Ms S Sinclair v More Blacks, More Dogs, More Irish Ltd and Mr A M Soliman: 8001665/2024
JUDGMENT
[1]The claims for unauthorised deduction of wages in respect of holiday pay and breach of contact damages in respect of the last shift are withdrawn under rule 50 of the Employment Tribunal Procedure Rules 2024 and are dismissed under rule 51 of the Employment Tribunal Procedure Rules 2024.[2]The Tribunal finds and declares that the first respondent and the second respondent unlawfully discriminated against the claimant, contrary to section 39 of the Equality Act 2010, and her complaints of discrimination contrary to section 26 of the Equality Act 2010 succeeds.[3]In respect of unlawful discrimination injury to the claimant’s feelings, the Tribunal orders that the first respondent and the second respondent jointly and severally pay to the claimant the amount of £2,000 for her injured feelings.[4]In terms of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, it is further ordered that the first respondent and the second respondent jointly and severally pay to the claimant the additional sum of £322.19 representing the interest on the injury to feelings award of £2,000 calculated at the appropriate interest rate of eight percent per annum for the period between 1 August 2023 and 6 August 2025 being the date of this Judgment.[5]The first respondent unfairly dismissed the claimant. The first respondent is ordered to pay to the claimant the monetary award of £14,475.85. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply. The protected period is from 25 July 2024 until 6 August 2025. The prescribed element is that is £13,438.51.[6]The first respondent is in breach of its duty under section 92 of the Employment Rights Act 1996 to provide the claimant with a written statement of reasons for dismissal. The claimant is award the minimum of two weeks’ pay, that is £637.34.[7]The first respondent failed to give the claimant notice of termination of employment or make a payment in lieu. The first respondent is order to pay the claimant damages of two week pay, that is £637.34.REASONS
[1]The first respondent is a company operating licensed premises. The second respondent is its sole director. The claimant was employed by the first respondent, as a duty manager at the “Old Toll Bar”, Glasgow. Procedural history[2]The claimant alleges that the second respondent engaged in unwanted conduct related to race and sex which had the effect of violating her dignity and creating a degrading, intimidating, humiliation and offensive environment for her. She also complains that the first respondent unfairly dismissed her on 11 April 2024 without notice or written reasons.[3]The respondents through their legal representative sent a response denying the allegations, disputing the dates of employment, and asserting that no sums were due.[4]At a case management preliminary hearing on 10 December 2024, at which all parties were legally represented, orders were issued for a preliminary hearing on 3 February 2025 to determine qualifying service and whether the discrimination claims were time barred. A three day final hearing was proposed for March/April 2025.[5]On 30 January 2025, the respondents’ representative withdrew due to lack of instructions.[6]On 3 February 2025, the second respondent requested a postponement due to ill health but provided no medical evidence. The claimant and Ms Bowman, were present. The hearing was postponed and relisted for 31 March 2025. The second respondent was ordered to submit medical evidence within 21 days.[7]On 14 February 2025, claimant applied for expenses due to the late postponement application. The application, which was copied to the respondents by email, post and via the portal, was scheduled for consideration at the next hearing.[8]On 31 March 2025, the second respondent sent an email to the Tribunal citing that he was unable to attend the hearing due to his ill health. No documentary support was provided. He did not ask for the hearing to be postponed. The hearing proceeded in his absence.[9]The Tribunal found that the claimant had qualifying service under section 94 of the Employment Rights Act 1996 (ERA) and it was just and equitable to extend the time limits under for her harassment claims under section 123 of the Equality Act 2010 (EqA).[10]No response was received to the expenses application. An order for £495.95 was issued against the second respondent.[11]On 22 July 2025, the claimant applied for a strike out of the response in terms of rule 38(1)(d) the Employment Tribunal Procedure Rules 2024 (the Rules) and for non – compliance with an order in terms of rule 38(1)(c) the Rules failure to provide medical evidence, pay expenses, engage with the case preparation or respondent to correspondence sent by email and post and to telephone calls. The Tribunal invited comments by 1 August 2025. None were received. The final hearing[12]The claimant and Ms Bowman attended the final hearing prepared to proceed. There was no appearance by or for the respondents. No further correspondence was received for them. I proceeded under rule 47 of the Employment Tribunal Procedure Rules 2024 (the Rules).[13]Under rule 50 of the Rules, the claimant withdrew the claims for unauthorised deduction of wages in respect of holiday pay and breach of contact damaged in respect of the last shift. Accordingly I dismissed these claims under rule 51.[14]I heard evidence for the claimant who referred to various documents. While her evidence was uncontested I considered that she gave her evidence honestly and in an understated manner. Findings in fact[15]The claimant was employed by the first respondent from 12 July 2022 until 11 July 2024. The dismissal was carried out by the second respondent with prior notice.[16]In the summer of 2023, the second respondent remarked to the claimant, “You look very Aryan with your blue eyes and blond hair”. The claimant perceived this as a joke but felt uncomfortable and unsure how to respond.[17]Around August/September 2023, after the claimant bought a coffee for a white colleague, the second respondent said, “Is that for me?” and upon learning that it was not added, “Oh yeh forgot you like white people better” and “How was Germany?”.[18]The claimant had no connection with Germany and interpreted the comment, in light of the earlier remark, as suggesting that that she was racist or associated with Nazi ideology. She felt awkward and believed that the second respondent was deriving satisfaction from her discomfort.[19]In late October 2023, the claimant privately messaged the second respondent about a comment he made in a group chat about a colleague. She expressed concern that the comment was threatening, and sometimes there was a tense atmosphere among staff when the second respondent was present. The second respondent replied that he was not blaming staff for quiet periods but he needed to control spending and felt lack of feedback was insulting and hurtful.[20]Following this exchange the second respondent became increasingly distant toward the claimant. In December 2023, he deleted a message from the claimant requesting support and did not respond to a follow up. When the claimant raised this with a manager, she was told that it was because she had said that the second respondent came across as threatening. The manager reported that the second respondent had commented, “You just get some females like that.” The claimant felt anxious about this comment. She thought that the second respondent did not have a high regard for women who did not agree with him.[21]On 3 January 2024, the second respondent messaged the claimant’s line manager to ask when the claimant and another employee commenced employment. The claimant understood from managerial comments that her position had been under review but managers had persuaded the second respondent to retain her.[22]On 26 June 2024, the claimant was unexpectedly removed from the staff group chat.[23]On 11 July 2024, the claimant was scheduled to work. Upon arrival she was informed by the second respondent, in the presence of her line manager, that she was being dismissed due to poor sales performance. No prior warnings or evidence was provided. When she queried the lack of prior discussion, the second respondent replied that it had not quite been two years and the decision was made. The claimant was instructed to leave immediately.[24]The dismissal was summary. No payment in lieu of notice was made.[25]There was no evidence of misconduct. The claimant requested by email written reasons for her dismissal. No response was received.[26]At the date of termination, the claimant was 34 years of age and had two years’ continuous service. Her gross weekly wage was £318.67. She sought alternative employment and secured temporary work from 1 August 2024. She continues to experience financial loss. From the date of dismissal, she had received £3,929 from alternative employment. The claimant also received universal credit. Deliberations Harassment claimDeliberations
[27]I considered the claim under section 26 of the EqA, which applies where a person engages in unwanted conduct related to a protected characteristic that has the purpose or effect of violating another’s dignity or creating an intimidating, degrading, humiliating, or offensive environment.[28]This claim related to three comments made by the second respondent. I found that the comments occurred and constituted unwanted conduct. Two comments related to race and one related to sex.[29]The race related remarks were unsolicited. The second respondent appeared to derive satisfaction form the claimant’s discomfort. Even if that was not the purpose, viewed objectively it was reasonable in my view to have that effect. As the business owner, his comments on the claimant’s race and appearance placed her in a difficult position. The second comment caused the claimant to review the first in a more troubling light.[30]The third comment, relayed to the claimant by a manager, was not race related but related to sex. It was reasonable for the claimant to be upset that the second respondent had made such remarks about her to other staff.[31]I upheld the harassment claim under section 26 of the EqA and made a declaration to that effect.[32]The claimant sought compensation for injury to feelings. Such awards are compensatory not punitive and must reflect the impact on the claimant without being inflated by indignation. I reminded myself that injury to feelings includes subject experiences of upset, anxiety, humiliation and stress.[33]Following the Vento Guidelines, I considered the appropriate band. The lower band applies to less serious cases or isolated incidents. For claims presented after 6 April 2023, the lower band ranges from £1,100 to £11,200. The claimant sought £6,000.[34]I found this case fell within the lower band. The harassment was not a single incident and related to race and sex. The claimant’s account was credible. She had worked for the respondent for a year, was valued by managers, and raised concerns appropriately. The second respondent’s conduct reasonably caused her embarrassment and anxiety.[35]I awarded £2,000 for injury to feelings, reflecting genuine upset and anxiety, but limited impact. The second respondent was personally liable. I ordered the award to be paid jointly and severally by both respondents.[36]I considered interest under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The applicable rate in Scotland is eight per annum. Interest on injury to feelings runs from the date of the discriminatory act to the date of judgment. No submissions were made to vary this period, and I saw no reason to do so.[37]I ordered that the first respondent and the second respondent shall jointly and severally pay to the claimant the additional sum of interest upon the injury to feelings award of £2,000 calculated at the appropriate rate of interest of eight percent for the period between 1 August 2023, the date of the discriminatory act and 6 August 2025 being the date of this Judgment (735 days) calculated as £322.19. The total award for harassment is £2,322.19. Unfair dismissal[38]I then turned to consider the unfair dismissal claim. The first respondent admitting dismissing the claimant on 11 July 2024.[39]Under section 98 of the ERA the employer must show the reason (or if there is more than one, the principal reason) for the dismissal, and that it was a potentially fair reason falling within section 98(2).[40]The first respondent cited conduct as a reason. The claimant produced evidence that her reported sales figures were comparable to colleagues and reflected shift performance not individual conduct. I found no evidence of misconduct. The dismissal appeared predetermined to avoid the claimant acquiring statutory rights. I concluded the dismissal was for an unfair reason.[41]Having found the dismissal unfair, I turned to remedy. The claimant’s schedule of loss had been provided to the respondents.[42]The basic award, based on two years’ service at £318.67 per week, is £637.34.[43]The compensatory award covers financial loss. The claimant sought £17,367.51 for lost earnings (54.5 weeks at £318.67). She mitigated her loss and earned £3,929 from alternative employment. She also claimed £400 for loss of statutory rights. The total compensatory award is £13,838.51.[44]She also received Universal Credit. Under the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations 1996, the prescribed period is 25 July 2024 until 6 August 2025. The prescribed element is the compensatory award less the loss of statutory rights, that is £13,438.51.[45]The total monetary award for unfair dismissal is Total: £14,475.85 comprising a basic award of £637.34 and a compensatory award of £13,838.51. Failure to provide written reasons for dismissal[46]The claimant had acquired the necessary qualifying service when she was dismissed. She requested written reasons for her dismissal, as provided for under section 92 of the ERA. The first respondent failed to comply. Accordingly, I awarded the claimant two weeks’ pay, amounting to £637.34. Breach of contract[47]The respondent failed to provide the claimant with notice of termination or payment in lieu, contrary to the terms of her contract and section 86 of the ERA. I therefore awarded the claimant damages equivalent to two weeks’ pay, totalling £637.34.