106).[58]On 9 June 2022, the claimant was seen by an optician, Hannah Pugh, in Largs. A new prescription was reported to have been issued to her. The comments section of the report by Ms Pugh confirmed that her next appointment would be 9 June 2023, and “eyes healthy” (107)[59]Similarly, the claimant was examined by an optician, Lynn Maclaren, in Largs on 9 September 2022. The report (108) said that the next examination would be on 9 September 2023. It confirmed that “Reassured healthy. NO DR. Discussed options re RE floater.”[60]A further report produced on examination by an optician in the same practice, Gillian McDonald, on 2 March 2023, simply commented that her next examination would be on 9 September 2024. (109)[61]Ms McDonald provided a letter dated 6 March 2023 based on that examination (110). Discussion and Decision 1. Was the claimant, at the material time, a person disabled within the meaning of the Equality Act 2010?[62]The definition of disability is set out as follows in section 6(1) of the 2010 Act: “A person (P) has a disability if— (a)P has a physical or mental impairment, and (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”[63]It is necessary, in determining whether or not the claimant meets, or met, this definition, to consider the available evidence before the Tribunal.[64]The disability which the claimant seeks to rely upon is that of “visual impairment”.[65]There is no doubt that the claimant has difficulties with her eyesight. She has produced evidence demonstrating that she has attended at her optician or ophthalmologist on a number of occasions from 2014. She has also completed a disability impact statement in which she stresses the difficulties which she suffers with her eyesight and the impact upon her day to day activities which that impairment has.[66]As Mr Aggrey-Orleans pointed out, the Statutory Code of Practice for Employment must be considered in terms of paragraph 17 (128), in which the wearing of spectacles was not included within the rule about ignoring the effects of treatment, and that in this case, the effect while the person is wearing spectacles or contact lenses should be considered.[67]Taking the definition of disability in section 6, it is necessary to consider the different aspects of that definition in order to understand whether or not the claimant’s condition is such as to satisfy it.[68]The claimant’s condition is a physical impairment. It is clear from the documentation that she relies upon her visual impairment as a disability, and that while there may have been consequences for her mental health in relation to these matters, it is the physical impairment which requires to be considered.[69]Does the impairment have a substantial adverse impact upon the claimant’s ability to carry out normal day to day activities? Substantial must be taken to mean more than trivial. The reports from the claimant’s GP are, perhaps understandably, slightly vague as to the particular problem or problem from which the claimant’s suffered in 2014, describing her as having an “ongoing visual problem which makes it difficult for her to see small computer screens” (101), or “problems with her eyes” (100). The most detailed report, dated 3 March 2015, confirmed that she “has some problems with her vision, which she sees opticians about, and they are unable to really correct this fully” (102); and that she was currently receiving anti-allergy eye drops” (103). However, against that, Dr Scott states that “I do not think that the adverse effects are all substantial. Insomnia is substantial. Other problems are minor.” I take that statement to include visual problems among those defined as minor.[70]Thereafter, her interactions were all with opticians. The only issue arising from those records relates to “floaters”, which are understood to refer to a large white strip in front of the vision of her right eye (according to the claimant -110), which was adding to her eyestrain symptoms. In 2022 and 2023 it appears that the claimant was advised about the risks of potential surgery to correct this problem, but there is no evidence that she was referred to a specialist ophthalmic surgeon to act upon the possibility of surgery. In the claimant’s absence, there is no basis, therefore, upon which I can conclude that the problem was sufficiently significant to require surgery to be, at least, considered.[71]Some general literature was presented to the Tribunal about floaters in the eye but there was nothing specific to the claimant other than what was contained in the opticians’ correspondence.[72]In my judgment, the claimant has failed to prove that her visual impairment is substantial. It is clear that she suffers from some difficulties in seeing print on a small screen, and that opticians have found it difficult to identify corrective lenses with much effect. However, the claimant’s own statement does not suggest that this has a substantial effect upon her ability to carry out normal day to day activities. There is no doubt that it has some effect, but given that she has spectacles (a corrective device which cannot be taken into account), the extent to which it affects her is limited and not, in my judgment, substantial. While the effect is adverse, and clearly long-term, it does not amount to a disability within the meaning of the 2010 Act.[73]The other conditions to which the claimant refers are not relied upon as disabilities.[74]It is therefore my conclusion that the claimant does not meet the definition of disability within section 6 of the 2010 Act, and accordingly her claim for disability discrimination must be dismissed. 2. Should the Tribunal deal with the respondent’s application for expenses at this Hearing?[75]Having reflected on this matter, it appears to me that there is a risk that if I were to intervene in the application for expenses, which relates to the postponement of a previous Hearing before another Employment Judge, I may take into account factors which are not relevant, or may omit to consider factors which are relevant. I am not aware of the full background of the postponement of that Hearing, not having taken the decision nor been the Employment Judge responsible for it.[76]Accordingly, I would refer that matter back to the case-managing Employment Judge for his decision, appreciating that he was not the Employment Judge for that Hearing either. He is, however, in the appropriate position to review the matter from the perspective of having managed the case throughout. 3. Should further case management orders be issued?[77]Given that only payments claims remain, and that the respondent considers those claims to lack specification, again it seems to me appropriate that I refer this matter back to the case management Employment Judge for him to take forward. No Orders are therefore issued at this stage.
The Hearing
[1]The claimant presented a claim of the disability discrimination and a number of monetary claims on 13 December 2022. The disability discrimination claim was dismissed on 16 October 2023, but the monetary claims remain before the tribunal, and are disputed. This was a hearing to consider these claims.[2]The claimant’s claims, as specified in the response to an unless order are for the following:(a) Two months' salary (final salary +lieu of notice): (£26,000/12) X2 = £4,333.3332.(b) 8,5 days unpaid leave (calculated based on 52 working weeks (per year): ((£26,000/52)/5) X 8.5 = £8503(c) Four months of unpaid pension scheme (from start of employment and calculated at 1 0%of the salary): (£26,000/12) X 10% X4 = £866.6664.(d) Other benefits (e.g. health and dental): £5005.(e) Taxes to be paid by the Respondent.[3]The respondent’s position is that no monies are due. They accept that they have made a deduction of £1,167.36 in terms of Section 13 of the Employment Rights Act 1996 (the ERA) from monies due to the claimant, however their position is that they were entitled to make this deduction under Section 13 (2) (a) of the ERA on the basis of a clause in the claimant’s contract of employment. It is their position that they were entitled to make this deduction, as the claimant has refused to return a laptop belonging to them, which was supplied to her for the purposes of her employment with them.[4]The issue for the tribunal was whether any of the sums claimed by the claimant were due to be paid to her and had not been paid. This included consideration of whether the respondents were entitled to rely upon the claimant’s contract of employment in terms of Section 15 (1) (a) of the ERA.[5]An adjustment was made for the claimant to the start time of the hearing, which commenced at 12 noon. The hearing was conducted by CVP. The claimant appeared on her own behalf, and the respondents were represented by Mr Aggray–Orleans, Counsel Both sides lodged documentary productions.[7]The claimant gave evidence on her own behalf, and for the respondents, evidence was given by Ms Rodrigues, head of Global HR. Findings in fact[8]From the evidence before it the tribunal made the following findings in fact.[9]The claimant commenced her employment with the respondents on 25 July 2022, following interview. The claimant was provided with a contract of employment, which she signed. She was also providing with copies of policies and procedures which the respondent applied to work issues. She attended a work orientation at or around the time of the commencement of employment during which she was provided with information about her employment, including some aspects of her terms and conditions.[10]The claimant’s salary was £26,000 gross and per annum. Her salary was paid monthly in arrears on or around the end of each calendar month. It was agreed that the claimants daily gross rate of pay was £100.[11]The claimant’s contract of employment provided at Clause 8 - Other Benefits: 8.1 You are eligible to participate in the company private health insurance scheme, dental insurance, group income protection scheme and life insurance in place at the time of entering into this agreement. You will also be eligible to participate in the Company pension scheme upon completing a successful assessment under the Auto Enrolment and the Workplace Pension Scheme guidelines. We reserve the right to discontinue or amend the schemes at our discretion.[12]The workplace pension scheme guidelines provided that auto enrolment took place after three months of employment. The orientation information which the claimant received stated that employees became eligible for the pension scheme 90 days after the commencement of the employment.[13]The claimant’s contract provided at Clause 9 Holidays: 9.1. Holiday year runs from first December to 31st of January. 9.2 In addition to public holidays, you will be entitled to 24 days in each complete holiday year.[14]The respondents Employee Handbook, which the claimant received, provided in respect of annual leave that employees were entitled to 24 days annual leave excluding public holidays. The handbook referred employees to the respondent’s annual leave policy.[15]The respondents Worldwide Annual Leave policy (UK) provided that the London office will be closed on eight bank holidays.[16]The information provided to the claimant in orientation, which she produced at the hearing, stated holiday entitlement was 24 days annual leave.[17]The orientation information under Leave Programmes provided under the heading Mental Health Day: “3 Mental Health Days are given to all employees effective 1st January of every year and must be used by 31st December of that year.• If you start part-way through the year you will receive a prorated amount of Mental Health Days.• You must receive approval in advance from your manager for all timeoff requests.• Mental Health Days cannot be rolled over into the following year.” There was a three month probationary period.[19]Clause 12 of the contract of employment provided: 12.1.2 (b) the employer, may if your performance is considered unsatisfactory give you not less than one months’ notice in writing to terminate your employment.[20]Clause 14 of the contract provided: Termination of employment 14.6 Instead of requiring you to work during your notice period (or any remaining part of it) we may at our discretion choose to terminate your employment immediately and pay a sum equivalent to your gross basic salary only (less appropriate PAYE deductions) in lieu of your notice period (or the remaining part of it).[21]Clause 15 of the contract provided: Return of property and passwords: 15.1 Upon termination of your employment you must: (a) Immediately return all items of our property which you have in our possession in connection with your employment (including any mobile phone, computer, memory sticks, credit cards, documents or copies of documents);and ….. 15.3 We may withhold payment of your final salary or any other payment due or outstanding upon termination of your employment until you have fully complied with your obligations to return property and reveal passwords.[22]The claimant was provided with a laptop to carry out her work. The cost of this to respondents was £1,145.33.[23]The claimant applied for a number of benefits during her employment including Cinga (dental insurance); Medicash; and Unum (life insurance).[24]The claimant was not auto enrolled for a pension due to her length of service.[25]The claimant was paid her salary for the potion of July from 25 July and August on 28 August. A deduction was made from this for repayment of a student loan of £88. The respondents considered they were under an obligation to make this deduction under the regulatory regime in place.[26]The claimant was absent from work due to ill health on 26 August 2022. Her application for a mental health day was declined for that day, but she was paid for sick leave which was payment in full.[27]The claimant’ was on annual leave on 29 August, which was a bank holiday.[28]The claimant’s application for one day’s annual leave in September was approved.[29]The claimant’s application for a mental health day on 30 August was declined. She was unfit for work on that day and was paid for sick leave, which was payment in full.[30]The claimant was unfit for work from 1 September up until the date of the termination of her employment which was on 16 September 2023.[31]In terms of the respondents’ policies, she was entitled to 35 days full pay, to include SSP in respect of sickness absence.[32]The respondents terminated the claimant’s contract with immediate effect on 16 September. They did so in exercise of clause 14.6 of the contract. On the termination of her contract of employment, the respondents requested the claimant return the laptop they had supplied and other equipment, being a headset the cost of which was £22.[33]The claimant refused to return the laptop. She denied ever having received a headset. The respondents therefore withheld the claimant’s pay in lieu of notice, and payment of outstanding wages and holiday pay.[34]The claimant has refused to return the laptop to the respondents on the basis that it contains evidence which she will use in court. The laptop has still not been returned.[35]On 10 February 2023, the respondents paid the claimant £1,796.61. The basis of their calculation is set out on a pay slip produced at page 101.[36]This payment represented the following:• Wages from 1 to 16 September, to include sick pay of £1200, less tax and NI;• One month’s pay in lieu of notice of £2,166.67 (£26,000 /12) less tax and NI; and• Three days holiday leave of £300 less tax and NI.[37]This totalled £3,666.67. From this amount, the respondents deducted £1,167.36 which represented the cost of the laptop and a headset. The cost of the headset was £22.[38]The respondents no longer insist that the claimant was supplied with a headset.[39]The respondents also made a deduction of £73 for a student loan. Note on Evidence[40]Although there was considerable argument over each aspect of the claim, there were not many significant disputes on the evidence as to the relevant facts.[41]The most contentious issue of fact related to holiday leave which the claimant had taken, and her entitlement to annual leave in terms of her contract of employment.[42]It was at the claimant’s position that she was entitled to 24 days leave plus 10 days bank holiday. She suggested that this was on the basis that there were 10 days bank holidays in the UK in 2022.[43]In his submission and cross examination Mr Aggrey- Orleans cited the terms of the contract which made provision for 24 days annual leave. It was however the evidence of Ms Rodriguez that employees were entitled to bank holidays in addition to 24 days leave.[44]For reasons which are dealt with more fully below, the Tribunal considered the terms of the contract of employment which provides “in addition to public holidays, you will be entitled to 24 days in each complete holiday year” and the terms of the Worldwide Annual leave policy (UK) , which provided that the London office will be closed on eight bank holidays, and was satisfied that the entitlement was to 24 weeks + 8 bank holidays. The tribunal was not persuaded that there was a contractual entitlement to 10 bank holidays as suggested by the claimant on basis that that was number bank holidays in 2022. There was nothing beyond the claimant’s assertion that this was the case to support such a conclusion.[45]The second area of dispute arose in connection with the number of leave days the claimant had taken from the commencement of employment and to its termination.[46]The respondents produced records of the leave applied for by the claimant, which the respondents had granted or declined. The claimant said that she could not trust the respondents’ records, and her position was that she had taken no annual leave from the date of commencement of employment until its termination.[47]The respondents’ records, which were spoken to by Miss Rodriguez, noted that leave had been taken on 29 August, which was a bank holiday, and that approval had been given for one days leave in September. On balance the tribunal was satisfied that these records were correct. The Tribunal was satisfied that that bank holidays were allocated as leave in terms of the respondents leave policy, and the fact that the claimant was marked as being on leave on a bank holiday date, tended to suggest that the respondents’ records of leave taken were more accurate than the claimant’s recollection. Submissions[48]Both parties made oral submissions. Claimant’s submissions[49]In summary it was the claimant’s position that she was entitled to all of the sums claimed. She did not accept that the respondents were entitled to withhold payment of all monies due to her pending the return of the laptop. She was not obliged to return the laptop as it contained evidence essential to her position. In any event the laptop was not worth the amount the respondents had subtracted from her final payment. She estimated that it was worth at most between £360 and £650.[50]The claimant submitted she was due to be paid in respect of mental health days.[51]She submitted she was entitled to compensation for benefits including dental benefits which she was not able to use because of the respondents had terminated the employment. She also submitted she was entitled to be compensated for pension payments which she had not received as she was not enrolled into the respondent’s pension scheme.[52]The claimant sought to add to that claim the amounts which had been deducted by way of deductions for repayment of a student loan. Her submission was the respondents were not entitled to make these deductions as she had not achieved the requisite income threshold.[53]Lastly the claimant sought £1000 as compensation for the financial hardship, and work which the respondent’s actions have occasioned her. Respondent’s submissions[54]Mr Aggrey–Orleans accepted that the respondents had made a deduction from the claimant’s wages under Section 13 of the ERA. His position was that they were entitled to do so in terms of the claimant’s contract of employment which she had signed. The respondents were entitled to withhold the final payment due to the claimant. They had exercised discretion and paid her final payment less the cost of the laptop. The laptop was the respondent’s property, and the claimant was not entitled to retain it. He emphasised that if the claimant returned the laptop the respondents would pay her the sums which they had deducted from the final pay. He also advised that the respondents are no longer insisting on the return of a headset, and he advised that that £22 of the £1167.36 reflected the cost of this. Consideration Pay in respect of holiday leave accrued but not taken upon the termination of employment.
Consideration
[55]The tribunal began by considering the claimant’s entitlement to payment in respect of annual leave accrued but not taken upon the termination of employment.[56]Regulation 14 of the Working Time Regulations 2014 (the Regulations) provides: 14.—(1) This regulation applies where— (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date”), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13(1) differs from the proportion of the leave year which has expired.(2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3).[57]It is the claimant’s position that she is due to be paid 8.5 days in lieu of annual leave. The tribunal understands she assessed this on the basis of 10 day public holidays, three mental health days, and a continuing entitlement to accrue annual leave entitlement after her dismissal for a period of 1 month.[58]The Tribunal was satisfied that the respondents were entitled in terms of the claimant’s contact to summarily dismiss her and give her a payment in lieu of her notice period, and that they did that, by dismissing her summarily on the 16 of September 2022. That was that date upon which the claimant’s employment came to an end and she did not continue to accrue entitlement to holiday leave, or other benefits, after that date.[59]The Tribunal were satisfied that the claimant was contractually entitled to 32 days leave per annum, being 24 days plus 8 days which were allocated as public holidays. It reached this conclusion on the basis of the terms of the contract of employment which made reference to 24 days in addition to public holidays. It is clear from this term that it is intended that the employee’s contractual entitlement is not restricted to 24 days. Albeit the Tribunal was not taken to any evidence to demonstrate t that the employee handbook or the annual leave policy was incorporated into the contract of employment and had contractual status, the tribunal was satisfied that it was entitled to imply into the contract an entitlement to 8 days public holiday. It did so on the basis of the conduct of the parties firstly in that the respondent’s Annual leave Policy provided for eight days annual leave which were taken as public holiday. Secondly it was the evidence of Ms Rodriguez that it was the respondents’ practice to give employees paid public holidays in addition to the 24 days leave specified in the contract term.[60]The tribunal did not conclude that the claimant had a contractual entitlement to 3 days leave as mental health days, which could properly be treated as a leave for the purposes of assessing payment in lieu of leave entitlement accrued but not taken on the termination of employment for the purposes of Regulation 14. The Tribunal was not taken to any written documentation that made provision for to Mental Health Days other than information provided to the claimant at orientation, The tribunal accepted Ms Rodriguiz’ evidence that mental health days were not recognised by the respondents as leave for the purposes of assessing payments due for leave not taken upon the termination of employment, and that the mental health days were a bonus or benefit for those who are working. There was no evidence upon which to imply a term into the contract of employment that the claimant was entitled upon the termination of her employment for payment for mental health days which she had not taken.[61]The claimant worked 8 weeks out of 52. She was entitled to 32 days leave in the period from 1 January to 31 December. She had taken 2 days leave prior to the termination of her employment.[62]Applying the provisions of Regulation 14, the claimant’s annual leave entitlement is calculated as follows:• (32 days x 8/52) = 4.9 days – 2 days leave taken.[63]The claimant is therefore entitled to be paid for three days in respect of leave accrued but not taken upon the termination of her employment. It was agreed that the gross daily rate of pay was £100 per day. This is the sum, less tax and NI which the respondents assessed as being due to the claimant in respect of annual leave accrued but not taken on the termination of her employment, as shown on the payslip at P101. Pension scheme[64]There was no dispute that the claimant was not enrolled into the respondents’ pension scheme. The tribunal was not satisfied that claimant had a contractual right to enrolment into the pension scheme, which the respondents had breached, giving rise to a damages claim equivalent to 4 months unpaid of unpaid pension contributions of 10% of the claimant’s salary, as she claimed.[65]The contract term provided: “You will also be eligible to participate in the Company pension scheme upon completing a successful assessment under the Auto Enrolment and the Workplace Pension Scheme guidelines.”[66]The claimant had not completed a successful assessment under the Auto Enrolment and the Workplace Pension Scheme, and therefore the obligation to enrol the claimant into the pension scheme had not been triggered.[67]The Tribunal was also satisfied that the Auto Enrolment and the Workplace Pension Scheme guidelines, referred to in the contract term, provided that auto enrolment took place after three months of employment. The claimant had not worked for length of time, which explained why auto enrolment did not take place. Other benefits[68]The claimant claimed an entitlement to other benefits, citing in particular, dental costs. She appeared to make two arguments in connection with this. The first was that she was entitled to benefits during the period of notice, and secondly, she was deprived of access to benefits, as she did not have time to utilise then, because the respondents brought her employment to an end.[69]The claimant would not be entitled to benefit from any of the workplace benefits which she enjoyed in employment after her employment came to an end. The fact that the claimant’s employment was of short duration and she did not access benefits during that time does not impact on this.[70]The tribunal was satisfied that in terms of the claimant’s contract of employment, the respondents were entitled to bring her employment to an end summarily, on payment of a sum in lieu of notice. That sum was specified to be one month’s basic salary in terms of clause 14.6 of a contract of employment. The claimant’s employment came to an end on 16 September 2022. She was therefore not entitled to damages in respect of loss of benefits for a notice period beyond that date. Even if the claimant had been so entitled, there was no evidence before the tribunal to allow them to assess the value of these. Taxes[71]Section 13 (1) (a) of the ERA permits deductions if they are authorised to be made by virtue of a statutory provision. This covers payment of Tax and PAYE.[72]The claimant did not advance any basis upon which the Tribunal could conclude that sums deducted from the claimant’s earnings in respect of tax or national insurance were unauthorised.[73]The claimant also made submissions to the effect that the respondent should not have deducted amounts in respect of a student loan. She said in submissions that they were not entitled to do this as she had not reached the requisite income threshold. This was a claim which was not before the tribunal, and of which the respondents had no notice. There was no amendment procedure allowing the claim. The prejudice to the respondents in considering such a claim was considerable, as they had no opportunity to investigate or prepare the defence to it. No explanation was advanced as to why the claim was introduced the course of the hearing. The claimant continues to be able to insist upon the other elements of her claim, and taking these factors into account, and the prejudice to the parties in allowing or refusing to consider the claim, the Tribunal was satisfied that the claim should not be permitted to proceed at this stage. Claim for two months’ salary[74]The claimant’s claim was in respect of two months’ salary. She assesses this at £4,333.33 gross. This, she said, represented her final salary, plus one month’s pay in lieu of notice.[75]The tribunal was satisfied that the claimant was entitled to be paid her salary for the days which she worked in September. That was for 1 September to 16 September. It was agreed that the claimant’s gross rate of pay was £100 per day. The period from 1st to 16th September comprised 12 working days. She was therefore entitled to £1200 pay subject to tax and NI for that period.[76]This is the amount which the respondents assessed as the claimant’s entitlement to pay for that period, as per the respondent’s payslip at 101.[77]There is no basis upon which to conclude that the claimant is due payment of salary for any period beyond 16 September.[78]The claimant is however also due one month’s basic net pay in lieu of notice. There is no dispute between the parties that one month’s basic pay is £2,166.67 gross and that the claimant was entitled to this as payment in lieu of notice. Unauthorised deduction from wages[79]The respondents rely on the provisions of clause 15 of the contract, which they submit authorised them under section 13 (1) (a) of the ERA to make the deduction which they made.[80]The Tribunal was satisfied that the claimant’s entitlement to payment was for the following elements:• Holiday pay £300 subject to tax and NI;• Wages for the period from 1 to 126 September 2022 of £1200, subject to tax and NI; and• One month’s pay in lieu of notice £ 2166,67 subject to tax and NI.[81]It was also satisfied that the respondents had paid the claimant this amount in February 2023, less the sum of £1,167.36, which represented the cost of their laptop and a headset.[82]The issue for the tribunal was whether they were entitled to make that deduction. The respondent has the burden of proof on this point.[83]Section 13 of the ERA provides:(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or …[84]Section 15 pf the ERA provides:(1) An employer shall not receive a payment from a worker employed by him unless— (a) the payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the payment.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer receiving the payment in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.[85]The Tribunal considered whether the clause in the claimant’s contract relied upon, authorised the deduction which had been made under Section 13 (1) (a).[86]The contract term at clause 15 is drafted in very wide terms. Clause 15 (1) provides that: “upon termination of employment and employee must (a) Immediately return all items of our property which you have in our possession in connection with your employment (including any mobile phone, computer, memory sticks, credit cards, documents or copies of documents)…”[87]Clause 15 (3) provides We may withhold payment of your final salary or any other payment due or outstanding upon termination of your employment until you have fully complied with your obligations to return property and reveal passwords.[88]That potentially encompasses a variety of types of defaults. The clause provides no mechanism as to how the value of the employee’s default is to be assessed for the purposes of authorising a deduction. On the respondent’s case, they would be entitled to withhold all final salary or other payment due on termination to an employee because they had not returned any item of property belonging to the respondents, regardless of its value. The clause does not provide that the respondents are authorised to make a deduction in respect of the cost of an item of property which has not been returned to them (which is what the respondents did here) .[89]The clause provides that “final salary or any other payment outstanding upon termination of your employment” without recognition of the fact that this might comprise of payment in lieu of wages, as it did in this case, which are not regarded as wages properly payable from which a deduction under Section 13 can properly be made.[90]For these reasons the Tribunal concluded that clause 15 of the claimant’s contract was too ambiguous and widely drafted to be relied upon to authorise the deduction which the respondents made under Section 13 of the ERA.[91]The effect of that conclusion is that the Tribunal found the claimants claim under Section 13 to be well founded and the respondents are ordered to pay the claimant the sum of £1,167.36 which they deducted from the final payment which was due to her.[92]It may be that some other remedy is open to the respondents in respect of the claimant’s failure to return their laptop to then, but that is not a matter for this Tribunal. Other matters[93]The Tribunal was not persuaded that there was any basis to make an award of £1000 to the claimant as she sought. There was no evidence to justify such an award, and the legal basis upon which it was sought was not clear to the Tribunal. LDoherty