Worker Wins Unfair Dismissal and Holiday Pay Case at Employment Tribunal

OUTCOME: Allowed

Case Number: 1600573/2023 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Cardiff On: 23, 24, 25, 26, 30 June and 1 July 2025

Before:

Members: Employment Judge S [NAME_6]

[NAME_8]:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT having been sent to the parties on 11 August 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

REASONS

Background

1. The first claim 1600573/2023 was presented on 15 March 2023 following ACAS Conciliation starting on 5 January 2023 and ending on 16 February 2023. The second claim 1603104/2023 was presented on 18 December 2023 with ACAS Conciliation starting on 1 December 2023 and ending on 18 December 2023.

2. The Claimant brought the following claims:

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a) Constructive unfair dismissal (s98 ERA 1996); b) Automatic constructive unfair dismissal (s103A ERA 1996); c) Detriments contrary to S47(b) ERA 1996; d) Unauthorised deductions from wages (s13 ERA 1996); e) Holiday pay (Working Time Regulations 1998).

3. There have been a number of Preliminary Hearings in these proceedings. On 15 January 2024 when the Claimant was given permission to amend her claim to increase the sums she was seeking with regard to the unauthorised deduction from wages. After a preliminary hearing on 4 July 2024 the Claimant was ordered to provide further particulars of her claims which she did on 31 July 2024. There then followed a preliminary hearing before Judge Brace on 27 September 2024 and the agreed list of issues was set out in Judge Brace’s order dated 27 September 2024 which is appended to these written reasons.

4. The final hearing took place on 23 to 26 June, 30 June and 1 July 2025 at Cardiff Employment Tribunal before Judge Moore and non legal members [NAME_12] and [NAME_13]. There was an agreed bundle with an additional small bundle prepared by the Claimant of clearer documents that were in the main bundle but illegible. The Respondent applied to admit new documents on 30 June 2025 which was agreed. The Tribunal heard witness evidence from the Claimant and then from the Respondent’s witnesses [NAME_60], [NAME_15], [NAME_17], [NAME_19] and [NAME_21].

Findings of Fact

5. We have made the following findings of fact on the balance of probabilities. The Claimant commenced her employment on 2 March 2015 as a personal trainer with [COMPANY_23]. We had sight of a contract of employment between the Claimant and [COMPANY_23]. This was the only evidence setting out the rates of pay for Personal Trainer (“[NAME_24]”) sessions and class sessions. Schedule 1 of the contract provided that the pay would be based on the rates of pay for the personal training determined by the banding of the club. There were the current rates (as of 2015) in Schedule 3. The holiday entitlement was pro rated dependent upon the number of hours worked based on FTE 40 hours per week and was 30 days per year including bank holidays and public holidays. After working for 5 years this would increase to one day each extra year up to a maximum of 33 days.

6. In 2016 the Claimant’s employment was TUPE transferred to the Respondent. A change of terms letter from February 2017 amended matters in relation to holiday entitlement and also the company sick pay scheme. In respect of holiday pay, the entitlement “now started at 25 days and increased to 27 days after 5 year’s service” plus bank holidays. It ring fenced the former 33 day increase to 30 days. There was no indication of

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how holidays would be calculated. The clause in respect of Company sick pay provided for it to commence at 1 week and increase to 26 weeks up to a maximum of ten years. At the time the Claimant commenced sick leave she had 7 years complete service entitling her to 16 weeks company sick pay. It stated as follows:

“company sick pay is discretionary pro rata to hours worked and based on a 12 month rolling contract. Please refer to the Sickness Absence Policy for further information on the rules and conditions surrounding reporting absence and payment of CSP and SSP.”

7. The Sickness Absence Policy provided that company pay would be paid on employees’ basic salary for the contractual hours and includes statutory sick pay.

Holiday Pay

8. The Claimant’s holiday pay claim was set out in her further particulars. It clearly states that the claim is based on her understanding that her holiday pay should be calculated on an average pay based on 52 weeks pay. The Claimant quoted the average weekly pay she had calculated and then applied the calculation to the number of hours holiday she maintained she was entitled to. The Claimant had omitted some weeks where she had received monies under the furlough scheme. We reserve such matters to the [NAME_25] hearing as we have not been able to understand the Respondent’s position.

9. The following findings have been made from documents in the bundle as the response does not assist the Tribunal in how holiday pay is calculated claiming the Respondent has “no idea what the claim is about” and even in the amended response (following receipt of the further particulars) merely states that Claimant has changed her approach and a bare denial of owing sums. According to a document titled “[NAME_26] fact sheet [NAME_24] and entitlement & pay”, the holiday entitlement and balance are calculated on basic contracted hours in [NAME_26]. The [NAME_26] fact sheet then states “Your holiday pay is calculated based on your average earnings of basic hours, plus [NAME_24] sessions and other variable pay, over the previous 52 weeks at the time annual leave is taken. These earnings are then applied to your hourly rate of pay and [NAME_26] will calculate an accurate figure for your holiday pay”.

10. The Claimant had historically been raising issues about her pay and holiday pay calculations. In the 2021 grievance, most of the grievances were dismissed save one element was upheld in respect of the pay slips where it was found that the pay slips lack some transparency and a commitment of a review was made, but there was no evidence before this Tribunal that

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such a review was undertaken. Whilst nothing turns on this grievance, we find generally it reflects the very great difficulty this Tribunal has had in understanding how the Claimant’s wages have been calculated, how the holiday pay has been calculated and moreover how that is then reproduced onto pay slips. In numerous cases there are payments paid and then deducted on the pay slips with a minus symbol with no explanation.

11. [NAME_17] is the Respondent’s [NAME_27] Manager who was called to explain the Respondent’s position on the monetary claims. In a theme reflected in all of the Respondent’s witness statements, his was extremely sparse running to 2.5 pages and did not refer to any documents in the bundle nor did it set out any reasoning as to why the Claimant’s comprehensive calculations and records were incorrect. It did not even refer us to the Respondent’s documents regarding how holiday pay was calculated that would have been relevant to the Claimant. [NAME_17] told the Tribunal that there are two elements to holiday pay. The first he describes as “Annual Leave” where an employee takes a holiday based on their annual leave entitlement which is based on their length of service and prorated if they are part time. The second is called “holiday top up” which is based on variable pay over 12 months prior to the date on which the leave is taken. In the Claimant’s case the variable pay would therefore be in respect of her [NAME_24] sessions and classes. [NAME_17] described the calculation is as follows; the variable pay is divided by 52 then divided by the contractual hours which gives an hourly rate, this is then multiplied by the number of hours of annual leave taken and is paid in the month that leave is actually taken. This differs from the way the calculation is described on the [NAME_26] fact sheet above. The Respondent were ordered to set out an explanation as to how holiday pay was calculated by Judge Brace. In that document the Respondent asserts that a document setting out a full explanation is within disclosure and had been supplied to the Claimant at that time. as the only document this could relate to is the [NAME_26] fact sheet, we find that the contractual term in respect of how holiday pay is calculated is as per the [NAME_26] fact sheet namely based on average earnings of basic pay, plus [NAME_24] sessions and other variable pay over the previous 52 weeks.

12. [NAME_17] accepted that if there had been underpayments later identified no retrospective correction of holiday would be made.

Holiday Pay 2021

13. The Claimant’s claim is for holiday pay from June, August, October, November, December 2021 and July, August, November and December 2022. We had sight of pay slips from June 2021 onwards but no pay slips before then. The Claimant provided the Tribunal with her records of all of

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her hours worked, classes taken as well as personal training sessions delivered from June 2020 – June 2021. The Claimant kept meticulous records which have been of assistance to the Tribunal, in particular in respect of the period of holiday pay for 2021 given that the calculation must be based on 52 weeks preceding June 2021. There was no evidence from the Respondent about how their figures had been arrived at. We would have expected to have seen pay slips between June 2020 and 2021 given the way the holiday pay is calculated. In the circumstances we accepted the Claimant’s evidence as to her gross weekly average pay over each preceding 12 months prior to each holiday pay claim.

14. On the basis of the Claimant’s figures, the Claimant received no holiday pay for June 2021 and maintains there were various shortfalls of the other holiday pay payments as the holiday pay was not calculated on a true average of gross pay or in accordance with government guidelines. To take an example, the Claimant took two weeks holiday on 11 – 18 and 18 – 25 July 2022. Her gross weekly average wage for the preceding 12 months was £431.99 which should have provided for £863.98 holiday pay. The Claimant was paid £778.17 leaving a shortfall of £85.81, if a payment was made on a true average the preceding 12 month’s pay. The Claimant raised the issues about her pay as early as August 2021 and eventually raised a grievance. There was an internal email with unexplained redactions dated 2 December 2021 which said that the Claimant’s calculations were wrong as she had based her calculations of variable pay on gross pay instead of holiday top up pay only. In other words, the top up holiday pay is based not on gross total pay but on the previous 12 months holiday top up pay. The Tribunal has not had any explanation as to how the Respondent’s system of calculating holiday pay described by [NAME_17] complies with their own requirement for holiday pay to be based on an average. This also does not accord with the [NAME_26] fact sheet which says that holiday pay entitlement will be calculated on an average of basic pay, plus [NAME_24] sessions and other variable pay over the preceding 12 months, which is how the Claimant has calculated her figures. The situation becomes more opaque when we consider how holiday pay is described on the pay slips. The “Annual Leave” payment described by [NAME_17] is not even described as holiday pay but as basic pay. The “top up” pay element is described by holiday pay but on multiple pay slips this is paid and then reversed.

August 2021 agreement regarding [NAME_29]

15. [NAME_28] is the name of a series of nationally well known fitness classes that can be subscribed to by fitness providers to offer within fitness clubs. Instructors learn the routines which change every three months or so then teach the classes. The Claimant’s case, which we find has been consistent from the outset of her grievance and maintained consistently throughout these proceedings was as follows. The Claimant’s contract only provided

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for 5 basic hours per week and she had been seeking an increase for some time. She needed to be at 8 hours per week to hit the ”iconic” model which was a performance target where [NAME_24]’s who were working less than 8 hours per week were expected to deliver 20 or more [NAME_24] sessions per week. By agreeing an 8 hour basic hours the Claimant would only have to hit 8 [NAME_24] sessions per week.

16. In August 2021 the Claimant had a meeting with [NAME_21] who at that time was the Fitness Manager. The Claimant says that it was agreed that she would be paid an additional 3 hours per week to practice the [NAME_29]. It was not the usual practice for personal trainers to be paid for practicing the routines.

17. From August 2021 until June 2022, the Claimant submitted these hours on [NAME_30] (the Respondent’s system for logging all work and holiday requests) and they were fully authorised and paid initially by [NAME_21] then later by [NAME_31] who became the Claimant’s line manager. In February and March 2022 [NAME_31] queried why the Claimant was claiming the three hours for practice classes. The Claimant’s evidence, which was not challenged, was that she then spoke to [NAME_31] and explained her agreement with [NAME_21]. [NAME_31] continued to authorise those payments until the end of June 2022.

18. [NAME_21]’s witness statement denied this arrangement. In his witness statement he said as follows:

“The conversation I had with the Claimant regarding [NAME_28] training was that if she needed to block out time she was already being paid from one shift to learn, that then let me know I did not and would not have been able to authorise overtime or additional pay to learn some classes. I explained my position on this during one of the grievance investigations.”

19. [NAME_21] was asked about this during a grievance investigation into the Claimant’s grievance when the payments were stopped from June 2022. He was directly asked whether he had made an agreement with the Claimant about paying her for practicing [NAME_28] and replied as follows

“Definitely not an agreement. I remember 121, I said I am pretty sure we can’t do this [NAME_33], over 50% of your hours taken up. I think I showed her the [NAME_28] business rules. There was definitely wasn't an agreement that she could be paid for the training.

And

“No, I definitely not agreed to three hours of her shift”

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And when asked if there was an informal agreement:

“Maybe a one-off basis, I may agreed, where she said she had nothing booked in.

Just this once kind of thing.

So no ongoing agreement.

JC-No.”

20. It was put to him that the Claimant had been claiming the hours since August last year his response was “[NAME_34] has been talking about it and the previous GM. I’m aware of that but I didn’t know it was for that period of time.”

21. When [NAME_21] was asked about this under cross-examination his evidence changed significantly. His evidence that he gave to the Tribunal was as follows. The Claimant put her case to him about the agreement and he told the Tribunal the following,

“When I was Fitness Manager in August 2021 you were contracted to 5 hours and you were requesting 3 for [NAME_28]. My initial reaction was ‘no’ it goes against [NAME_28] policy and is not normal policy. I manage a team of 11 [NAME_24]’s, if I gave you the 3 hours practice someone else would have asked questions and it could have opened a can of worms. From memory I then had a conversation with [NAME_31]. There were other external factors such as the situation with the Claimant’s grandmother. [NAME_33] delivered 3 hours body balance, grit and core, this would have been 36 hours in 3 months. I’m realistic, I couldn’t approve it. Then had a conversation with [NAME_35], we were under budget, we agreed as a temporary measure until we recruited a new [NAME_24], we had lost one and a job ad was out, those hours could be take as a favourable decision to help [NAME_33]. In hindsight maybe that wasn’t the best decision.”

22. [NAME_21] therefore told the Tribunal something completely different and new as to what had been maintained by the Respondent as far back as the grievance outcome. He accepted it had been agreed the Claimant would be paid an additional three hours per week for [NAME_36] classes by him and [NAME_31]. There was no mention of an end date specified as part of the agreement. The Claimant reasonably understood that this agreement was permanent. It is extremely unfortunate that [NAME_21]’s witness statement maintained the position that it did up until he gave his oral evidence. The Respondent did not attach appropriate weight to the evidence that two managers including [NAME_21] had consistently paid the

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Claimant for the 3 hours until June 2022 it had been authorised by two managers and evidenced by over 50 pages of [NAME_30] submission sheets.

Protected disclosure

23. The Respondent has a contract to undertake pre-screening fitness tests for the Ministry of Defence. There are two stages to this test, the first is various health checks on the individual including blood pressure. Provided that the individual passes the first stage test effectively, they then go on to do a fitness test. In June 2022 the Claimant was inputting a test result of a test that had been undertaken by [NAME_19] who had just started employment with the Respondent as the Fitness Manager. She noticed that the individual had a blood pressure reading that meant he should not have gone on to perform the fitness test, but notwithstanding that [NAME_19] had incorrectly processed the individual onto the next level and undertaken the physical part of the test. The nearest contemporaneous record of what the Claimant says then happened was in her grievance that later followed. The Claimant says that she raised this with [NAME_19] and he reacted in a hostile manner towards her in such a way that she did not have confidence that he had taken on board what she had explained about the problems with the test. On that basis she decided to contact [NAME_37] who is the individual within the Respondent who is in charge of the MOD testing.

24. The Claimant emailed [NAME_40] on 21 June 2022 at 11:42am. The original email was not in the bundle nor was the attachment which the test record the Claimant raised a concern about. This was unfortunate and unexplained nor was there a record of any reply by [NAME_41]. We had an extract of the email, which stated as follows;

“Recent Concerns, Hi [NAME_38], I was given this report by a new manager to upload onto our tracker, after one glance at it I could clearly see he did not understand the correct way to complete an MOD. In trying to discuss this with him his response has raised quite a bit of concern. If possible can you give me a call so I can explain my conversation and for your advice on what is best to do next…”

25. It was not disputed the email was sent and received. There was no documentary evidence from the Respondent about what then happened to follow up the Claimant’s concerns. It was surprising for there to be no other emails surrounding this issue between anyone.

26. After the Claimant had sent the email she spoke with [NAME_41] on the telephone that afternoon. She explained the blood pressure reading had been too high and when she spoke to [NAME_19] about it he did not seem concerned and was adamant he had done nothing wrong. [NAME_41] told the Claimant not to worry and she would deal with it directly.

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27. In the Claimant’s grievance raised on 27 October 2022 the Claimant said [NAME_19] reacted badly to her challenging him on this and was hostile towards her. The notes also record she told the grievance investigator that his attitude towards her was sour when they discussed it, he had said to her “you didn’t have to go and tell on me”, or words to that effect.

28. The Claimant also said in her grievance that she had understood the outcome of her conversation with [NAME_41] was that [NAME_19] had to undertake retraining to ensure that he was undertaking the tests in the compliant way.

29. The only evidence we have from the Respondent about all of this was in [NAME_19]’s witness statement at paragraph 9. We consider this to be important in terms of our findings on causation insofar as the detriments for the protected disclosure. [NAME_19] told the Tribunal he was aware the Claimant had gone to [NAME_41] about the test and that the Claimant had claimed he had done a blood pressure incorrectly. (This was incorrect as the Claimant had not raised a concern about the blood pressure test itself but that the blood pressure readings meant that the physical test should not have followed). [NAME_19] goes on to say, “[NAME_38] followed this up. I had spoken to my general manager, it was looked into and I had done it all correctly. The general manager at the time dealt with it. [NAME_38] was told she was welcome to come and see how we did things but she was happy with the response. The Claimant was not happy about that. The general manager was not happy with how the Claimant was speaking to me, particularly as I was a manager. This was a couple of weeks after I started. I had no impact on anything else.” We note at this time the general manager was [NAME_31] who was aware of and had approved the Claimant’s three hours [NAME_36] on [NAME_26].

30. Having regard to the evidence before us; the Claimant’s account and the near contemporaneous records of the grievance we find that [NAME_19] and [NAME_31] were annoyed with the Claimant for having raised the issue with [NAME_41]. We also find it unlikely that given such an important contract to the Respondent that it would have been simply dismissed or not actioned. [NAME_19] acknowledges that [NAME_37] dealt with the blood pressure issue with him and we prefer the Claimant’s account that there were some consequences for [NAME_19] in that he had to undergo some training and was spoken to about her concerns.

Refusal / Withdrawal of 3 hours pay from June 2022

31. On 30 June 2022 [NAME_19] started to send back the 3 hours the Claimant was claiming on [NAME_26] for the [NAME_36] that had been agreed with [NAME_21] and authorised by him and [NAME_31] since August 2022.

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The problem is with the [NAME_26] system (this was not disputed), is that on the mobile version of the App it is not possible for the employees to see any “sent back” comments. Sent back comments would be reliant upon the Claimant either logging onto a work or personal computer or the manager raising this verbally with the Claimant. She was therefore unaware that the 3 hours pay was being withheld and queried by [NAME_19] until August 2022 when her pay started to drop. There was no evidence that [NAME_19] brought this to the attention of the Claimant other than sending it back on [NAME_26] until later in August 2022.

32. There was a discussion with the Claimant on 30 August 2022. [NAME_19] accepted during cross-examination that there had been this discussion but he did not deal with it in his witness statement. The Claimant’s witness statement dealt with this discussion and again her grievance set out what she says the conversation. We have accepted the Claimant’s version of events on this as the Claimant has dealt with it and is backed by the near contemporaneous grievance documents a few months later.

33. The Claimant says that during a conversation about another issue [NAME_19] told her that there was no budget for the [NAME_29] any longer. The Claimant says that she specifically then told [NAME_19] about the agreement that had been reached with [NAME_21] the previous year and he agreed that he would go away and speak to someone. [NAME_19] agrees that he went and spoke to [NAME_42] but the focus of that discussion appeared to have been around whether any other personal trainers were receiving that additional payment and [NAME_42] confirmed that they were not. [NAME_19]’s witness statement said that he also spoke to the general manager who at that time was [NAME_31] and was specifically instructed by [NAME_31] to stop paying the Claimant the 3 hours. [NAME_19] offered to set up a meeting between the claimant and [NAME_42] but due to a combination of the Claimant not checking her emails and misunderstandings between the Claimant and [NAME_19] this did not take place.

34. [NAME_19]’s statement did not address whether or not he told [NAME_31] or [NAME_42] what the Claimant had told him about the previous agreement in August 2021. He was asked about this when he gave his evidence and his response was as follows; “a conversation took place with [NAME_31] and [NAME_21] regarding the 3 hours. To the best of their recollection there was no formal agreement. I was informed at the time no contractual agreement was put in place by [NAME_44] and [NAME_21]’s part of that conversation. I was informed she had been approved some hours and submissions approved but in terms of the timeline [NAME_31] instructed me to stop approving it.”

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35. [NAME_19]’s reasons for refusing the 3 hours was therefore that he was instructed to do so by [NAME_31]. [NAME_19] was still in training as a new fitness manager, [NAME_26] had been handed over to him and he queried the 3 hours as it looked like an unusual arrangement. However what remained unexplained was why it was decided to stop paying the Claimant given both [NAME_19] and [NAME_31] knew of the agreement that had been reached the year before.

36. In August 2022 the Claimant’s pay was reduced to her basic pay of £217.54 gross. No additional class payments of [NAME_24] sessions were paid.

37. On 15 September 2022 [NAME_19] emailed the Claimant advising he had “sent back the [NAME_26] submissions once again because you keep submitting hours for [NAME_28]. You have been informed in several meetings you are not able to claim for those hours. If you keep submitting these hours they will have an impact on you for pay as I cannot approve the additional hours. As your line manager you can carry on submitting the hours I will remove the following additional 3 hours so at least you can get paid for the work you have done. Please resubmit the following weeks minus the [NAME_28].”

38. The Claimant replied on 20 September 2022 reiterating her account of the agreement with [NAME_21] from the year before and saying she did not accept that she should have to take a pay cut because of previous poor management.

39. In September 2022 pay some additional payments were made for classes. There is also an entry for “Additional Basic” which had previously been how the three hours [NAME_28] payment had been described but this was for ten hours. There was a payment of £749.49 for holiday pay but this was reversed with a minus entry below. Her gross pay was £522.98.

40. In respect of October 2022 pay we have set this out below for ease of reference. In November and December 2022 nothing above the Claimant’s additional basic pay was authorised. This resulted in a significant reduction in her pay. [NAME_19] was asked about this as his email referred to above said he would remove the three hours pay so at least the Claimant could be paid for the work she had done. [NAME_19] told the Tribunal that at the time he sent the email he had understood that he could remove the 3 hours and not withhold the rest of the pay but he later discovered that that was not possible. We do not accept this explanation because the September 2022 pay slip does show that some payments were made for classes even though the Claimant had submitted the three hours per week claim. There are contradictory and unsatisfactory explanations before the Tribunal as to why the Claimant’s pay for her [NAME_24] sessions and classes was subsequently withheld for months, only being paid basic pay.

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October 2022 grievance

41. On 27 October 2022 the Claimant raised a formal grievance that [NAME_19] was bullying her and withholding her wages. [NAME_45] was appointed to hear the grievance. She specifically cited the MOD test situation as reasons she considered [NAME_19] was behaving in the way alleged stating:

This incident was causing me too much concern and resulted in me ringing [NAME_38]. I spoke to her about my concerns to try and mitigate the issue before we had a complaint. By me trying to prevent an issue, and raising my concerns this resulted in [NAME_34] having to undergo further training. Since this incident, he has held it completely against me and has been particularly unpleasant and unfair, sending back most weeks of my [NAME_26], resulting in unlawful deductions of my wages. I feel that I'm treated unfairly compared to my colleagues.

[NAME_125]. The Claimant had regularly worked every Tuesday 11am to 4pm. On 26 September 2022 [NAME_19] sent an email about changing rota. The email said as follows, “I have made some changes to the fitness rota, the individuals this affects I have already spoken, if you have not spoken to me then nothing has changed.” As [NAME_19] had not spoken to the Claimant, on reading this email, she reasonably assumed that the rota for her had not changed. She therefore did not open the attachment and look at the actual rota until late October 2022 and after one of the shift changes that had been implemented. The rota had changed the Claimant’s hours from 11am to 4pm to 10am to 3pm for 25 October and the following first week in November. The Claimant had established [NAME_47] which she had always seen at 10am on Tuesday. After she realised that she should have been on a 10am to 3pm shift on 25 October 2022, she raised this with [NAME_119]. The Claimant was later subjected to a disciplinary allegation that she had delivered [NAME_24] training at 10am on 25 October 2022. This was the regular [NAME_24] slot she had always delivered and the Claimant was unaware at that time of the change in her rota start time from 11am to 10am. Although this was later not upheld because the finding was then poor communication, [NAME_19] accepted that he made this allegation against the Claimant to [NAME_52] which we will turn to below, which in part led to the investigation meeting that followed.

Staff photographs

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44. The Claimant’s staff and [NAME_24] profile photograph that had been displayed since 2018 in reception was one of her having won a silver medal at the World games holding the medal and Union Jack flag. When she returned from leave in or around July or August 2022 she discovered that this photograph had been taken down and a photograph of her from 2016 had replaced it. It was a strange enough event or process for another personal trainer to comment to the Claimant how strange it was to do it during her absence.

45. The Claimant emailed [NAME_19] about this on 14 September 2022, sending an alternative photograph as she did not want the 2016 one used. She expressed disappointment that she had not been notified of the intention to remove her photo. [NAME_19] did not address this in his witness statement. As part of the later grievance investigation [NAME_19] was asked about this. He told the investigation he had sent the team WhatsApp messages on 12 and 15 July 2022 when the Claimant was on holiday advising them photos would be changed to ensure all [NAME_24] profiles were changed to a new profile format. Apparently the Claimant had not been in the correct staff uniform in the 2018 photograph which is unsurprising given it was taken at the World games after she had just won her silver medal. Insofar as we are to make a finding about this, it was discourteous and on top of the other issues must have been discombobulating to return and find the photograph replaced in this way.

Queries with [NAME_27]

46. The Claimant had been raising queries with [NAME_27] following the significant reduction in her pay from September 2022 as a result of the withholding of all but basic pay. The Claimant displayed a degree of frustration in her emails for which she was criticised by the Respondent both in their response and on cross examination. We find this criticism was not reasonable in circumstances where the Respondent was failing to respond to the Claimant having reduced her pay substantially with no proper explanation and had failed to respond to multiple emails in a cogent manner. The Claimant was placed into financial hardship. [NAME_27] instructed the claimant to raise the query with Mr [NAME_49] who committed on 19 October 2022 to have an update for her the next week. [NAME_27] were evidently frustrated with the Claimant and told [NAME_19] they had all previously “spent days and weeks looking over the things” and nothing was owed. This also was not fair criticism given the Claimant was only being paid basic pay and was in financial hardship. [NAME_27] asked [NAME_19] to go over and make sure her time had been entered correctly.

47. [NAME_19]’s reply to the email was telling and corroborates that covert investigations into the Claimant were starting to happen. [NAME_19] told [NAME_27] on 23 October 2022 that the Claimant “has an ongoing issue with

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submitting incorrect [NAME_26] submissions which have been addressed on several occasions, the Claimant was said to be completely aware of reason and this issue has now become a sensitive matter which is currently being looked at by HR and higher management for further investigation.”

48. Following this [NAME_19] was sent a breakdown of all payments to be paid if approved which included the disputed 3 hours on 24 October 2022 and [NAME_27] offered a call with [NAME_19] on 25 October 2022. He did not reply and was chased by [NAME_27] again on 3 November 2022.

49. The Claimant was then paid in October 2022 an “additional basic payment” described on the pay slip of £1,971.00. There was no explanation on the pay slip or provided to the claimant that this represented the backdated [NAME_24] and class payments that had been outstanding due to [NAME_19] withholding all but basic pay. We are only able to make this finding as the Respondent first described what the payment was for in their counter schedule of loss ordered by Judge Brace. This stated that the payment was made up of 56.5 class payments of £15 per hour, 38 [NAME_24] sessions and 18.5 hours outstanding additional basic hours pay. These match the Claimant’s figures for those periods on the Schedule of Loss save the Claimant says she was due 22 hours as opposed to 18.5 hours.

50. We do not know who authorised that payment, why it was made (given [NAME_27] were still chasing [NAME_19] on 3 November 2022). No breakdown was ever provided to the Claimant and she had no ability to know what the payment represented.

Class rates

51. On 10 October 2022 [NAME_19] sent an email to staff advising them how to complete new class sheets explaining the reason was to monitor class numbers on the premise that there had been low attendance.

52. On 10 November 2022 the Tribunal saw an email exchange with [NAME_51] which very clearly shows that the purpose of these class sheets was not to check on class numbers but to monitor the in-house instructors and make sure that classes were being submitted correctly. [NAME_51] told [NAME_19] she had identified that the Claimant had been incorrectly submitting her 2 x 1 hour body balance classes per week as 4 x 30 minute classes. This was later used to discipline the Claimant. [NAME_19] forwarded this to [NAME_52], now General Manager as an allegation. The Claimant was subsequently investigated and disciplined for falsely claiming inflated pay for classes as 1 hour classes are paid less than 30 minute classes.

Member complaint

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53. On 1 November 2022 there was an incident between the Claimant and [NAME_19] at reception in front of a member. The member sent an email to complain about [NAME_19]’s behaviour on 2 November 2022 to [NAME_21]. This email contained serious allegations against [NAME_19] in respect of his behaviour towards the Claimant who stated;

“he proceeded to tell the Claimant off in front of me saying she should know better, repeating to her what he had said to me but in a menacing and even threatening voice, belittling and humiliating her in front of me.”

54. The member went on to say they considered [NAME_19] had chosen the moment to maximise his need to demonstrate power, she was shocked by his behaviour and felt compelled to write the letter, describing it as verbal aggression.

55. The Respondent has policies on Managing Violence and Aggression At Work and Bullying and Harassment. Neither of these policies were in any way followed by [NAME_21] on receipt of this email. [NAME_21] did not address this issue in his statement. On 23 November 2022 just a few weeks after this complaint [NAME_21] was interviewed as part of the grievance investigation into the bullying allegations made against [NAME_19]. He was asked by the grievance officer if he had witnessed behaviour that could be construed as bullying and did not mention the member complaint. When he was asked if he had anything to add he told the grievance officer about the conversation in the staffroom (see below) yet still withheld the member complaint information, which would have course provided a degree of corroboration from a third party that the Claimant had experienced bullying behaviour.

56. [NAME_21] was asked about what action he had taken on receipt of the complaint from the member and was taken to the above policies. His evidence was vague and contradicted [NAME_19]’s version of events. [NAME_19] said that there was no one at reception apart from the Claimant, the member and [NAME_19] but [NAME_21] said he decided to investigate it by speaking to a receptionist although he could not remember her name. [NAME_19] did not think that [NAME_21] had spoken to him about it at all, whereas [NAME_21] said that he spoke to [NAME_19] and told him not to have conversations like that on reception. [NAME_21] told us that the member felt sufficiently strongly about the matter to come and knock on the management office door the following day after sending the email. [NAME_52] instructed him to then speak with the member to deal with the complaint. [NAME_21] did not tell the Claimant about the complaint nor did he discuss with her or provide any welfare check on the Claimant following receipt of the complaint.

Conversation in the staffroom

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57. On 10 November 2022 we saw that [NAME_21] had requested a witness statement from a [NAME_53] regarding a conversation she had with the Claimant in the staffroom. [NAME_53] alleged that the Claimant was disparaging about [NAME_19] and the management team and said that she wanted to get him dismissed. This then subsequently formed a later disciplinary allegation against the Claimant who subsequently denied [NAME_53]’s version of events. At this time the Claimant had raised the grievance against [NAME_19] and was having her pay withheld so it is likely that she may have made some remarks about her difficulties. This contrasts completely and in an unfavourable manner as to how [NAME_21] dealt with the member complaint against [NAME_19] which was far more serious.

Mobile phone poolside allegations

58. Also at this time there was also some behind the scenes investigations going on into events concerning the use of the swimming pool by the Claimant. There had initially been an email query raised by [NAME_21] on 2 November 2022 copied to [NAME_52], [NAME_19] and the swimming pool manager about whether certain areas of the pool were booked by the Claimant who was delivering [NAME_24] sessions/ classes/swimming lessons in the pool. This then turned into a general discussion about booking lanes. The swimming manager then commented:

May also be worth speaking to [NAME_55] as he mentioned recently, he asked her to move coz it was busy in fast lane and she said no, so ignoring the LG who's trying to keep her client and pool users safe”

59. On 10 November 2022 [NAME_19] replied to all and asked the swimming manager to obtain more detail; this was the same day [NAME_21] asked [NAME_53] for a witness statement about the staff room conversation. There must have been some further investigation by the swimming manager as on 11 November 2022 he sent an email stating a lifeguard had told him that on 17 October 2022 the Claimant had been caught using her phone on poolside and was told not to. He did not say the claimant had been rude to him or behaved inappropriately. Another lifeguard said that the Claimant had had a session in the pool before she took a class which as far as she was aware (the lifeguard), is not a scheduled class. She was asked if she had booked the lane and the Claimant had ignored her. This lifeguard did not mention anything about the Claimant using the mobile phone. [NAME_19] then forwarded this email chain to [NAME_52] on 11 November 2022.

60. [NAME_56] did not interview the lifeguards until 30 January 2023 and 2 February 2023 but we did not have sight of those investigation notes. Nothing turns on this as in the later investigation reports [NAME_56]: 1600573/2023 17

sets out the contents of the email of 11 November 2022 as grounds to proceed to a disciplinary hearing (see below).

61. It has transpired during these proceedings that the Claimant was not even in work on 17 October 2022 when it was reported that she was alleged to have used a phone by the pool.

Grievance outcome

62. The bullying grievance was not upheld by [NAME_45] and at the end of November 2022 the Claimant appealed. An appeal meeting was arranged with [NAME_58] on 12 December 2022.

63. On 28 December 2022 [NAME_60] emailed the Claimant with the outcome of the grievance. He concluded, in summary that that there was no evidence of any agreement about the [NAME_29] but as a gesture of goodwill would pay the Claimant for the outstanding amount up to his decision and not after. The site (presumably the [NAME_61]) was supposed to then review the three hours but there was no evidence that any such review ever took place. Therefore as of this date the Claimant knew she would receive backdated pay but the situation moving forward was uncertain it being subject to a review.

64. In January 2023 a large payment was made to the Claimant (£6877.76 gross £5119.71 net) which we have understood to be on the instructions of [NAME_60] but having had regard to that pay slip we have been unable to decipher what was paid specifically whether the wages that had been withheld had been correctly paid and reserve those matters to [NAME_25]. This pay slip is incomprehensible with multiple entries paying and deducting sums. It pays SSP then reverses SSP. There are payments made for holiday pay then deductions for holiday pay in different sums.

Disciplinary proceedings January 2023

65. On 10 January 2023 the Claimant started work at 6.30am with [NAME_24] sessions before her shift starting at 10.00am. [NAME_19] called the Claimant up to the office on the pretext that she had to do some online learning but when she arrived she found that a senior manager called [NAME_56] and an individual from HR [NAME_62] waiting for her and she was informed that there were going to be an investigation meeting. The subsequent handwritten notes of this investigation meeting were all signed by the Claimant albeit under some protest given the finish time of the investigation meant it was rushed except for the checklist. The Claimant disputed that the checklist had been read to her and this contained important information about confirming that the purpose of the meeting had been explained and that she could request a break.

Case Number: 1600573/2023 18

66. The checklist inaccurately recorded that the Claimant had had a one hour break at 1.00pm whereas in fact she had to leave the investigation meeting and go and deliver a yoga class and then return to the investigation meeting. No arrangements were made for the Claimant to cover the class. We do not accept [NAME_19] was on stand by to cover the class, as if he had been, the Claimant would not have had to do this. By the time the meeting finished around 3.00pm the Claimant had not had a break since she started at 6.30am that morning. These were not reasonable arrangements to have undertaken in such circumstances.

67. There was no pre-warning of the investigation or what the allegations were. The ACAS Code of Practice does not provide for such for investigation meetings.

68. There was a complete absence of any evidence to this Tribunal as to who decided there needed to be a disciplinary investigation and who drew together the allegations. [NAME_56] was certainly in possession of some written note of the allegations because he went through four allegations at that meeting. He was also quoting emails and putting matters to the Claimant from documents.

69. It was put to the Claimant that she had been incorrectly claiming 30 minute class rates for 60 minute classes. The Claimant explained that she had understood that the rates of pay were £15 for a 30 minute class and £19 for a 60 minute class. It was put to the Claimant whether she had any documents to support this. At that time and to the date of this hearing the Respondent has not produced any document explaining either what the rates should have been or when and how the Claimant or any other personal trainer was informed of the rates (save the 2015 addendum to the contract referenced above). If the Respondent did not have any record of what the rates were it is unsurprising the Claimant did not either.

70. The Claimant pointed out to [NAME_56] that she had been making the claims in the way that she had on [NAME_26] for many months, if not years, and they had always been authorised and no-one had raised those issues with her.

71. Following this investigation meeting the Claimant was signed off sick from 11 January 2023 and the Fit Note said it was stress at work. The Respondent’s sick pay policy provides that there should be contact every day for the first 7 days and thereafter the frequency should be arranged and contact should be agreed with a manager. If there is long term absence contact plans should be agreed. A second Fit Note was submitted on 13 February 2023 and [NAME_19] sent the Claimant some emails signposting her to welfare support.

Case Number: 1600573/2023 19

72. On 22 March 2023 the Claimant was referred to occupational health by [NAME_52] but the basis of this referral was limited to see if the Claimant was well enough to attend a further disciplinary investigation hearing. This was later found to be the wrong approach by [NAME_15] (see below). The occupational health report confirmed the Claimant was well enough to attend a meeting but not face to face and suggested Teams. She was not well enough to return to work.

April 2023 grievance

73. On 4 April 2023 the Claimant raised a further grievance. The Claimant referred to further evidence she said backed her October 2022 complaint that [NAME_19] was bullying her. This was the staff photographs, change in rotas, inconsistency in authorising / declining holiday requests, no praise for [NAME_24] sales, the member complaint (which she had become aware of) lack of opportunity in respect of a new role / promotion, ambushed with the January 2023 investigation, lack of contact from management whilst off sick and failure to adhere to company sick policy. The Respondent decided to split the grievance into two; there is no explanation as to why and this was outside of the usual procedure. [NAME_60] was given some of the grievance which related to the Claimant’s claims she had more evidence to support the previous grievance that [NAME_60] had had not upheld specifically the bullying allegation against [NAME_19]. The other parts of the grievance were given to [NAME_15] which were deemed to be new matters involving a wellbeing role, being ambushed with the investigation meeting and lack of contact during her sickness absence.

74. [NAME_60] did not meet with the Claimant. [NAME_60]’s witness statement said that instead he undertook a review. In [NAME_60]’s witness statement he described his involvement in the April grievance and questions being sent to witnesses. He stated; “my decision at this additional stage was sent by letter of 3 May 2023. I set out the reasoning for each point within my decision letter in some detail. Ultimately I did not see any reasons to change the decision and her grievance was not upheld.” He goes on to say he could not agree with certain elements of the Claimant’s case and that she had been unable to provide any evidence of the [NAME_28] agreement

75. What then transpired under cross-examination was that contrary to the witness statement [NAME_60] told the Tribunal that he had done nothing himself personally to investigate the Claimant’s grievance. All of the investigations had been done by the employee relations team, specifically a [NAME_64] including writing the report and the decision outcome letter he signed. He told the Tribunal he just signed the outcome letter.

Case Number: 1600573/2023 20

76. At this point the Claimant had become very upset and evidence had to be concluded early that day. It was evident that [NAME_60] had not understood the seriousness of what had just happened in that his written statement was at best very misleading and at worse untrue. Further, the person who had made the decision, [NAME_64], was not called as a witness and the Claimant could not therefore question her on her decisions.

77. Judge Moore then spoke to the Respondents witnesses about the importance of the accuracy and truthfulness of their witness statements and asked them overnight to thoroughly review their statements and tell [NAME_10] if they needed to make any changes before they were subsequently sworn in. Notwithstanding this warning, [NAME_21]’s oral testimony substantially differed from his witness evidence (see above).

78. [NAME_64] had emailed [NAME_52] and [NAME_19] about the customer complaint which the Claimant had relied upon as new evidence she had been bullied by [NAME_19]. [NAME_52] told [NAME_64] that [NAME_21] told her:

a) he had spoken to other members of the team who were present at the time of the alleged incident and they had stated that the incident had not happened as it had been portrayed and;

b) he investigated and then sat with the member, discussed her complaint and then the matter was closed;

c) [NAME_21] recalls the member was more concerned that she had been informed at reception by [NAME_19] that she was incorrectly paying for [NAME_24];

d) [NAME_21] discussed the need with [NAME_19] to ensure if discussions were to happen with the team that might be sensitive it should not happen at reception.

79. The grievance appeal outcome decision by [NAME_64] was to accept [NAME_52]’s hearsay account of the incident at reception with [NAME_19] over the Claimant’s account. [NAME_64] does not appear to have asked for documents or ask why the bullying policies were not followed. It did not evaluate whether the new information presented by the Claimant about the member complaint changed this assessment of the reliability of the evidence. This was an unreasonable conclusion to have drawn given the email from the member which significantly corroborated bullying behaviour by [NAME_19] from [NAME_66]. The employee relations advisor chose to accept what [NAME_21] later via [NAME_52] about the member’s concerns rather than the member’s actual written concern. It also did not evaluate why there had been ongoing authorisation and payment of

Case Number: 1600573/2023 21

the [NAME_28] agreed hours between August 2021 – June 2022 as evidence such an agreement had been reached, accepting [NAME_21]’s account that it had not.

80. There was a more thorough investigation by [NAME_15] who actually did do his own investigation and personally wrote the conclusions. He gave instructions for the questions to be followed up such as asking [NAME_120] and [NAME_62] about the checklist. [NAME_15] just accepted their word that it had been read to the Claimant and did not evaluate whether the record was unreliable denoting the Claimant having taken a break, even though he knew that this was not the case and that she had been made to take a yoga class during this very difficult meeting for her.

81. [NAME_15] upheld the part of the grievance regarding [NAME_52]’s occupational health referral insofar as the occupational health focus had been on whether the Claimant was well enough to attend a disciplinary investigation rather than efforts to get her back to work. He also upheld the lack of contact during her sickness absence.

Disciplinary proceedings continued

82. The Claimant attended a second investigation meeting with [NAME_56] on 25 April 2023. Around this time the Claimant made repeated requests to have a second occupational health referral, which was not actioned or replied to for a number of weeks by [NAME_52].

83. The investigation report dated 4 May 2025 shows the allegations that had been investigated by [NAME_56]. There is no evidence that these had been put in writing to the claimant before the report. There were five allegations that were within the remit (and again we do not know who decided the remit):

- Inappropriate comments regarding management team raised by [NAME_53], Beauty Therapist, on 10 November 2022 (emanated from [NAME_21] see above at paragraph 57); - delivering Personal Training on shift (emanated from [NAME_19]); - Failure to follow [NAME_4]'s protocols for financial gain; specifically, incorrectly logging of classes on [NAME_26], the claimant was alleged to have been inputting her two-hour body balance classes as 4 x 30 minutes sessions, as opposed to x2 1-hour sessions. Pay for an hour class is £19 and pay for a 30-minute class is £15, resulting in an overpayment of £11 per class (emanated from [NAME_19] and possibly [NAME_52]) - Rude and inappropriate behaviour on poolside towards lifeguarding and failure to follow [NAME_4]'s health and safety protocols in

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relating to using mobile phones on poolside on 17 October 2022 (emanated from [NAME_19]); - Rude and inappropriate behaviour towards members on 12 December 2022 (source unknown).

84. [NAME_56] concluded that two allegations must go forward to a disciplinary hearing. The invitation to the disciplinary hearing set out the allegations:

a) “Falsification of the [NAME_27] records and failure to follow [NAME_4]’s protocols for financial gain, specifically incorrectly logging classes;

b) “Rude and inappropriate behaviour and failure to follow [NAME_4]’s health and safety protocols, specifically on 17 October 2022 [NAME_2] was using her mobile phone on poolside and ignored instruction from the lifeguard on duty.”

Disciplinary Hearing and outcome

85. [NAME_42] conducted the hearing which took place on 16 May 2023 via Teams. The Claimant told [NAME_42] she had never used a mobile phone by the pool but does use her Ipad. He accepted that Ipads are used for swim school. She also told [NAME_42] and showed him evidence of the continued approval of her claims on [NAME_26] by four separate managers for the class rates over two years and asked why they had been approved if they were wrong and she had never been told they were wrong.

86. On 19 May 2023 [NAME_42] wrote to the Claimant advising he upheld the allegations. Regarding the phone use he relied on two witness statements from lifeguards confirming the Claimant was on her phone. Regarding the class rates [NAME_42] concluded the Claimant did know there were different pay rates for 30 and 60 minutes classes. He relied upon a WhatsApp message from [NAME_19] which he stated, “reiterated the payment for classes”. This was not correct. The WhatsApp message in question was a response to a question from another employee asking what the rate was for a 45 minute class. It did not give class rates for 30 minute classes. The Claimant was deemed to be guilty of gross misconduct but a final written warning was given due to her length of service and clean disciplinary record.

87. At the relevant time, and as at these proceedings the Claimant was not taken to any policy or health and safety protocol prohibiting the use of phones by the pool, nor have we been taken to any protocol about logging 30 minute classes differently to 60 minutes. [NAME_15] was asked what health and safety protocol the Claimant had breached in respect of the alleged phone use. [NAME_15] told the Tribunal that staff were allowed an electronic device poolside as long as it is in safe casing and he was not

Case Number: 1600573/2023 23

aware of any written policy regarding phone or Ipad use poolside although either could pose a risk of being misconstrued as taking photos. One of the lifeguards told [NAME_56] he knew about the no phone rule as he had been told on his first day and there were signs by the pool. He also referred to it being in something called the NOP but we do not know what this is. The other lifeguard said the Claimant had an Ipad and a phone and was aware of company policy on phone use from her interview and sheets detailing what you can and cannot have by poolside and the claimant had done the lifeguard course so should have been aware.

Ongoing absence

88. On 7 June 2023 there was a second occupational health referral. The report advised the Respondent that the Claimant was not seeking advice from her GP (in other words not obtaining fit notes). The adviser stated the Claimant was unfit for work at present due to her sense of being overwhelmed by the disciplinary and grievance processes, although she could undertake work online. She stated that once the appeal was over she would be pleased to speak to the Claimant again and discuss a return to work. She recommended looking at a temporary adjustment to her work duties during an initial return.

89. On 13 June 2023 the final written warning was upheld on appeal. On 12 July 2023 the grievance appeal was not upheld.

90. The Claimant contacted [NAME_21] on 31 May 2023 to explain she was working online (the Claimant classed working on her appeals as working online). [NAME_21] did not raise any issue with this in his reply of 9 June 2023 but requested an up to date fit note as the last one had expired on 23 March 2023. On 22 July 2023 the Claimant replied and told [NAME_21] the [NAME_68] said she could work online and she was available and willing to work. On 3 August 2023 [NAME_21] told the Claimant there was no possibility of working online and in the absence of a fit note her absence was unauthorised. The Claimant replied on 8 August 2023 stating she was “lost and confused” as to what she should be doing and complained about the lack of contact. She highlighted she had requested leave in June that had yet to be approved. There was no proper investigation or engagement with the recommendations of occupational health at that time to see if the Claimant could return to work.

Annual leave request

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91. On 7 June 2023 the Claimant submitted a request for annual leave on 5, 12 September 2023 and 19 December 2023. These were not actioned until [NAME_19] declined them on 7 September 2023, reason stated as the Claimant being on sick leave.

92. The Claimant had travelled to Germany to compete in an event. She was open about this with [NAME_21]. [NAME_21] did not reply to the 8 August 2023 email until 6 September 2023. He stated; “I’ve checked your [NAME_26] and can see no annual leave for the time booked off in September.” This cannot have been correct because the [NAME_26] record we saw quite clearly logged that the Claimant had made a request which had not, as of 6 September 2023, been refused. He then said “unless you’ve got a GP note which we’ve been requesting, if you’re away competing I need to understand how you are working from home or fulfilling the requirements of your role”, and he instructed her to attend saying he “required her attendance on 12 September at 1.00pm” which is within the normal day and time of working albeit, as noted above, the Claimant had requested leave.

93. The Claimant, very conscious she was on a final written warning, drove back through the night from Germany to make sure that she was at the meeting.

94. When she arrived at the club on 12 September 2023 and reported to reception she was advised that [NAME_21] was not at the club but in Newbury attending some training. [NAME_21] explained in his witness statement that he was aware he was double booked with training and meeting the claimant. The general manager instructed him to attend the training and “in the worst case scenario” the manager was in the club and available.

95. [NAME_21] told the Tribunal that when the Claimant arrived for the meeting she was told the general manager was available and able to meet her but she said no and left. The Claimant disputed she was told the general manager was there to speak to her. We prefer the Claimant’s account as [NAME_21] told the Tribunal that he had not informed reception to pass any message to the Claimant so it is difficult to understand how the Claimant would have been expected to know she could have spoken or asked for the general manager. The Claimant, having requested leave three months earlier, had the leave declined 5 days earlier and instructed to attend on 12 September 2023 made considerable effort and under considerable duress to attend a meeting. [NAME_21] did not have the courtesy to be at that meeting or to make arrangements for someone to meet with her in his place.

96. On 13 September 2023 [NAME_21] emailed the Claimant sincerely apologising and introduced the new general manager who he said would be her lead contact moving forwards.

Case Number: 1600573/2023 25

97. The Claimant regarded the failure by [NAME_21] to attend the meeting as the last straw and on 19 June 2023 she submitted her resignation. Her reasons were:

“The consistent bullying with no resolution and refuse to acknowledge any issues being present. Fabrication of events to bully me into a final written warning. [NAME_5]'s failure to follow the companies sickness policy;

Declining annual leave requests out of legal time frames set on [NAME_69] website this is a breach of the implied duty of mutual trust and confidence I have with [NAME_5].

Repeated occasions of withholding wages and incorrect wages including but not limited to Holidays & SSP as per [NAME_69] guidelines. Neglecting ownership and fault only through vigorous grievance process able to regain some of the financial loss.

Consistent miscommunication. Having been in contact throughout my sick leave.

[NAME_5] failing to provide me with suitable work. Taking two attempts of occupational health meetings after miscommunication from the first one. Followed by lack of care to get me back in work having waited over 5 months from the last day of sick to finally be invited to a return to work meeting, to which I attended to find you not present at club to host the meeting I was invited too, having rang and messaged you to find out from reception after the start time of the meeting that you were away on a pre organised training day, this creating a complete breach of confidence and trust making it impossible to return.”

Wages / sick pay / holiday pay from February 2023

98. On 28 February 2023 the Claimant was paid £587.24 gross, £661.95 net. From January 2023 the pay slips had started to show a payment next to the gross amount for “[NAME_24] iconic info only (if applicable)”. There are two entries for SSP of £99.36 and £255.48 which are both then deducted. There are entries for the Claimant’s usual basic pay of £217.54 plus 5 hours Additional Basic plus 11 hours of classes. There was no SSP paid in February 2023.

99. March 2023 pay slip. The pattern repeats here with basic pay of £217.54 and this time three different SSP payments made and then deducted.

100. April 2023. The basic pay was now £237.04 with no SSP entries and reversals.

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101. May 2023 becomes even less clear with the Claimant only being paid £94.82 with multiple payments and reversal for SSP and a deduction of £142.22 for occupational sick pay.

102. June 2023 the basic pay is £237.04 and a payment of £142.22 for Occupational Sick Pay. The multiple payments and reversals for SSP continue.

103. July and August 2023 drops back down to one entry of £237.04 gross.

104. September 2023 is the most confusing pay slip before this Tribunal containing pro rated basic pay (as the Claimant had resigned) of £165.93 plus leavers holiday pay of £196.92. The remaining entries are payments and reversals of 14 or so payments and reversal payments variously described as SSP offset , Occupational sick and Statutory Sick pay. The actual payments received are £253.45 gross and £248.45 net.

105. On 18 September 2023 the Claimant emailed [NAME_27] to query why her pay slips showed SSP added and then immediately deducted meaning she had received no SSP at all. On 22 September 2022 [NAME_70] of [NAME_27] sent an email explaining as follows:

Hi [NAME_2] I have had a look at your [NAME_26] and can see there have been a few corrections to your sick leave absence. The SSP will only be due when you do not receive your normal Basic pay and your two pay packets before the sick leave period are above the Lower Earnings Limit of £533 per month. It is not in addition to your pay unless you have depleted your Company sickness entitlement ( CSP/OSP) The SSP entries you are seeing is the [NAME_26] calculations which ideally would be in the background and not on display but not something we can stop. In September you will have unpaid sick leave for 10 hours as you will have depleted your Occupational Sick Leave on the 5th September. Your earnings for July and August are below the Lower Earnings Limit to be eligible for SSP I am afraid Please find attached a SSP1 which you will need to send to the Job Centre to claim further support The password is your DOB in reverse yyyymmdd

106. The Claimant replied on 27 September 2023 to say she was confused and the reason her pay was below the lower limit was that she had not been paid correctly. [NAME_70] responded that as she had been in receipt of OSP (Occupational Sick Pay) she would not normally receive SSP until the OSP was depleted, confirming it had stopped as of 5 September

Case Number: 1600573/2023 27

2023. SSP entitlement was £218.82 from 6 – 19 September 2023. She later confirmed that in respect of the September pay the Claimant had been deducted 10 hours unpaid sick pay of £109.40 and SSP in place of £218.82. she later confirmed that OSP had been paid @ £165.93 per month which would however be described as Basic pay on the pay slip. The Claimant queried how OSP could be lower than SSP on 12 December 2023.

107. The Claimant has been paid company sick pay based on her basic contractual hours whereas she should have been paid based on a 12 month rolling period. Further the sick pay paid was less than the amount for statutory sick pay. The Respondent’s Counter Schedule does not set out how they have calculated the sick pay.

108. In an email dated 26 March 2024 the Respondent confirmed the 2023 holiday pay due on termination was 27 hours accrued up to 27 September 2023 and 9 hours had been taken, leaving 18 hours to be paid at the end of the employment. This was paid at £10.94 per hour. It is unclear how this has been calculated but what we are able to conclude is that it must be incorrect as the Claimant’s pay during the preceding twelve months had been depressed due to both unauthorised deductions from wages and an unlawful detriment.

The Law

Protected Disclosures

109. s43B ERA 1996 provides:

(1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following—

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

Case Number: 1600573/2023 28

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

110. In Kilraine v Wandsworth London Borough Council [2018] ICR 1850, the Court of Appeal held that the concept of information in S43B (1) was capable of covering statements which might also be allegations. In order for a statement to be a qualifying disclosure it had to have sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1) and this was a question of fact for the Tribunal. The disclosure should be assessed in the light of the context in which it is made.

111. Where the disclosure is said to be a breach of a legal obligation (S43B (1) (b)), if the legal obligation is obvious then it need not necessarily be identified (Bolton School v Evans [2006] IRLR 500 (EAT upheld by [NAME_72])). If it is not obvious, the source of the legal obligation should be identified by the Tribunal and how the employer failed to comply with it. The identification of the obligation does not have to be detailed or precise but it must be more than a belief that certain actions are wrong (Eiger Securities LLP v Korshunova [2017] ICR 561).

Reasonable belief and public interest

112. [COMPANY_73] (t/a Chestertons) v Nurmohamed [2018] IRLR 837), the following approach when considering reasonable belief was set out (per Lord Justice Underhill:

“26. The issue in this appeal turns on the meaning, and the proper application to the facts, of the phrase "in the public interest". But before I get to that question I would like to make four points about the nature of the exercise required by section 43B (1) .

27. First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of section 43B as expounded in [NAME_75] (see para. 8 above). The tribunal thus has to ask (a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and (b) whether, if so, that belief was reasonable.

28. Second, and hardly moving much further from the obvious, element (b) in that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the "range of reasonable responses" approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to "the Wednesbury approach" employed in (some) public law cases. Of course we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. All that

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matters is that the Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking – that is indeed often difficult to avoid – but only that that view is not as such determinative.

29. Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable.

30. Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at para. 17 above, the new sections 49 (6A) and 103 (6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation – the phrase " in the belief" is not the same as "motivated by the belief"; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it. “

113. Public interest is not defined in ERA. The question is whether in the worker reasonably believed the disclosure was in the public interest, not whether objectively it can be seen as such.

Detriment claim

114. Under S47B ERA 1996 the employee has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

115. A detriment will exist if by reason of the act or acts complained of a reasonable worker would or might take the view that he had been disadvantaged in the circumstances in which he thereafter had to work. An unjustified sense of grievance cannot amount to a detriment but it is not necessary to demonstrate some physical or economic consequence

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([NAME_76] v [NAME_77] of the Royal Ulster Constabulary [2003] UKHL 11).

Causation

116. If the employee establishes that they made protected disclosures and there were detriments , S48(2) ERA 1996 provides it is for the employer to show the ground on which any act or deliberate failure to act was done, only by showing that the making of the protected disclosure played no part whatsoever in the relevant acts or omissions. The standard of the burden of proof required is if the protected disclosure materially influences (in the sense of more than a trivial influence) the employer’s treatment of a whistle- blower (Fecitt v NHS Manchester [2012] ICR 372).

117. An employer will not be liable if they can show the reason for the act or failure to act was not the protected act but one or more features properly severable from it (Martin v Devonshires Solicitors [2011] ICR 352, Panayiotou v Kernaghan [2014] IRLR 500).

Time Limits – Detriments

118. S48(3) ERA 1996 provides that the Tribunal shall not consider a complaint unless it is presented before the end of three months beginning with the date of the act or failure to act to which the complaint relates, or where that act or failure is part of a series of similar acts or failures, the last of them. If the claim is presented out of time the test is one of reasonable practicability.

119. S48(4) provides that where an act extends over a period, the “date of the act” means the last day of that period and a deliberate failure to act shall be treated as done when it was decided on.

120. Time will start to run from the date of the act or failure to act, not the date on which the employee becomes aware (McKinney v Newham London BC [2015] ICR 495). In Tait v Redcar and Cleveland Borough Council [2008] [NAME_78], disciplinary action was found to be capable of being classified as 'an act extending over a period'. There was also a finding that although there was no doubt that there had been an initial 'act' of suspension, the state of affairs thereafter in which the employee remained suspended pending the outcome of the disciplinary proceedings could quite naturally be described not simply as a consequence of that act but as a continuation of it.

121. It is important not to confuse the act with the effects of the detriment if they continue to be felt. Furthermore, the meaning of “series of similar

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acts” in S48(3) (a) differs to the meaning of an act extending over a period of time in S48(4) (a). We have had regard to the guidance in Arthur v London Eastern Railway Ltd [2007] ICR 193 (per Mummery LJ).

S103A Unfair Dismissal

122. An employee has the right not to be unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

123. There is a different causation test to the detriment claim as the disclosure must be the primary motivation rather than a material influence.

124. In S103A constructive dismissal claims the question to be determined is whether the principal reason for the fundamental breach in contract was the protected disclosure.

125. The summary of Judge Eady QC of assistance when considering a S103A claim in a constructive dismissal case (Salisbury NHS Foundation Trust v Wyeth UKEAT/0061/15):

[31] In such a case, the ET will have identified the fundamental breaches of contract that caused the employee to resign in circumstances in which she was entitled to claim to have been constructively dismissed. Where no reason capable of being fair for s 98 purposes has been established by the employer, that constructive dismissal will be unfair. Where, however, the reason remains in issue because there is a dispute as to whether it was such as to render the dismissal automatically unfair, the ET then has to ask what was the reason why the Respondent behaved in the way that gave rise to the fundamental breaches of contract? The Claimant's perception, although relevant to the issue why she left her employment (her acceptance of the repudiatory breach), does not answer that question.

126. Although not a case concerning constructive dismissal, in [COMPANY_121] v [NAME_79] 2019 UKSC 55, SC, the Supreme Court held that if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.

Wages claim

127. S13 Employment Rights Act 1996 provides that an employer must not make a deduction from the wages of a worker. The time limits for bringing wages complaints are in s23. Given the list of issues denotes any time point to be determined under s23 ERA 1996 and the respondent has

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not pleaded any time point in relation to holiday pay as falling to be determined under Reg 30 WTR we have understood the holiday pay claim to be advanced as a wages claim under s13 ERA 1996, save for the claim for accrued but unpaid holiday due at the termination of the employment.

Holiday pay claim

128. The Working Time Regulations 1998 give workers a minimum entitlement to paid holiday. Pay is calculated in accordance with s221-224 Employment Rights Act 1996. For workers who do not have normal working hours, a week’s pay is calculated by reference to an average of hours and remuneration over a 12 week period.

129. On termination of payment, a worker is entitled to receive pay in lieu of any unused annual leave (regulation 4).

Conclusions

Constructive automatic unfair dismissal

130. We consider each act relied upon as follows.

2.1.1.1 [NAME_80] stopped approving the Claimant’s wages when she submitted online timesheets for approval – from 6 June 2022 to the date of termination of the Claimant’s employment

131. In our judgment there was a variation to the Claimant’s contract of employment in June 2021 when [NAME_21] authorised by [NAME_31] agreed to pay her an additional three hours per week, see paragraphs 15- 22. It is not disputed that [NAME_19] stopped approving this element of Claimant’s wages when she submitted online timesheets for approval from 6 June 2022. Whilst the hours to December 2022 were subsequently back paid on instruction of [NAME_60], from January 2023 until the date of termination of the Claimant’s employment the Respondent unilaterally varied the term of the contract by stopping this element of pay.

132. Not only did the Respondent withhold the additional three hours pay, they also withheld some [NAME_24] and class payments for August and September and all of them for October, November and December 2022. See paragraphs 36, 39, 40 and 49 above. There are contradictory explanation that are not credible as to why the Claimant’s pay for her [NAME_24] sessions and classes was subsequently withheld for months, only being paid basic pay causing the Claimant financial hardship. Her attempts to resolve matters were met with obstruction and dismissive attitudes (see paragraph 46) to the extent she had to raise a grievance.

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2.1.1.2 The conduct of [NAME_80] complained of by the Claimant in her grievances of 27 October 2022 and 4 April 2023;

133. The Claimant alleged that [NAME_19] had bullied her and was withholding wages. The focus of the October 2022 grievance was the withholding of wages. In the April 2023 grievance the Claimant relied upon other conduct by [NAME_19] as further supporting evidence that she was being bullied. This is the conduct relied upon that we must consider. The main “non wages” matters relied upon in respect of the bullying were the staff rotas (see paragraph 42),staff photograph (see paragraphs 44-45) and the complaint from the member (see paragraphs 53-56). Factually there was no dispute about the photo and rota. The issue was whether this was part of the prohibited course of conduct.

134. The explanations by [NAME_19] for the photo and rota change are on the face of it, reasonable explanations. All of the [NAME_24] profiles were changed and the reason the old photo was used was that the Claimant had not replied to the What’s app messages. On the other hand, the Claimant was a [NAME_24] charged with selling [NAME_24] sessions and it is reasonable to understand that a photograph of her winning a silver meal at the World games would not only be a photo she would be proud of, but also a good PR image for the Respondent. The change in rota was a management decision [NAME_19] was entitled to take but his covering email specifically said if he had not had a discussion then there was no change and the Claimant reasonably relied upon this. These matters in our judgment show that communication by [NAME_19] about important matters could have been improved, but if viewed in isolation would not amount to breaches of the implied term of mutual trust and confidence. See our conclusions below as out conclusions differ when we have stepped back and looked at all of the conduct.

135. Our conclusion differs in relation to the member complaint. This was a very serious complaint that corroborated the Claimant’s allegation of bullying by [NAME_66]. In our judgment the Claimant is entitled to rely upon this conduct by [NAME_19] as part of a course of conduct breaching the implied term of mutual trust and confidence.

2.1.1.3 [NAME_80] made allegations against the Claimant which resulted in a disciplinary process and the Claimant issued with a final written warning. The Claimant is unable to supply the date that [NAME_80] made allegations but the Claimant attended an initial disciplinary investigation on 10 January 2023 and received a final written warning on 19 May 2023

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136. [NAME_19] and to a lesser extent [NAME_21] made a number of allegations against the Claimant. We address these in turn but in general, we have concluded that the timing of these allegations are telling and point towards a case being built against the Claimant. In particular the cover up of the member complaint compared to the “mining” of statements on the instruction of [NAME_21] and [NAME_19] against the Claimant on matters that had not deemed to be issues at the time they happened. The incidents were in the main caused by poor communication and of a trivial nature to the degree that we have concluded a reasonable employer would have dealt with as management issues. They should never have been escalated to the degree they were. Common sense was wholly departed from. Again we contrast this to how the member complaint was dealt with by [NAME_21].

Allegation that the Claimant was delivering [NAME_24] sessions during shift (paragraphs 42-43 and 83

137. This allegation related to two sessions at the end of October 2022 and the beginning of November 2022 where the Claimant had not realised her shift had changed from 10am to 11am. As explained above the Claimant had established [NAME_24] sessions at 10am every Tuesday morning and had not looked at the attachment changing her rota as [NAME_19] had said in the covering email that if he had not spoken to the member of staff there were no changes. The Claimant herself raised this with [NAME_19] when she realised her hours had been changed. The Respondent has not explained how this resulted in an allegation being made that the Claimant’s behaviour in delivering two [NAME_24] sessions warranted a disciplinary investigation. This was not a reasonable allegation to make given the confusion over the rota changes caused by the confusing working of [NAME_19]’s covering email. It was not reasonable to treat this incident as grounds to make allegations of dishonestly against the Claimant.

Allegation that the Claimant had made derogatory remarks about [NAME_19] to [NAME_53] in the staffroom (paragraph 57)

138. This allegation was progressed by [NAME_21] who asked [NAME_53] to make a statement about what Claimant had said. It is reasonable to assume [NAME_19] was aware of the conversation from [NAME_21] but it is unclear who actually decided this should form part of the disciplinary investigation in the following January. Whilst it is fair to say [NAME_53] had reported derogatory remarks, the context of the ongoing grievance and the withholding of wages was not considered. This Tribunal considers it was not reasonable in these circumstances to warrant a disciplinary

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investigation especially when compared to how the member complaint was dealt with.

Allegations rude and inappropriate behaviour to lifeguards and use of the mobile phone poolside (see paragraphs 58-61, 83, 85-87)

139. The two lifeguards had not brought the incidents to the attention of the manager at the time, which makes us consider they deemed the incidents unremarkable. They only reported them when prompted by [NAME_19] via the swimming manager. At its highest, the Claimant was seen by one lifeguard on her phone and told to put it away and ignored another lifeguard. [NAME_42] later concluded that that two lifeguards had seen the Claimant on her phone. The Tribunal has not seen their later witness statements taken by [NAME_56]. Even if the Claimant had been on her phone (which she denied) the Respondent has not produced any written policy or rule that this is prohibited. The Claimant’s position at all material times was that she had used her Ipad and also did not know about any rule preventing phone use by the pool. If an employer is going to discipline an employee for breaching a rule or policy it is reasonable to assume that the said policy is published or communicated to employees. The Respondent did not call anyone involved in the disciplinary proceedings to be asked questions. [NAME_15] did not even know about the policy when he was asked and he is an experienced manager.

Allegations the Claimant had used the wrong class rates for financial gain (see paragraphs 51-52, 83-87)

140. The Tribunal found this to be a most perplexing course of conduct by the Respondent. It was wholly unreasonable to accuse the Claimant of dishonesty in these circumstances. It was wholly unreasonable to rely on one What’s app message as evidence the Claimant should have known about the rates for classes when the class rate she was accused of as inflating was not even mentioned in that message. A reasonable employer accusing an employee of dishonestly for claiming incorrect class rates would:

a) Have had clear published rates communicated to staff and; b) Taken into consideration when making the allegation and then issuing of the final written warning that four different managers over two years had authorised the claims on [NAME_26] and not raised any issue; c) Not relied upon one What’s app message that did not even mention rates for 30 minutes classes as grounds to conclude the Claimant knew what the correct rates were.

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On 10 January 2023, the Claimant was subject to a disciplinary investigation which resulted in the Claimant working for 9.5 hours without a break (see paragraphs 61- 63

141. The Tribunal acknowledges the common practice of not providing notice of disciplinary investigation meetings. Although the ACAS Code of Practice does not require advance notification of investigation meetings, an employer should still act reasonably in conducting such investigation. We consider that the manner in which these investigations were conducted breached the implied term of mutual trust and confidence. The Respondent did not take proper steps to ensure the Claimant’s welfare. It was not reasonable to ambush the Claimant with multiple allegations all put verbally about events that had taken place months before. It was not reasonable to keep her at a very lengthy meeting without an adequate break especially given the Respondent’s policy does not permit the employee to be accompanied. It was not reasonable to make the Claimant then cover a yoga class in the middle of the investigation and falsely record on the meeting notes she had had a break. Proper steps should have been taken to ensure her classes were covered it should not have been incumbent on the Claimant to make those arrangements and in any event she was never even informed that [NAME_19] was supposed to be on stand by.

Not accepting the Claimant’s grievance evidence (witness evidence of two individuals witnessing [NAME_80] bullying the Claimant) as events that could have been portrayed correctly, or was not believed or not taken as credible evidence. The Claimant compares this to how [NAME_80]’ allegations (see §2.1.1.3 above) and evidence from two witnesses (lifeguards) against in her disciplinary, was accepted

142. We did not know who the second witness was said to be but nothing turns on this. This referenced the member complaint. We agree that there was a significant disparity in the treatment of the weight of the evidence against the Claimant and how the member complaint about [NAME_19] was handled. It was not reasonable for [NAME_64] to have accepted [NAME_52]’s hearsay account of what the member had told [NAME_21] at a meeting (for which no notes were taken) over the email the member took the time to send herself regarding [NAME_19]’ behaviour towards the Claimant. The Respondent failed to follow their own policies and procedures on bullying. [NAME_66] had provided direct corroborating evidence of [NAME_19] bullying of the Claimant. The contrast in the way this was treated compared to the disciplinary allegations made against the Claimant were stark, unexplained and troubling.

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The failure to pay the Claimant as set out in the First Claim (1600573/23) and failure to pay the Claimant as set out in the Second Claim (holiday pay and unlawful deduction from wages claim)

143. We conclude below that the Respondent has withheld and or underpaid wages sick pay and holiday pay. The Respondent withheld wages from the Claimant by only paying basic pay follow the disputes over the [NAME_29] causing the Claimant significant financial hardship and stress in trying to resolve matters. The back pay payments do not in our judgment ameliorate this course of conduct. The Respondent were not entitled to unilaterally withdraw payment for the 3 hours per week agreed by [NAME_21] and [NAME_31]. This occurred when [NAME_64] decided that payment would be made to the date of her decision but not beyond, in January 2023.

Annual leave application made on 7 June 2023 by the Claimant in respect of a number of periods of leave (20 June, 11 July, 15 August, 5 September 19 September and 19 December 2023,), was left inactive and refusal of request was delayed to 7 September 2023 by [NAME_80] which was not in accordance with guidelines set out on the [NAME_69] website (paragraphs 91-92)

144. This allegation is proven factually. The reason given by [NAME_19] on the refusal was that the Claimant was on sick leave. The Claimant was entitled to take annual leave during sick leave and therefore if this was the reason that was unreasonable. In any event the Claimant’s position was she was fit for work and we found above that the Respondent had not properly engaged with the Claimant about making reasonable adjustments for her to return to work. It was also unreasonable for [NAME_21] to assert there was no record of annual leave where plainly there was, and then require the Claimant to attend a meeting in the knowledge she was in Germany. The timing of the refusal of leave is suspect, coming only a day after [NAME_21] instructs the Claimant to attend a meeting on 12 September 2023. We consider the leave was not refused for genuine reasons and was of mischievous intent.

Failing to adhere to the Respondent’s sick policy regarding contact timeframes, miscommunication regarding occupational health appointments and failing to provide suitable work for the Claimant, from the date the Claimant commenced her sickness absence on 11 January 2023 (paragraphs 71, 72, 81, 88-90)

145. This was in part upheld by [NAME_15]. The claimant was off sick from 11 January 2023. The only meaningful progress to manage her long term absence was the occupational health report in June 2023 and that was not properly followed up or discussed with the Claimant. The suggestion of online work was dismissed by [NAME_21] out of hand with

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no discussion. The Respondents had been informed since June 2023 there was no fit note and the reasons why.

[NAME_81] arranged a meeting to take place on 12 September 2023 when the Claimant was due to be on annual leave and then failed to attend (paragraphs 92-97)

146. If there was one act by the Respondent that demonstrated the contemptuous manner of the treatment of the Claimant, this was it. To refuse leave requested months earlier, knowing what competing meant to the Claimant, and require her to attend a meeting and then not bother to turn up was contemptuous and wholly unreasonable.

147. Having regard to the above we have concluded the Respondent in a course of conduct fundamentally breached the implied term of mutual trust and confidence entitling the Claimant to treat the contract as at an end. The Claimant resigned in response to the beaches, describing the events on 12 September 2023 as the last straw and reasonably so.

148. We further find that the withholding of wages amounted to a breach of an express term of the contract to pay the Claimant wages. Whilst this was not a specific argument before us, the fact that the Claimant was aware in January 2023 the Respondent were not going to reinstate the three hours pay does not mean in our judgment she affirmed this breach before resigning. The Claimant never actually returned to work under the breached term and remained off sick until she resigned. She continued to object to the breach in the disciplinary and grievance procedures which were not exhausted until mid July 2023. Furthermore given the other fundamental breaches which were not affirmed there can be no question of affirmation in our judgment.

Protected disclosure

149. Did the Claimant make a qualifying disclosure?

150. The findings of fact are at paragraphs 23-30. The Claimant was not asked any questions in cross examination about the disclosure. The Respondent disputed this was a qualifying disclosure and the response asserted that the Claimant had not pleaded an allegation that anyone’s health and safety was endangered nor any public interest.

151. The ET1 had stated as follows:

claim 4- Subjected to a detriment under section 47B of the Employment Rights Act 1996

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After reporting my manager for health and safety concerns, I was subjected to bullying and financial loss as a direct result. I further reported the bullying to which my employer failed to investigate thoroughly and in fact allowed further bullying to occur.

152. The Claimant was ordered to set out further particulars of the detriments (see above) and gave the dates of the investigation and final written warning.

153. We do not accept that the Claimant failed to plead a health and safety related disclosure. It was clearly set out in the claim form. The Claimant is a litigant in person but the pleading is easy to understand. At no time has it been suggested that the Respondent did not understand how the disclosure related to health and safety concerns. If this had been the position it should have been put to the Claimant and it was not.

154. Turning now to examine the disclosure itself. The Claimant told [NAME_40] by email and then on the telephone the MOD fitness report completed by [NAME_19] had not been done correctly and when she raised this with [NAME_19], his response gave her concern. The specifics were that the blood pressure of the individual was such that this person should not have gone on to do the fitness test.

155. In our judgment this was obviously a qualifying disclosure in accordance with the requirements of the Act. The Claimant plainly had a reasonable belief that the health and safety of that individual had been endangered by permitting this person to do a fitness test with elevated blood pressure readings that had been denoted by the Respondent as unsafe to perform the fitness test. Further, given that the Claimant maintained that [NAME_19] refused to accept there was an issue, she must have also reasonably believed the error had the potential to be repeated with other individuals.

156. We have considered whether the Claimant believed at the time she reported these matters to [NAME_41] that the disclosure was in the public interest and whether, if so, that belief was reasonable. It is clear from the Claimant’s actions that whilst at that time she may not have specifically equated this to a legal test of public interest, she believed the disclosure to [NAME_41] was in the public interest. It was not at all self serving; the reason the Claimant made the disclosure was concern the test was not being performed correctly which she believed had put the individual at risk. Further, objectively it must be in the public interest that fitness entry level tests for the armed forces have not been performed correctly for a myriad of common sense reasons.

The detriments

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157. These were alleged to be as follows:

[NAME_80] stopped approving Claimant’s wages when she submitted online timesheets for approval – from 6 June 2022 to the date of termination of the Claimant’s employment;

158. The key issue for this complaint was causation. It is for the Respondent to show the ground on which any act or deliberate failure to act was done, only by showing that the making of the protected disclosure played no part whatsoever in the relevant acts or omissions. The standard of the burden of proof required is if the protected disclosure materially influences (in the sense of more than a trivial influence) the employer’s treatment of a whistle-blower (Fecitt v NHS Manchester [2012] ICR 372).

159. Our findings in respect of the reason [NAME_19] stopped approving the wages can be summarised as follows:

160. The timing of the conduct. The disclosure was made on 21 June 2022. The three hours had been consistently authorised and paid since August 2021 by multiple managers including [NAME_31]. On 30 June 2022 [NAME_19] first sent back the three hours wages on [NAME_26].

161. We took into account that a potential reason was [NAME_19] was new in the role and in training which could explain why he sent it back. This lacked weight when balancing the following:

162. [NAME_19] and [NAME_31] were annoyed with the Claimant for having raised the issue with [NAME_41]. It was telling that [NAME_19] told the Tribunal that [NAME_31] was “not happy with how the Claimant was speaking to me particularly as I was a manager”. This must have been in connection with the qualifying disclosure as it comes within the same sentence in the statement. We accepted the Claimant’s evidence that [NAME_19] was sour with the Claimant and felt that she had gone behind his back or told tales on him effectively and gone above his head.

163. [NAME_19] was instructed not to pay the Claimant by [NAME_31], even though he became aware that [NAME_31] and [NAME_21] had previously been authorising such payments.

164. [NAME_19]’ evidence regarding withholding some of the pay was inconsistent. He told the Claimant at the time that he could withhold just the three hours so at least she would be paid for everything else. When he was asked why in that case all pay apart from basis pay started to be withheld, he said he later realised he was unable to pay anything other than basis pay as the Claimant kept submitting the three hours [NAME_28]. We did not

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accept this for the reasons set out above. We have drawn an inference from the contradictory and unsatisfactory explanations as to why the Respondent started to withhold all pay except basic pay.

165. The Respondent was required to show that the making of the protected disclosure played no part whatsoever in the decision to start withholding the pay. The Respondent has wholly failed to do so. They did not call [NAME_31] as a witness. [NAME_19]’ witness statement was very short (3 pages and 10 paragraphs) and lacked important detail. It dealt with causation in two sentences which included a fresh allegation against the Claimant put for the first time she had submitted [NAME_26] fortnightly to inflate pay.

166. The inaccuracy of [NAME_60]’s witness statement and the false representation to date that he investigated and decided the grievance as well as the admission by [NAME_21] for the first time, contrary to his witness statement, that there had been an agreement to pay the Claimant an additional three hours per week has caused the Tribunal to question the credibility of the Respondent’s evidence. [NAME_21] did not tell the investigating office this in fact he denied it. Nonetheless, the investigation failed to engage with the weight of evidence that there had been an agreement namely the consistent authorisation of the payment for many months.

167. It all leads back to a decision taken by [NAME_31] which [NAME_19] double downed upon despite knowing the Claimant’s position about the previous agreement. [NAME_19] then further doubles down when he started withholding all pay.

168. For these reasons we find the protected disclosure materially influenced the decision to withhold the pay and that the Respondent has not shown that it played no part whatsoever.

169. We go on to consider whether this claim was presented in time. The Respondent did not assert in the amended response that this claim was out of time but it was identified as an issue in Judge Brace’s order. In our judgment the claim was presented in time as the detriment – the withholding of the three hours pay was on ongoing deduction that continued until the Claimant’s termination of employment. Further, the promised review by site did not happen. This combined with the Claimant’s long term sickness does not lead us to conclude that limitation began to run any sooner. This claim succeeds.

[NAME_80] made allegations against you which resulted in a disciplinary process and the Claimant issued with a final written warning. The Claimant is unable to supply the date that [NAME_80] made allegations but the

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Claimant attended an initial disciplinary investigation on 10 January 2023 and received a final written warning on 19 May 2023.

170. During submissions, [NAME_10] submitted that the claim form had asserted the issue was bullying and not the disciplinary itself and the Respondent should not be criticised for not addressing the disciplinary issue. [NAME_10] submitted that the Respondent had understood the detriment to be about the making of the allegations rather then the disciplinary itself.

171. We had no hesitation in rejecting this submission for the following reasons:

a) Both the list of issues drafted by Judge Sharp and Judge Brace had set this out as a detriment and no issue was raised about this until submissions;

b) The Tribunal observed on multiple occasions about the lack of evidence from anyone involved in the disciplinary and at no time did [NAME_10] raise this issue. This was to the extent that the Claimant on many occasions had to preface cross examination questions to a witness with an acknowledgement she had to put the question to that witness as the person who had made the decision had not been called (for example the questions about the policy of mobile phones had to be put to [NAME_15]);

c) The Claimant had provided further particulars about the dates of the investigation and final written warning as instructed – why would she have been ordered to provide this information if it was not understood to be a detriment;

d) The Respondent were fully aware from the resignation letter the Claimant regarding this as detriment.

172. The Respondent did not call anyone to give evidence (nor were there any documents) as to who made the decision to start a disciplinary investigation. Given this was a detriment set out in the list of issues this was a damaging omission by the Respondent and we have had to piece together facts finding from the documents and evidence under cross examination. What we do know is that from mid-October 2022 there were covert investigations into the Claimant’s conduct by [NAME_19], [NAME_52] and [NAME_21]. The allegations that ensued were baseless and any sensible review of the facts surrounding them would have resulted in a reasonable employer not pursuing them.

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173. We have concluded that the decision to investigate the Claimant was materially influenced by the protected disclosure and that the Respondent has not shown that it played no part whatsoever. This claim succeeds for the following reasons:

a) The lack of evidence as to why a disciplinary investigation was deemed appropriate and why;

b) [NAME_19] made most of the allegations and the disclosure created an animus on his and [NAME_31]’s part towards the Claimant. The management team did not like being challenged and closed rank;

c) The timing of the allegations;

d) The baseless nature of the allegations and lack of sensible evaluation of the facts including the fact that most of the allegations emanated from [NAME_19] against which the Claimant had a live grievance of bullying;

e) The mining of complaints against the Claimant;

f) The difference in treatment of the member complaint compared to the allegations that were made against the Claimant.

174. Regarding the actual decision to issue a final written warning, this was taken by [NAME_56] from whom we have not heard. We can do no more than revert to s48 and the burden of proof and categorically conclude that the Respondent wholly failed to show that the protected disclosure did played no part whatsoever in the final written warning. This claim succeeds.

Time limits - Unauthorised deductions

175. Given the number of alleged deductions covering both wages and holiday pay, we firstly set out our conclusions in respect of these complaints before returning to our conclusions on time limits.

First Claim – Unpaid wages for July, August and September 2022

176. See our findings of fact at paragraphs 31-40, 49. The Respondent withheld the agreed 3 hours additional pay from the Claimant’s wages between August to December 2022, and in addition withheld all [NAME_24] and class payments1 paying only basic pay. Although a payment was made at the end of October 2022 there is at least a shortfall of 3.5 hours. We say at least as we have not been provided a breakdown of that payment.

1 Save for September 2022 where the Claimant was paid for 13 hours of classes)

Case Number: 1600573/2023 44

177. The Claimant knew as of 28 December 2022 that [NAME_60] had made a decision to backpay the 3 hours but had decided it was up to the site moving forwards as to whether that pay would continue. She was told this would be reviewed by the site but this did not happen. The 3 hours was never reinstated as can be evidenced by the subsequent wages based on 5 hours basic pay paid to the Claimant until her employment was terminated. The Claimant went off sick shortly after being told the site would review the three hours by [NAME_60]. The Claimant’s subsequent pay between January 2023 and the termination of her employment is set out at paragraphs xx above. To say this was confusing is an understatement. What we can conclude is that until the termination of the Claimant’s employment, the three hours [NAME_28] wages continued to be withheld.

178. First Claim - Holiday pay

June, August, October, November and December 2021, July, August, November and December 2022

179. See findings of fact at paragraphs 8 - 14. We find in favour of the Claimant as the Respondent has not calculated holiday pay in accordance with their own procedure as specified in the [NAME_26] fact sheet. Further, the holiday pay has been depressed as it was not paid on the 8 hours per week but on 5 hours. The Respondent has failed to provide proper records, evidence or documents setting out how the holiday pay has been calculated whereas the Claimant has maintained records and provided cogent calculations.

180. Second claim – Holiday Pay (Working Time Regulations 1998)

181. See findings of fact at paragraphs 104-108. The Claimant has been underpaid holiday pay on the termination of her employment as her pay during the twelve months preceding termination had been unlawfully withheld and also because of an unlawful detriment. This claim succeeds.

182. Second Claim - Unauthorised deductions

183. This claim is in respect of sick pay. See findings of fact at paragraphs 6-7 and 98-107.

184. [NAME_10] submitted that the Tribunal did not have jurisdiction to hear this complaint pursuant to Sarti (Sauchiehall St) Ltd v Polito [2008] ICR. In this case, the Claimant was absent from work and alleged to have been working elsewhere. The employer refused to pay him statutory sick pay without authorisation from the then benefits agency and the Claimant brought a claim under s13 ERA 1996. The EAT held that whether a sum claimed to have been unlawfully deducted was SSP depended on the social

Case Number: 1600573/2023 45

security legislation relating to entitlement, jurisdiction lay with HMRC. The Tribunal considered [COMPANY_83] (trading as Plan Personnel) v Timmons [2004] IRLR 180 which distinguishes claims where a Respondent admits an employee is entitled to SSP but is withholding it which is precisely the situation in this claim. We do not consider the fact that the Respondent latterly asserted the Claimant was not entitled to SSP as her earnings had fallen below the lower threshold to take this case out of the ET jurisdiction. As the facts show, the reason the Claimant’s earnings fell below the threshold was because of unlawful deductions and detriment. But for the unlawful deduction from wages and unlawful detriment the Claimant had met the threshold for SSP. It dropped below the threshold when the Respondent started to withhold all but basis pay even where the Claimant had undertaken [NAME_24] sessions and classes. Had this not happened, the Claimant’s company sick pay would have been higher and she would have qualified for SSP.

For these reasons the claim succeeds.

185. Of general application we have concluded that that the Claimant was paid holiday pay and sick pay based on 5 hours per week whereas we have concluded her contract was varied so as to include a term that she would receive 8 hours per week. This will be relevant to [NAME_25].

186. Under s23 ERA 1996 we have considered the limitation date for the wages and holiday pay claims. In our judgment the facts have now shown both to be ongoing deductions particularly in respect of the way in which holiday pay was calculated. As the second claim was presented within the required time frame from the last of a series of deductions the claims are not out of time.

187. Even if they had been we would have had no hesitation that concluding it was not reasonably practicable to have presented the claim sooner because the Respondent did not provide payslips that were capable of being understood.

188. Lastly the Tribunal acknowledges this is a very lengthy judgment because of the multiple complaints that had to be determined as well as the factual disputes.

Approved by Employment Judge S Moore

Dated: 15 August 2025

REASONS SENT TO THE PARTIES ON

Case Number: 1600573/2023 46

22 August 2025

[NAME_85]

FOR THE SECRETARY OF EMPLOYMENT TRIBUNALS

Case Number: 1600573/2023 47

Appendix 1

Agreed List of Issues (Judge Brace CMO 27.9.24)

The Issues

1. The issues the Tribunal will decide are set out below.

189. Time limits

First Claim

- Given the date the First Claim form was presented and the dates of early conciliation, any complaint about something that happened before 6 October 2023 may not have been brought in time.

- Was the unauthorised deductions complaints made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide:

(1) Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made?

(2) If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

(3) If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

(4) If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

Second Claim

- Given the date the Second Claim form was presented and the dates of early conciliation, any complaint about something that happened before 2 August 2023 may not have been brought in time.

- Was the detriment complaint made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide:

Case Number: 1600573/2023 48

(1) Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of?

(2) If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

190. Unfair dismissal

- Was the Claimant dismissed?

(1) Did the Respondent do the following things:

(a) [NAME_80] stopped approving the Claimant’s wages when she submitted online timesheets for approval – from 6 June 2022 to the date of termination of the Claimant’s employment;

(b) The conduct of [NAME_80] complained of by the Claimant in her grievances of 27 October 2022 and 4 April 2023;

(c) [NAME_80] made allegations against the Claimant which resulted in a disciplinary process and the Claimant issued with a final written warning. The Claimant is unable to supply the date that [NAME_80] made allegations but the Claimant attended an initial disciplinary investigation on 10 January 2023 and received a final written warning on 19 May 2023.

(d) On 10 January 2023, the Claimant was subject to a disciplinary investigation which resulted in the Claimant working for 9.5 hours without a break;

(e) Not accepting the Claimant’s grievance evidence (witness evidence of two individuals witnessing [NAME_80] bullying the Claimant) as events that could have been portrayed correctly, or was not

Case Number: 1600573/2023 49

believed or not taken as credible evidence. The Claimant compares this to how [NAME_80]’ allegations (see §2.1.1.3 above) and evidence from two witnesses (lifeguards) against in her disciplinary, was accepted.

(f) The failure to pay the Claimant as set out in the First Claim (1600573/23) and failure to pay the Claimant as set out in the Second Claim (holiday pay and unlawful deduction from wages claim);

(g) Annual leave application made on 7 June 2023 by the Claimant in respect of a number of periods of leave (20 June, 11 July, 15 August, 5 September 19 September and 19 December 2023,), was left inactive and refusal of request was delayed to 7 September 2023 by [NAME_80] which was not in accordance with guidelines set out on the [NAME_69] website;

(h) Failing to adhere to the Respondent’s sick policy regarding contact timeframes, miscommunication regarding occupational health appointments and failing to provide suitable work for the Claimant, from the date the Claimant commenced her sickness absence on 11 January 2023;

(i) [NAME_81] arranged a meeting to take place on 12 September 2023 when the Claimant was due to be on annual leave and then failed to attend;

(2) Did that breach the implied term of trust and confidence? The Tribunal will need to decide:

(a) whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and

(b) whether it had reasonable and proper cause for doing so.

(3) Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end.

Case Number: 1600573/2023 50

(4) Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

(5) Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

- If the Claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?

- Was it a potentially fair reason?

- Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant?

- The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.

- Was the reason or principal reason for dismissal that the Claimant made a protected disclosure?

If so, the Claimant will be regarded as unfairly dismissed.

191. [NAME_25] for unfair dismissal

- Does the Claimant wish to be reinstated to their previous employment?

- Does the Claimant wish to be re-engaged to comparable employment or other suitable employment?

- Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

- Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

- What should the terms of the re-engagement order be?

Case Number: 1600573/2023 51

- If there is a compensatory award, how much should it be? The Tribunal will decide: (1) What financial losses has the dismissal caused the Claimant? (2) Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? (3) If not, for what period of loss should the Claimant be compensated? (4) Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? (5) If so, should the Claimant’s compensation be reduced? By how much? (6) Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? (7) Did the Respondent or the Claimant unreasonably fail to comply with it? (8) If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%? (9) If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? (10) If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion? (11) Does the statutory cap of fifty-two weeks’ pay or £105,404 apply?

- What basic award is payable to the Claimant, if any?

- Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?

192. Protected disclosure

Case Number: 1600573/2023 52

- Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:

(1) What did the Claimant say or write? When? To whom? The Claimant says they made disclosures on these occasions:

(a) 21 June 2022 – the Claimant told [NAME_37] that [NAME_80] was incorrectly completing MOD testing (pre-joining tests for the Ministry of Defence)?

(2) Did they disclose information? (3) Did they believe the disclosure of information was made in the public interest? (4) Was that belief reasonable? (5) Did they believe it tended to show that:

(a) the health or safety of any individual had been, was being or was likely to be endangered; (6) Was that belief reasonable?

- If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to the Claimant’s employer.

193. Detriment (Employment Rights Act 1996 section 48)

- Did the Respondent do the following things:

(1) [NAME_80] stopped approving Claimant’s wages when she submitted online timesheets for approval – from 6 June 2022 to the date of termination of the Claimant’s employment;

(2) [NAME_80] made allegations against you which resulted in a disciplinary process and the Claimant issued with a final written warning. The Claimant is unable to supply the date that [NAME_80] made allegations but the Claimant attended an initial disciplinary investigation on 10 January 2023 and received a final written warning on 19 May 2023.

Case Number: 1600573/2023 53

- By doing so, did it subject the Claimant to detriment?

- If so, was it done on the ground that they made a protected disclosure?

194. [NAME_25] for Protected Disclosure Detriment

- What financial losses has the detrimental treatment caused the Claimant?

- Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

- If not, for what period of loss should the Claimant be compensated?

- What injury to feelings has the detrimental treatment caused the Claimant and how much compensation should be awarded for that?

- Has the detrimental treatment caused the Claimant personal injury and how much compensation should be awarded for that?

- Is it just and equitable to award the Claimant other compensation?

- Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

- Did the Respondent or the Claimant unreasonably fail to comply with it?

- If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

- Did the Claimant cause or contribute to the detrimental treatment by their own actions and if so, would it be just and equitable to reduce the Claimant’s compensation? By what proportion?

- Was the protected disclosure made in good faith?

- If not, is it just and equitable to reduce the Claimant’s compensation? By what proportion, up to 25%?

195. [NAME_25] for discrimination

- Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

Case Number: 1600573/2023 54

- What financial losses has the discrimination caused the Claimant?

- Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

- What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

- Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

- Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

- If so, is it just and equitable to increase or decrease any award payable to the Claimant?

- By what proportion, up to 25%?

- Should interest be awarded? How much?

196. First Claim - Unauthorised deductions

- Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted?

Wages: Classes, hours worked and personal training

(1) Were the wages paid to the Claimant on July 2022, August 2022 and September 2022 less than the wages they should have been paid?

(2) Was any deduction required or authorised by statute?

(3) Was any deduction required or authorised by a written term of the contract?

Case Number: 1600573/2023 55

(4) Did the Claimant have a copy of the contract or written notice of the contract term before the deduction was made?

(5) Did the Claimant agree in writing to the deduction before it was made?

(6) How much is the Claimant owed?

Holiday pay

(7) Was the holiday pay, paid to the Claimant in:

(a) June, August, October, November and December 2021; and;

(b) July, August, November and December 2022

less than the holiday pay they should have been paid?

(8) How much leave had accrued by each date of annual leave taken?

(9) Were any days carried over from previous holiday years?

(10) What is the Claimant’s entitlement to annual leave?

(11) What is the relevant daily rate of pay?

(12) How much is the Claimant owed?

197. Second Claim - Holiday Pay (Working Time Regulations 1998)

- Did the Respondent fail to pay the Claimant for annual leave the Claimant had accrued but not taken when their employment ended? The Claimant has confirmed that the claim is for £1,738.70 as set out in the further and better particulars.

198. Second Claim - Unauthorised deductions

- Did the Respondent make unauthorised deductions from the Claimant’s wages and if so, how much was deducted? The claim in respect of sick pay covers the period between 11 Jan – 19 Sept 23.

Case Number: 1600573/2023 56

- The Claimant calculates this as £2,136.92 (being SSP at the daily rate of £15.63 over 251 days (£3,923.13) less sick pay actually received of £1,786.21).

- The Claimant is also claiming £1738.70 for 2023 holiday pay as an alternative to the holiday pay claim above.

199. [NAME_25] much should the Claimant be awarded?

- Is it just and equitable to increase or decrease any award payable to the Claimant?

- By what proportion, up to 25%?

- When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars?

- If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.

- Would it be just and equitable to award four weeks’ pay?

Case Number: 1603104/2023 1600573/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Cardiff On: 18 and 19 February 2026

Before:

Members: Employment Judge S [NAME_8]

[NAME_6]:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT having been sent to the parties on 16 March 2026 and reasons having been requested by the respondent in accordance with Rule 60 of the Rules of Procedure 2024:

REASONS

1. Judgment on liability was promulgated on 11 August 2025, with written reasons provided on 22 August 2025. The Claimant succeeded in the following complaints: a) Unauthorised deductions from wages; b) Holiday pay;

Case Number: 1603104/2023 1600573/2023

2 c) Unfair dismissal contrary to s98 and s103A Employment Rights Act; d) Detriment for making protected disclosures.

2. A preliminary hearing for case management took place on 3 October 2025 and orders were made to progress to the [NAME_25] hearing. The Respondent failed to comply with most of those orders and a separate judgment has been issued awarding the Claimant a preparation time order in respect of the Respondent’s conduct and failures to comply with case management orders.

3. In respect of the [NAME_25] hearing, the Tribunal had two bundles of documents. The Claimant had to prepare an additional bundle for the [NAME_25] hearing because the Respondent failed to comply with Tribunal orders and the bundle that was produced very late was missing some of the Claimant’s disclosure. We heard evidence from the Claimant only. The Respondent did not call any witnesses.

4. The Claimant prepared a detailed schedule of loss dated 3 October 2025, updated on 31 January 2026. It was 8 pages long and contained records of her working time in respect of the periods of holiday pay that had not been paid.

5. The Respondent had been ordered to file a counter schedule of loss detailed with rationale and calculations no later than 31 October 2025. The importance of this counter schedule had been addressed in the case management orders given the difficulties the Tribunal had in understanding the Respondent’s calculations expressed in the liability judgment. This was eventually provided on 26 November 2025.

Findings of fact

6. In the 52 week’s preceding the termination, the claimant’s annual variable pay was £23,253.36. In addition her annual salary was £2,610.48. The total calculation also needed to include the additional three hours per week she should have been paid @£10.04 per hour = £30.12 x 52 = £1566.24. These amounts total £27,430.08 or £527.50 per week (gross) and £441.73 net.

7. The Claimant received benefits of gym membership, pension and health scheme whilst employed with the respondent. The gym membership benefit covered the claimant plus one. The Claimant produced evidence that the monthly cost for an equivalent membership (the respondent’s current fees) amounted to £150 but claimed £145.00 as she had paid £5 per month towards the benefit.

Case Number: 1603104/2023 1600573/2023

3 8. The claimant produced evidence for the cost of an equivalent health benefit scheme of £47.31 per month, by way of a quote from [NAME_91].

9. The respondent’s annual pension contribution for 2023 as confirmed in the pension statement from [NAME_92] was £451.09. This was the only head of claim agreed by the Respondent.

10. The Claimant was (constructively) dismissed with effect from 19 September 2023 aged 27 with 8 year’s continuous service.

11. Since 11 January 2023 the Claimant had been off sick. Initially she had obtained fit notes from her GP citing work related stress or stress and anxiety and stress and depression. From 23 March 2023 the Claimant avoided obtaining medical certificates further due to the impact this had on her ambitions to join military service. The claimant had been rejected from the army reserves in January 2023 due to her work related stress history.

12. The Claimant joined the [NAME_93] with effect from 20 June 2025 having had to appeal an initial rejection for private reasons not relevant to these proceedings.

13. The Claimant has always had her own self-employed personal training small business with clients outside of her work done with the Respondent. This work was mainly online but the Claimant had the use of a studio which she borrowed from a friend. The claimant paid her friend a fee of £5 or did other voluntary work to assist her friend with her business. She was not paid wages or other monies by her friend in any capacity.

14. The impact of the events that led to her constructive dismissal resulted in the claimant suffering from mental and emotional exhaustion at the point that she terminated her employment and this continued for some time after, impacting on her ability to look for work.

15. The Claimant decided after her dismissal to expand on her personal training business. She particularly wanted to go fully self-employed rather than seek employment. The claimant’s evidence, which we accepted was that she felt that being self employed would be a safe space for her given her experiences with the Respondent around payments, variable payments, disciplinary and other management based issues. She did not want to or feel able at this time to return to a corporate gym environment and given what had happened during her employment with the Respondent we find this was a reasonable step to take towards mitigating her loss.

16. The claimant applied for a government based grant to open a small fitness studio in November 2023 and thereafter worked on that project working towards its opening. Between February to April 2024 the claimant worked

Case Number: 1603104/2023 1600573/2023

4 on building regulation approval and design compliance. Between May – September 2024 the Claimant oversaw the construction and fit out of the studio. Between September – December 2024 she worked on fire safety and operational licensing compliance. The final grant funds were released in January 2025 and classes commenced along with marketing between February – April 2025.

17. The Claimant did not pursue separate part-time work as the establishment of the studio took all of her efforts. This involved obtaining the grant, opening the premises. The Claimant had referred to being financially supported by her parents. This was not in relation to her parents giving the Claimant any sort of money or income, but in terms of her parents providing her with somewhere to live and feeding the Claimant.

18. A condition of the grant was that as it was intended to lead to a full time salary, the Claimant was not permitted to work elsewhere.

19. In April 2025 or around that time, the Claimant learned that access to the premises was withdrawn. This was not of the Claimant’s making but something to do with the landlord and the building. This meant that the use of the studio could not continue. The Respondent submitted that that amounted to a novus actus; an act that broke the chain in causation and as such the Respondent should not be liable for any losses.

20. Around this time in April 2025 the Claimant had filled in an online enquiry for a new gym that was opening in Bridgend. The Claimant had particularly felt able to apply for a salaried role because there would not be the potential for a repeat of the issues she had experienced with withheld payments for training and classes by the Respondent. She was informed that all of the employed roles were no longer available and was offered an opportunity to be self-employed but this required the Claimant to pay the gym £500 per month, presumably for the benefit of using the gym facilities in which to train clients. The Claimant would be expected to recruit these clients. This was not financially viable for the Claimant. She already had her own personal training client base for either online appointments and a studio she could use. It did not make any sense for her to therefore have to pay a corporate entity £500 notwithstanding she had potential to build a client base. That was a significant financial outlay that the Claimant was not in a position to take at that time, particularly given the recent failure of the business.

21. The Claimant, via the Job Centre, came across a retraining opportunity to become a Google IT Support Professional and she enrolled on the course in mid-August 2025. The Claimant was impressed by the adverts for the role within the Job Centre which stated that the qualification could lead to entry level career in IT within 3 to 6 months. She diligently studied for the course

Case Number: 1603104/2023 1600573/2023

5 and passed it but was later proved unable to secure roles in IT having discovered that even entry roles were now requiring degree level education.

22. On or around September/October 2025, the Claimant also took steps to explore becoming a self-employed courier for [NAME_95]. After enquiries and investigations the Claimant established she had to use her own vehicle for the courier business. At this time the clutch required replacing and the claimant decided courier work was not financially viable or sustainable.

23. Since the order for disclosure which was supposed to have taken place on 14 November 2025, the Claimant has now secured a role, subject to DBS checks, which is a zero hour contract as a sports coach with a Local Authority. This is a promising role which the Claimant believes will develop into more regular hours and the Claimant thinks she will be in a position to match her salary with the Respondent by end of June 2026. Between the effective date of termination, the [NAME_25] hearing and then and 1 June 2026 there are 141 weeks.

24. The Respondent had included some job advertisements in the bundle and a print out of vacancies on [NAME_96]. None of the documents were dated and there was no other information about the roles as to when the vacancies would have been available. Some of the jobs were in locations which would have required the Claimant to relocate, such as Exeter, Leeds and London. Most of the jobs were also corporate gym based roles which the Claimant has told the Tribunal she did not feel ready or able to return to until recently.

25. We did not have any evidence by way of a witness statement from the Respondent introducing these roles or explaining to the Tribunal what other jobs the Claimant should have applied for or been suitable for.

26. The sums earned via mitigation to the date of the [NAME_25] hearing. All verified by the Claimant’s tax returns were as follows:

• Tax year 2023 – 2024 - £3427

• Tax year 2024 – 2025 - -£4528 (loss)

• Tax year 2025 – 2026 - £1805.00

• Total - £749.72

• Pay received from [NAME_94] - £720.95 gross, £578.95 net.

• Total earnings from date of dismissal to [NAME_25] hearing - £1328.67 (net).

Case Number: 1603104/2023 1600573/2023

6 Injury to feelings – protected disclosure detriments

Withholding of pay

27. Pay was withheld from the Claimant from June 2022 until the effective date of termination. The Claimant raised a grievance about this in October 2022 and April 2023. See liability judgment.

28. When the Claimant tried to raise the issue, she felt dismissed and blamed. This caused enormous stress, as she was struggling financially and beginning to question her security at work. The Claimant remembers feeling increasingly anxious about speaking up. The environment had become intimidating and unpredictable. She began internalising the stress, suffering sleepless nights, headaches, and a constant sense of dread before each shift. The Claimant found herself rehearsing every conversation in her head, fearful that anything she said might be turned against her.

29. By October 2022, the situation had deteriorated to the point where she could no longer ignore it. Her mental health was suffering, her confidence had dropped, and she felt completely unsupported. She raised a grievance and in that grievance recorded the impact of the withholding of wages (see paragraph 41 of the liability judgment). The ongoing uncertainty and mistreatment was affecting the Claimant’s mental health, making her uncomfortable at work and was being subjected to unfair behaviour. At this point the Claimant realised the situation was harming her wellbeing and felt frightened.

30. Following the Tribunal’s findings about the failings with both grievances, the Claimant has found these shortcomings deeply painful in particular the circumstances described at paragraph 142 of the liability judgment.

Allegations made against the claimant which resulted in a final written warning.

31. The Tribunal has been careful to set out evidence about the claimant’s injury to feelings in relation to the detriments only where possible. This is because not all of the matters relied upon for the constructive automatic unfair dismissal were relied upon as detriments, but there were a number of overlaying matters which would have impacted on the Claimant’s injury to feelings such as the grievance investigation and outcome into both detriments.

32. The findings of the Tribunal reflected behaviour that was deliberate, targeted and sustained over a long period. The mis-treatment was a pattern

Case Number: 1603104/2023 1600573/2023

7 of retaliatory conduct lasting over 15 months which progressively eroded the Claimant’s wellbeing, professional standing and financial security.

33. The period of sustained withholding of wages caused the Claimant financial hardship and the ongoing grievance and disciplinary processes left her emotionally exhausted, medically unwell and increasingly isolated within the workplace. The Claimant described the impact on her as severe and enduring. She describes a loss of employment of 8 years on which she had built her professional identity and reputation. She felt unheard and disbelieved. The work related stress resulted in her medical rejection from Army Reserve which was a long standing career aspiration and that she experienced ongoing loss of trust, anxiety, disrupted sleep, heightened sensitivity to authority in workplace interactions. This has left a lasting mark on both her mental health and professional confidence.

The Law

34. Section 49 ERA 1996 provides:

49 Remedies (1) Where an [employment tribunal] finds a complaint [under section 48(1), (1ZA), (1A) or (1B)] well-founded, the tribunal— (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates. ….. (2) [Subject to [subsections (5A) and (6)]] The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to— (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the act, or failure to act, which infringed the complainant's right. (3) The loss shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and (b) loss of any benefit which he might reasonably be expected to have had but for that act or failure to act. (4) In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

35. Section 123 ERA 1996 provides:

123 Compensatory award

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8 (1) Subject to the provisions of this section and sections 124[, 124A and 126], the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (2) The loss referred to in subsection (1) shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. …….. (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

36. The statutory cap under S124 is disapplied in claims brought under S103A.

37. The Claimant is under a duty to mitigate her loss and the burden of proof is on the respondent to show the claimant has failed to mitigate his loss. Ministry of Defence v Cannock [1994] ICR 918 and Wilding v British Telecommunications Plc [2002] ICR 1079. The aim is that ‘as best as money can do it, the applicant must be put into the position she [or he] would have been in but for the unlawful conduct’ ([NAME_97]), which is also authority for the principle that the Tribunal should not simply make calculations under different heads and then add them up. A sense of due proportion is required and to look at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed ( per Morison J at para 132).

38. Cooper Contracting Ltd v Lindsey UKEAT/184/15 sets out the steps a Tribunal should take when approaching the issue of mitigation. The burden of proof is on the respondent at all times. The Tribunal should consider (a) what steps was it unreasonable for the claimant not to have taken? (b) when would those steps have produced an alternative income? (c) What amount of alternative income would have been earned (Edward v Tavistock & Portman NHS Foundation Trust [2023] IRLR 463).

39. Awards must be purely compensatory and not penal.

40. In Virgo Fidelis Senior School v Boyle [2004] IRLR 268 the EAT held that a protected disclosure detriments is a form of discrimination and it is appropriate to apply [NAME_98] guidelines.

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9 41. Guidance on assessment of compensation in injury to feelings is contained in [NAME_98] v [NAME_77] of West Yorkshire Police (No2) [2003] ICR 318. There are three bands. The top band (£33,700 to 56,200) is for the most serious cases where there has been a lengthy campaign of discriminatory harassment. The middle band (£11,200 to 33,700) is for serious cases that do not merit an award in the highest band. The lower band (£1,100 to 11,200) is for less serious cases such as a one off incident or an isolated occurrence. The Claimant’s whistleblowing claim (the second claim 1603104/2025) was presented on 18 December 2023 and as such the bands to be applied are in the sixth addendum to the Presidential Guidance Employment Tribunal Awards for injury to feelings.

42. [NAME_97] is also authority for the principle that the Tribunal should not simply make calculations under different heads, and then add them up. A sense of due proportion is required and to look at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed ( per Morison J at para 132).

43. Aggravated damages can be awarded where aggravating features have increased the impact of the discriminatory act on the Claimant. Underhill P in Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT cites the phrase ‘high-handed, malicious, insulting or oppressive’ behaviour’. Subsequent conduct such as conducting the trial in an unnecessarily oppressive manner, failing to apologise, or failing to treat the complaint with the requisite seriousness can also give rise to aggravated damages.

44. Prison Service and Others v Johnson [1997] ICR 725 provided the following guidance when assessing discrimination awards; such awards were compensatory and should be just to both parties, compensating fully without punishing the tortfeasors while not so low as would diminish respect for the policy of the anti-discriminatory legislation; that awards should bear some broad general similarity to the range of awards in personal injury cases and in exercising their discretion tribunals should remind themselves of the value in everyday life of the sum they had in mind by reference to purchasing power or earnings and should bear in mind the need for public respect for the level of awards made.

45. [NAME_99] did not pursue reliance on [NAME_100] v [COMPANY_123] [2006] IRLR 756 which the respondent had asserted was authority that as the claimant had not purchased gym membership or health care she could not recover the loss of the benefit.

S207 TULRCA – Acas uplift

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10

46. s207A Effect of failure to comply with Code: adjustment of awards provides:

(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.

(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b) the employer has failed to comply with that Code in relation to that matter, and (c) that failure was unreasonable,

the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

47. In Slade v Biggs [2022] IRLR 216 the EAT reviewed the authorities on the adjustments of awards under s207A TULCRA. The Tribunal should consider the following questions:

''i) Is the case such as to make it just and equitable to award any ACAS uplift?

ii) If so, what does the ET consider a just and equitable percentage, not exceeding although possibly equalling, 25%?

Any uplift must reflect “all the circumstances”, including the seriousness and/or motivation for the breach, which the ET will be able to assess against the usual range of cases using its expertise and experience as a specialist tribunal. It is not necessary to apply, in addition to the question of seriousness, a test of exceptionality.

iii) Does the uplift overlap, or potentially overlap, with other general awards, such as injury to feelings; and, if so, what in the ET's judgment is the appropriate adjustment, if any, to the percentage of those awards in order to avoid double-counting?

This question must and no doubt will be answered using the ET's common sense and good judgment having regard to the final outcome. It cannot, in the nature of things, be a mathematical exercise. The EAT must be reluctant to second guess the ET's decision either to adjust or not adjust the percentage in this respect, or the amount of any adjustment, because it is quintessentially an exercise of judgment on facts which can never be as fully apparent on

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11 appeal as they were to the fact-finding tribunal. The EAT will certainly not substitute its own view for the judgment of the ET in the absence of an obvious error.

iv) Applying a final sense-check, is the sum of money represented by the application of the percentage uplift arrived at by the ET disproportionate in absolute terms and, if so, what further adjustment needs to be made?

Whilst wholly disproportionate sums must be scaled down, the statutory question is the percentage uplift which is “just and equitable in all the circumstances”, and those who pay large sums should not inevitably be given the benefit of a non-statutory ceiling which has no application to smaller claims. Nor should there be reference to past cases in order to identify some numerical threshold beyond which the percentage has to be further modified. That would cramp the broad discretion given to the ET, undesirably complicate assessment of what is “just and equitable” by reference to caselaw and introduce a new element of capping into the statute which Parliament has not suggested.''

48. It is not proportionate to set out the entirety of the Acas Code of Practice on disciplinary and grievance procedures. The relevant sections are as follows:

49. Employment Tribunals will take the size and resources of an employer into account when deciding on relevant cases.

Paragraph 4 of the Code provides:

“whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. There are a number of elements to this: Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Employers and employees should act consistently. Employers should carry out any necessary investigations, to establish the facts of the case. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. Employers should allow an employee to appeal against any formal decision made.”

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12 50. In summary, the grievance procedure provides that the employer must hold a meeting with the employee to discuss the grievance, allow them to be accompanied, decide on appropriate action and provide the right to appeal.

51. In summary the disciplinary procedure provides that it is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay and establish the facts, the employee should be informed of the disciplinary case to answer in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.

52. Disciplinary meeting should be held without unreasonable delay with the right to be accompanied. At the meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.

53. The employer must the decide on appropriate action and provide the right to appeal.

Conclusions

Mitigation

54. The Respondent’s counter schedule of loss submitted that the Claimant should receive no compensatory loss whatsoever. The extent of the reason for this submission was that the Claimant had stated that she had been financially supported by her parents, which allowed her to prioritise both her mental health recovery and long-term efforts to return to work. This was not a reasonable basis on which to make such a submission particularly as no evidence was led on mitigation by the Respondent.

55. The burden of proof is on the Respondent to prove that the Claimant has failed to mitigate her loss. The documents included in the bundle by the Respondent (see paragraph 24) were of little or no assistance. There was no witness called. It was also not an unreasonable step for the Claimant, who had no income, lived with her parents and relied on them for housing

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13 and food, to not consider applying for vacancies in locations such as Leeds, Exeter or London in order to mitigate her loss. The Respondent has wholly failed to discharge the burden of proof.

56. Further and in the alternative, in any event, we do not agree that the Claimant has failed to mitigate her loss for the following reasons:

57. The Claimant has produced significant cogent evidence on the steps that she had taken to mitigate her loss (see paragraphs 12 - 23 above). After her constructive unfair dismissal, it was a reasonable step to pursue and focus on an already established self-employed career in her longstanding profession and passion which was sport and fitness. The Claimant took reasonable steps to obtain funding to open her own gym and comply with grant conditions with the aim of supporting herself in a full time salary. It was, given the Respondent’s treatment of the Claimant, reasonable for the Claimant to have developed a level of distrust for corporate gym environment and the possible variations in pay that she would experience if she went back to that environment.

58. After the failure of the gym, the Claimant also took reasonable steps to look for alternative work. She had been vigorously pursuing a career in the military and to her credit was successful by June 2025. She was also applying for other jobs and considering self employed courier work. We also consider that given all the circumstances the efforts to secure and build a self-employed role in her chosen profession that did not succeed, it was a reasonable step to pursue the IT role. The Claimant relied on information from the Job Centre in the advertisement that it could lead to a career level entry in IT. She was not to know, and we do not think she can be criticised for what has happened in respect of those entry jobs with the impact of AI which are now requiring degree level educational standards.

59. As of the [NAME_25] hearing the Claimant has secured employment albeit on a zero hours contract and does not pursue loss beyond June 2026.

60.

For these reasons and in these circumstances we conclude the Claimant has taken reasonable steps to mitigate her loss and should be awarded loss of earnings and benefits of gym, pension and health scheme until June 2026 which is the date by which, but for the unlawful acts of the Respondent, the Claimant will be back in the same position financially. This is a period of 141 weeks from the effective date of termination.

Intervening acts / chain of causation

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14 61. We do not consider that the closure of the building that housed the Claimant’s grant funded studio acted as an intervening act which broke the chain of causation for the following reasons.

62. The Tribunal must in these circumstances use a common sense assessment of facts to decide whether there has been this break in chain of causation and the act must be the sole and effective cause of the loss, such that any prior wrongdoing has been eclipsed. This plainly does not apply in this case.

63. The closure of the premises was beyond the Claimant’s control. It is akin to the Claimant losing a job in another type of gym environment and that job came to an end because the business did not succeed. This factor cannot amount to a break in the chain of causation.

Injury to Feelings

64. The Claimant sought an award in the top [NAME_101]. The Respondent asserted the award was middle band. We agree with [NAME_99] that the injury to feelings only applies in respect of the detriments. These are set out in paragraphs 157-174 of the liability judgment. The first was, in summary, the deliberate withholding of the wages which pushed the Claimant into significant financial hardship and led to her having to raise multiple issues with the Respondents between the period June 2022 and September 2023 when she resigned. The second detriment was the false or exaggerated / unreasonable allegations made which pushed the Claimant into a disciplinary process resulting in a final written warning.

65. The Tribunal also agrees that the injury to feelings must be assessed having regard to those detriments and they are narrower than the cumulative breaches for the constructive unfair dismissal claim.

66. We do not agree that the Claimant’s resilience and robustness should in any way detract from how these matters have impacted on her.

67. See findings of fact in the liability judgment at and also paragraphs 33 - 39 above. The detriments caused a high level of hurt, injured feelings on the part of the Claimant. They were sustained and have aggravating features and the detriments were targeted in a retaliatory manner over a long period. Having regard to the guidance in [NAME_98] we have consider that the appropriate award for the injury to feelings is the top band, placed in the middle of that top band and assess these at £33,700.

ACAS uplift

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15 68. The findings of fact and conclusions regarding both the disciplinary and the grievance procedure are in the liability judgment at paragraphs 41, 62- 87, 89, 136- 142.

69. We agree that the Respondent carried out the “mechanics” of a disciplinary and grievance procedure. In our judgment, we cannot take into account what happened at the investigation meeting as the ACAS Code does not address welfare related matters which were the issues experienced by the Claimant at the investigatory meeting.

70. The Respondent complied with both codes so far as conducting an investigation, arranging grievance and disciplinary hearings, the right to be accompanied and the right to an appeal. As such there has not been a wholescale failure meaning a 25% uplift would not be just and equitable.

71. In our judgment whilst the “mechanics” of the Code were complied with, the spirit of it was not. In particular paragraph 4 of the code described above. We are not conflating [NAME_58]’s false assertion that he had undertaken investigations in the grievance process with a breach in the Code. There were other significant breaches in relation to the requirement to carry out necessary investigations to establish facts as follows:

72. Paragraph 79 of the liability judgment we found that [NAME_64]’s investigation failed to properly evaluate the evidence and drew unreasonable conclusions. Paragraph 80 sets out the more minor shortcomings in [NAME_15]’s investigations.

73. In relation to the disciplinary process, at paragraph 86 and 87 we set out the findings regarding the failure to properly assess the evidence during the process. We concluded at paragraph 139 “if an employer is going to discipline an employee for breaching a rule or a policy it is reasonable to assume that the said policy is published or communicated to employees” and it had not been. Further we found the allegation that the claimant had used the wrong class rates for financial gain to be “a most perplexing course of conduct and wholly unreasonable”.

74. For these reasons we find that it is just and equitable to adjust the compensation by an uplift of 10% to reflect the shortcomings outlined above in compliance with the relevant codes of practice.

Wages and holiday pay claims

75. In paragraph 40 of the liability judgment we set out circumstances regarding a payment made to the Claimant in October 2022. The Respondent had asserted in the Counter Schedule that this payment was a back dated payment for the wages the Claimant was seeking for unpaid classes and

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16 [NAME_24] sessions from June, July and August 2022 contrary to the findings of the Tribunal. That payment was her normal top up pay for work that she performed in October 2022.

76. The Tribunal has not been assisted by the Respondent during these proceedings in terms of figures and calculations despite given multiple opportunities to set out their figures. The order to provide a breakdown for the December 2022 payment remains in breach with no such breakdown provided. On the other hand the Claimant has provided meticulous cogent pay records and breakdown showing exact calculations.

For these reasons we have accepted the Claimant’s figures.

77. We accepted that the Respondents position on the SSP calculations that the Claimant had used incorrect rates and therefore make the award on the basis of the calculations the Respondent had provided.

78. In terms of the holiday pay, it was asserted that payments made for holiday in December 2023 should be given credit for the Claimant’s holiday pay claim which covered periods in 2021, 2022 and 2023. Again we did not have a breakdown of the calculations from the Respondent. There was evidently some sort of payment for holiday pay in 2023 but in the absence of any calculations from the Respondent we have decided to accept the Claimant’s figures which were set out in the Schedule of Loss as well as detailed breakdown calculation accompanying that Schedule of Loss setting out all of the days in which the Claimant had worked, how many hours she had worked, going back as far as 2021 and how she calculated the holiday using the government guidance.

79. The Tribunal acknowledges this is a significant sum of money awarded to the Claimant and that we have performed the exercise of considering and applying a sense of due proportion. We have looked at the individual components of any award and the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed.

80. The draft interest and grossing up calculations were sent to the parties for comments. No such comments were received.

81. The portion above £30,000 requires to be grossed up in accordance with section 401 of the Income Tax (Earnings and Pensions) Act 2003. Based on the information before the Tribunal, and on the basis that the Claimant has earned £3128.00 in the current tax year using the Welsh tax rates for the tax year 2025/2026, the relevant calculation is as follows:

Tax Band Rate Calculation Tax

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17 Up to £12,570 0% - - £12,571 - £50,270 20% 37700 * 20% 7540 £50,270 - £87,239 40% 36,969 * 40% 14787.60 Total

22327.60

82. The awards that are required to be included for the purpose of grossing up are the basic and compensatory award and injury to feelings and aggravated damages. The total amounts to £117,239.15. The personal allowance is tapered where earnings exceed £100,000.

83. We firstly deduct the tax free threshold of £30,000 from £117,239.15. The sum to be grossed up is £87239.15.

84. The personal allowance is tapered where earnings exceed £100,000. Every £2 earned above £100,000 will reduce the personal allowance by £1 which means the personal allowance is reduced once the employee earns £125,140. However, even adding the claimant’s current earnings and the awards made gross for unpaid wages, holiday pay and sick pay, the total comes in under £100,000.

For these reasons we do not propose to account for this in the usual way by applying a 60% tax band for an amount above £100,000.

Table of calculations

Award Amount Gross or net Explanation

Basic award 3428.75

Compensatory award (wages) 62283.93 Net 141 weeks @ £441.73

Compensatory award (loss of benefits) 7480.05 Net 141 weeks @ £53.05

Acas uplift of 10% 6976.40

Injury to feelings 33,700

Acas uplift 3370

Unpaid wages June – August 2022 1798.30 Gross

Unpaid SSP 2000.29 Gross

Unpaid holiday pay 4097.52 Gross

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18 Loss of statutory rights 500

Grossing up 22327.60

S38 EA 2002 1055.00 Gross

_________________________________

Employment Judge S Moore Dated: 21 April 2026

REASONS SENT TO THE PARTIES ON

23 April 2026

[NAME_102]

FOR THE SECRETARY OF EMPLOYMENT TRIBUNALS

Case Number: 1600573/2023 and 1603104/2023

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

Cardiff

On:

23, 24, 25, 26, 30 June 2025 and 1 July 2025

Before:

Employment Judge S [NAME_8]

[NAME_6] Claimant:

[redacted]

Respondent: [redacted]

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

1. The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages.

2. The complaint in respect of holiday pay is well-founded. The respondent made an unauthorised deduction from the claimant's wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.

3. The complaint in respect of holiday pay is well-founded. The respondent failed to pay the claimant in accordance with regulation 14(2) and/or 16(1) of the Working Time Regulations 1998.

4. The complaints of unfair dismissal contrary to s98 and s103A Employment Rights Act are well-founded. The claimant was unfairly dismissed.

5. The complaint of being subjected to detriment for making protected disclosures is well-founded and succeeds. 6. A [NAME_25] hearing shall be listed.

Approved by:

Employment Judge S Moore 3 July 2025

JUDGMENT SENT TO THE PARTIES ON

11 August 2025

[NAME_105] FOR THE TRIBUNAL OFFICE

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.[NAME_69] shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/

Case Number: 1600573/2023 and 1603104/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Cardiff and in chambers On: 18 and 19 February 2026 and 20 March 2026

Before:

Members: Employment Judge S [NAME_8]

[NAME_6]:

Claimant: [redacted] Respondent: [redacted]

RESERVED JUDGMENT

The Claimant is awarded a preparation time order. The Respondent is ordered to pay the Claimant the sum of £3,036.00.

REASONS

Background and Introduction

1. The liability judgment was promulgated on 15 August 2025. A preliminary hearing for case management on [NAME_25] was listed on 3 October 2025.

Case Number: 1600573/2023 and 1603104/2023

2 Also on this date the claimant made an application for a preparation time order “PTO”). The [NAME_25] hearing was listed on 18 and 19 February 2026 to deal with [NAME_25] and the PTO application. A number of orders were made including the respondent filing a counter schedule and comments on the PTO application, disclosure, preparation of a [NAME_25] bundle and exchange of witness statements:

No Order Date for compliance 1 Para 11 – respondent to comment on application for PTO 17 October 2025 2 Para 13 - respondent to file a counter schedule of loss detailed with rationale and calculations 31 October 2025 3 Para 14 – disclosure 14 November 2025 4 Para 16 – respondent to send draft index to bundle 28 November 2025 5 Agree index to bundle 12 December 2025 6 Para 17 – respondent to send claimant bundle 9 January 2026 7 Para 24 – witness statement exchange 30 January 2026

2. On 10 November 2025 the claimant wrote to the Tribunal to advise that the respondent had failed to comply with orders 1 and 2. On 14 November 2025 the claimant advised the respondent had failed to comply with order 3.

3. On 19 November 2025 the Tribunal wrote to the respondent and ordered the respondent to write to the Tribunal copied to the Claimant by return to explain their continuing non compliance with the order 1 and 2. The respondent was warned if they failed to reply within 2 working days Judge Moore will issue a warning that the response will be struck out for failing to actively pursue and breaching Tribunal orders. The respondent was reminded of the importance of the counter schedule of loss given the lack of transparency over the Claimant’s pay as set out in the liability judgment. The parties were also required to update the Tribunal by return as to whether they had disclosed documents (due by 14 November) and the remaining directions were on track for compliance.

4. On 21 November 2025 the respondent’s solicitor wrote to the Tribunal apologising for the period of inability to deal with this matter attributing it to

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3 illness by the solicitor with conduct of the matter. No medical evidence was provided. The respondent told the Tribunal that “any outstanding directions in this case will be addressed in the first half of next week”.

5. On 21 November 2025 the claimant told the Tribunal that the respondent was still in breach with order 3 (disclosure). The claimant pointed out that the respondent had not asked for extensions of time nor explained why the case could not be dealt with by another fee earner. The claimant asked the Tribunal to consider a strike out.

6. On 25 November 2025 the Tribunal wrote to the Respondent and noted illness did not excuse the respondent’s continuing failure to comply with case management orders or apply for extensions of time to comply. It was noted that [NAME_108] is a large law firm and no explanation had been proffered as to why there was not another fee earner within [NAME_108] that could cover the work The explanation was unsatisfactory and lacking in supporting medical evidence. Further, there was now a second assurance that orders would be complied with and it was now mid week and no such compliance has been forthcoming which the Tribunal was finding disrespectful. The following strike out warning was issued:

a. On the Tribunal’s own initiative and having considered any representations made by the parties, in accordance with Rule 38 of the Employment Tribunal Rules of Procedure;

b. Employment Judge Moore is considering striking out the response relevant to the issue of [NAME_25]. It appears a fair hearing is no longer possible because:

c. the manner in which the proceedings have been conducted by or on behalf of the respondent has been scandalous, unreasonable or vexatious;

d. you have not complied with the Orders of the Tribunal dated 3 October 2025 at paragraphs 11, 13, 14 and 16 appears it will also not be met. No permission has been sought to extend time;

e. it has not been actively pursued.

7. On 26 November 2025 the [NAME_109] replied with submissions as to why strike out should not take place, purported to comply with order 1 and submitted a costs application against the claimant based on allegations about the claimant’s conduct in 2023 and 2024 that she had failed to clarify her claims. This costs application appeared to be retaliatory, having been made so late and only after the claimant’s PTO application. It was wisely withdrawn at the [NAME_25] hearing. The response to the PTO did

Case Number: 1600573/2023 and 1603104/2023

4 not address the claimant’s application in any meaningful way instead focussing on the claimant’s conduct as above.

8. On 10 December 2025 Judge Moore ordered the Respondent to comment why another fee earner had not complied with orders in the fee earner’s absence.

9. On 17 December 2025 at 23.55pm, five minutes before the date for compliance, the Respondent replied asserting that dealing with relevant issues required knowledge of what happened in the remainder of the proceedings and the decisions at the liability hearing. This was not an acceptable explanation as it did not explain why other fee earners could not have asked for extensions of time. It is noted that the fee earner had been well enough to draft and submit a costs application yet says he was not well enough to comply with case management orders or ask for extensions of time. There was still no medical evidence provided.

10. The email asserted as of 17 December 2025 all outstanding steps had been addressed.

11. On 12 January 2026 the claimant informed the Tribunal that as at 17 December 2025 the Respondent was in breach of the order 4 (to send a draft index to [NAME_25] bundle by 28 November 2025), order 5 (agree the index by 12 December 2025) and order 6 (to prepare and serve the agreed [NAME_25] bundle by 9 January 2026).

12. On 28 January 2026 the Tribunal raised these matters with the respondent and commented that if the above was correct, the respondent’s email of 17 December 2025 may have misled the Tribunal. The respondent was ordered to comment on whether they agree the above orders remain in breach and if so why, no later than 4pm on 30 January 2026.

13. The respondent did not reply by the date ordered. A reply was sent on 2 February 2026. The reason for the delay was that the fee earner was out of the office and an auto reply would have been sent. The explanation was as follows:

With reference to the letter it attached, the Respondent does not agree that orders remain in breach. When we wrote to the Tribunal on 26 November 2025 we noted that in all likelihood the parties’ disclosure would simply be combined. No opposition to that position was received. What the Claimant’s email to the Tribunal on 12 January 2026 did not however include was an indication that she only provided access to her disclosure in mid-December. It is surprising to say the least that the

Case Number: 1600573/2023 and 1603104/2023

5 Claimant should seek to take a point about compliance when she knows that it was impossible for the Respondent to produce a draft index on 28 November, for example, or take any other steps because she had not provided access to her documentation. Had a bundle been prepared then it would necessarily have contained the Respondent’s documentation only, as it was only the Respondent which had at that point completed its disclosure. Obviously the Respondent did not take this course, and indeed it did not take issue with the position as opposed to simply continuing to seek to prepare a bundle in due course. When access was provided the Claimant’s documents, which ran to hundreds of pages, had to be reviewed before a bundle could be produced. The festive break and weather complications caused in the first half of January then followed. A bundle was produced which, as had previously been indicated, simply combined the parties’ disclosure. Indeed, it even used the Claimant’s own index and her wording in terms of descriptions of documents. A limited number of documents disclosed by the Respondent were added at the end of this, but fundamentally the bundle reflects the Claimant’s disclosure. A few pages (or in some cases parts of pages) of the Claimant’s documentation were not included as they cannot be, as has been explained to the Claimant by multiple Judges and which has also been the subject of a previous judgment (notably ACAS correspondence). This was explained to the Claimant. The Claimant downloaded the bundle on 15 January 2026. An email dated 29 January 2026, notably the day after the Tribunal’s email below, has been received indicating that the Claimant does not agree the bundle. The Claimant indicated that an objection was “the exclusion of certain documents that were already disclosed and included in the agreed liability hearing bundle” which we do not understand, the approach taken has been set out above and the bundle simply includes what both parties disclosed, if documents from the liability bundle were to be included then they should have been disclosed already as the Claimant has done for numerous items within the [NAME_25] bundle. Surprisingly the Claimant again referred in her email to the lack of draft index on 28 November 2025 but again failed to acknowledge when she provided access to her own documentation. The Respondent does not see how the Claimant can repeatedly seek to take a point against it, in correspondence both directly with it and to the Tribunal, when she herself knows the position in respect of her documents. This is particularly the case when both she and the Tribunal have referred to the Respondent potentially misleading the Tribunal.

In this respect, the Respondent does not accept that its previous correspondence was misleading. Firstly, as above, the Claimant herself knew precisely the position when she wrote to the Tribunal. Beyond this

Case Number: 1600573/2023 and 1603104/2023

6 however our email of 17 December 2025 was on its face continuing the previous correspondence dated 26 November 2025, to which the Tribunal’s email dated 10 December 2025 referred. In our email of 26 November 2025 we referred to the outstanding issues having been addressed, and it was these outstanding steps that were also referenced in the email of 17 December 2025 as it was understood that this was what the Tribunal’s correspondence was addressing. Regrettably the Respondent also cannot accept the references to being able to draft an appeal and a costs application within the Tribunal’s letter. As the Tribunal will be aware, the appeal was drafted before the case management hearing for [NAME_25] in this matter took place, and the Respondent’s costs application was addressed alongside dealing with other case management steps in this case and indeed it was contained within a single document dealing with both. It appears to the Respondent that there is a suggestion that those steps have been taken instead of case management but that is not the case and it cannot be borne out by the chronology of these proceedings.

For clarity, the Respondent is not relying on witness evidence at the [NAME_25] hearing and therefore it has no statements to serve.

14. On 5 February 2026 the Tribunal wrote to the parties and advised that the Tribunal would decide whether to strike out the respondent’s response as a preliminary matter at the [NAME_25] hearing. The claimant was ordered to prepare to address the assertions in the respondent’s email of 2 February 2026. The respondent was told the Tribunal remained unsatisfied with the explanation above and took the unusual step of requiring the managing parter of [NAME_108] to provide a witness statement as to the arrangements for covering orders and correspondence of the Tribunal in the absence of fee earners.

15. At the [NAME_25] hearing, the claimant was able to demonstrate the following:

a. The claimant did comply with the order for disclosure on 14 November 2025. The documents were password protected, a practice that the respondent introduced in these proceedings, and the claimant told the respondent she would provide the password once their disclosure was sent;

b. The respondent’s disclosure was not sent until 26 November 2025;

c. The reason the claimant’s disclosure had not been accessed until mid December 2025 was because the respondent’s solicitor had failed to

Case Number: 1600573/2023 and 1603104/2023

7 comply with the disclosure order on time. The claimant was then abroad and provided the password on her return on 8 December 2025. It was therefore disingenuous to attribute blame to the claimant for this state of affairs.

d. The claimant’s disclosure was accessed on 8 December 2025. There was no applications for extensions of time, just further repeated breaches in orders. The solicitor then blamed “the festive break and weather complications” for the failure to serve the bundle by 9 January 2026. Again no application had been made for permission to extend time. The respondent subsequently produced a bundle on 15 January 2026 unilaterally, which had not been agreed, again in breach of orders. The claimant accessed the bundle but asserted it was missing content. The claimant therefore had to prepare a separate bundle for the [NAME_25] hearing.

16. On 30 January 2026 the claimant served her witness statement. No witness statements were served by the respondent and they did not tell the claimant they did not intend to rely on witnesses until 2 February 2026. The respondent therefore also breached order 7.

Decision on strike out

17. The Tribunal heard submissions from the claimant and counsel for the respondent at the outset of the preliminary hearing. The above conduct is set out in this judgment as it was conduct relied upon in the application for a PTO.

18. Notwithstanding the conduct of the respondent above, which the Tribunal determined was wholly unreasonable, the parties were ready to proceed to the [NAME_25] hearing. As a fair trial was still possible the Tribunal decided not to strike out the response.

The Law

19. The power to award costs is set out in Part 13 of the Employment Tribunal Rules of Procedure 2024 (“the Rules”). The relevant Rules are 74 and 77. Rule 72 defines preparation time as time spent by the receiving party including by any of the receiving party’s employees or advisers) in working on the case, except for time spent at any final hearing;

74 When a costs order or a preparation time order may or shall be made

(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order

Case Number: 1600573/2023 and 1603104/2023

8 under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.

(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.

(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.

20. Rule 77 provides: The amount of a preparation time order

77.—(1) The Tribunal must decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on the preparation time spent, and (b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £44 and increases on 6 April each year by £1. (3) The amount of a preparation time order must be calculated by multiplying the number of hours assessed under paragraph (1) by the rate under paragraph (2) which is applicable to the year beginning 6 April in which the preparation time was spent.

21. Costs are the exception – not the rule. This is a fundamental principle. The Employment Tribunal is not a “no costs” jurisdiction – the fact there are costs rules shows that that proposition to be incorrect. But the powers are curtailed. Costs for example do not follow the event: the winner does not secure a costs order against a loser simply because they won.

22. The Tribunal was not referred to any authorities by the parties. The following are the general authorities we have had regard to in reaching our decision.

23. Radia v Jefferies International Ltd [2020] IRLR 431, EAT sets out the approach to be taken when considering a costs order. The first question for a tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 761(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the tribunal may make a costs order and shall consider whether to do so. That is the second stage, and it involves the exercise by the tribunal of a judicial discretion. It is an error to move from stage 1 to stage 3 and to omit stage 2; [NAME_110] v [COMPANY_111]

1 Now R74

Case Number: 1600573/2023 and 1603104/2023

9 NHS Trust UKEAT/0258/16 EAT; Edenbeck Limited v Stevenson [2023] EAT 128 EAT.

24. ‘Reasonable prospect’ of success is an objective assessment. The issue is not whether the party thought they were in the right but is whether they had reasonable grounds for thinking they were in the right: Scott v Inland Revenue Commissioners [2004] ICR 1410 [NAME_72]; Hamilton-Jones v Black UKEAT/0047/04 EAT.

25. The mere existence of factual disputes in the case, which could only be resolved by hearing evidence and finding facts, does not necessarily mean that the tribunal cannot properly conclude that the claim had no reasonable prospects from the outset.

26. The third stage is to then consider the amount of the award and the form of the award.

27. Abusively or disruptively and unreasonable have an ordinary, everyday, objective, meaning ([NAME_112] v Secretary of State for Employment EAT 183/73). Unreasonably can include pursuing an unmeritorious claim and one can have regard to what the paying party knew or ought to have known: [NAME_113] v [NAME_114] of All Saints CofE School [1991] ICR 493.

28. Lying in evidence will not automatically result in a finding of unreasonable conduct. A false allegation at the heart of the claim may do (Daleside Nursing Home Limited v Mathew UKEAT 0519/08 EAT) but a lie of less gravity and effect may not be: [NAME_115] v [NAME_116] of Barnhill Community High School UKEAT/0352/13 EAT.

29. In terms of the amount of a PTO, the Tribunal should consider what is a reasonable and proportionate number of hours referring to the complexity, witnesses and documentation required. There is no limit on the amount that can be awarded under this rule. “Proportionate and reasonable” requires balancing the fact that a litigant in person who represented themselves will be slower than a lawyer but that there is still a boundary beyond which reasonable preparation time becomes excessive.

Conclusions

Ground one - Failure to Comply with Case Management Orders & Disclosure

30. This related to three matters.

Case Number: 1600573/2023 and 1603104/2023

10

I. The respondent’s failure to comply with Judge Braces’s order dated 15 January 2024 at paragraph 15 in summary to tell the Tribunal and the claimant how they had calculated her wages and holiday pay. See liability judgment findings at paragraphs 9, 10, 11, 13, 14, 176, 179, 187. The respondent remains in breach of this order as of the [NAME_25] hearing. The Tribunal does not accept that the respondent complied with the order by the document at page 1011 of the liability bundle. As can be seen from our decision this significantly hampered both the claimant and the Tribunal in understanding the respondent’s positions in respect of the financial claims. We have no doubt that the claimant had to spend a significant amount of time in collating her own schedules from her records that had been kept and making the calculations. Their [NAME_27] witness, [NAME_17], produced only a 2.5- page statement with no documents, which the Tribunal criticised as “extremely sparse” and “unhelpful”. The respondents conduct was unreasonable and in breach of orders. The threshold is met and we consider the discretion to award costs should be exercised. We award the following time in respect of this conduct:

26 June 2023 – preparing detailed spreadsheet of wages, holiday, and sick pay calculations – 3 hours;

5 April 2024 - Drafting second Further & Better Particulars (as the respondent had failed to comply with Judge Brace’s order) – 2 hours.

II. Key contemporaneous documents were missing or redacted without explanation, including the Claimant’s protected disclosure email and [NAME_27] records. The Tribunal agrees that the documents cited were missing. It is not clear what time had to be spent addressing these matters as such no award is made.

III. The Respondent submitted late evidence on 30 June 2025, forcing the Claimant to prepare additional spreadsheets and cross-check calculations at great personal cost.

31. This related to documents the respondent disclosed on 26 June 2025 that were admitted. These documents should have been disclosed earlier in proceedings but were not (they related to the investigation meeting and the issue of rates of pay). The conduct was unreasonable and in breach of the order for disclosure. The threshold is met. The claimant objected to the late disclosure and was given the opportunity to comment. To that end the claimant prepared a long email dated 30 June 2026 addressing her position on the late disclosed documents. The claimant had not provided a specific breakdown of hours spent on this task, but having regard to the content of the email, necessary research and sourcing of other documents it is reasonable to award the claimant 3 hours preparation time.

Case Number: 1600573/2023 and 1603104/2023

11

Ground 2 - Misleading and Contradictory Evidence

32. This related to the following matters:

The Tribunal found serious credibility issues with the Respondent’s witnesses:

a. [NAME_21]: His witness statement denied any agreement for three hours [NAME_36] pay. Under cross-examination he admitted the agreement existed and was authorised for months. The Tribunal said it was “extremely unfortunate” his false account was maintained until oral evidence;

b. [NAME_60]: His written statement said he personally investigated a grievance. Under cross-examination he admitted he had done nothing; HR wrote the report. The Tribunal described his statement as “at best misleading and at worst untrue”;

c. [NAME_17]: His evidence contradicted the Respondent’s own documents and government guidelines on holiday pay, and he admitted that underpayments were not corrected retrospectively;

d. Judge Moore was forced to remind Respondent witnesses mid-hearing about the “importance of accuracy and truthfulness” — an extraordinary intervention, showing the extent of the Respondent’s failings;

e. These contradictions wasted Tribunal time and forced the Claimant to spend additional hours in cross-examination preparation, including producing a supplemental bundle of clearer documents to correct errors in the Respondent’s.

33. See liability judgment at paragraphs 9, 10, 11 , 12, 13, 14, 16, 18, 19 – 22, 63, 73 – 79. In our judgment it was abusive and unreasonable to maintain a position in evidence in a written statement and resile from that position under cross examination. It is reasonable to exercise the discretion to make an order. If the witnesses had been truthful and the respondent assisted the Tribunal by providing sensible and understandable information about pay and holidays a lot of unnecessary preparation could have been avoided. The claimant claimed 3 hours preparation time for cross examination per witness. We award the claimant 9 hours preparation time for preparing for [NAME_21], [NAME_60] and [NAME_17].

34. The claimant also claimed an additional 20 hours preparation time overnight during the final hearing due to the changes in evidence. We agree that the claimant would have had to revise her preparation and review documents

Case Number: 1600573/2023 and 1603104/2023

12 in the evenings given the evidence given by [NAME_21] and [NAME_60]. We award the claimant 7 hours preparation time.

35. We also award the claimant 6 hours for preparation of the supplementary bundle which had to be produced as documents in the bundle prepared by the claimant were illegible and missing some of her documents.

36. The total award thus far is 30 hours.

Unreasonable Conduct Throughout Proceedings

37. This relied on three grounds:

38. The Tribunal itself recorded that it had “great difficulty” understanding the Respondent’s pay slips and holiday pay system, whereas the Claimant’s records were “meticulous” and accepted as accurate. We consider that we have already made a PTO in respect of this above at paragraph 30 (i).

39. [NAME_27] queries went unanswered, leaving the Claimant in financial hardship. Conduct during the employment relationship cannot form the basis for a PTO.

40. The Respondent threatened the Claimant with costs on several occasions, including a formal letter dated 4 April 2025. That letter sought to intimidate the Claimant into withdrawing, even though the Tribunal’s findings later confirmed that the Respondent’s own evidence — not the Claimant’s — was contradictory and misleading. The costs warning letter relies on the claimant having failed to particularise her claims and tell the Tribunal about the first claim when the second claim was lodged. The tone of that letter was unnecessarily aggressive and alleged the claimant was lying as she had failed to tick a box on the ET1 saying there was a second claim. It was unreasonable to make this allegation against the claimant as a litigant in person. However the Tribunal declines to make a PTO in regard to this letter as the claimant has not set out what time she spent dealing with the letter

Conduct after liability hearting to [NAME_25] hearing

41. The claimant sought preparation time in respect of having to address the conduct of the respondent which is set out at paragraphs 1 - 16 above. The respondent was in persistent breach of orders almost resulting in a strike out of their response. The respondent is fixed with the conduct of their representative. The threshold is met and it is appropriate to make an order. The claimant sought 154.5 hours which equates to 4.5 working weeks. We do not award the time claimed relative to preparation for the [NAME_25] hearing which would have been required in any event.

Case Number: 1600573/2023 and 1603104/2023

13 42. Applying a broad brush approach, we award the claimant the following preparation time:

Oct-Nov 2025 Monitoring compliance with Tribunal directions (repeated checks, correspondence, calls to Tribunal) – 6 hours;

10 Nov 2025 Drafting detailed non-compliance email to Tribunal - 3.75 hours;

Jan 2026 (various) Continued monitoring of non-compliance; correspondence with Tribunal and Respondent 6.5 hours;

15 Jan 2026 Reviewing bundle; identifying missing / redacted pages; analysing costs threats - 5 hours;

26–30 Jan 2026 Preparing non-compliance bundle; reviewing Tribunal correspondence; finalising submissions - 10.25 hours claimed, awarded 5 hours for having to prepare the bundle;

Preparation of PTO application and supporting submissions - 6.75 hours (bundle preparation not awarded as already awarded above).

Total – 39 hours.

43. The total preparation time awarded is therefore 69 hours.

_________________________________

Approved by Employment Judge S Moore Dated: 30 March 2026

REASONS SENT TO THE PARTIES ON

31 March 2026

[NAME_105]

FOR THE SECRETARY OF EMPLOYMENT TRIBUNALS

Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.[NAME_69] tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge.

Case Number: 1600573/2023 and 1603104/2023

14 There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/

Case Number: 1600573/2023

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

JUDGMENT

The text which appears at Paragraph 8.2 of the Claimant’s ET1 claim form of 15 March 2023 from “Employer did offer me a COT3…” to the end of the paragraph is struck out as it would not be possible to have a fair hearing if that part of the claim form were not struck out.

REASONS

1. On 27 June 2023, the Respondent applied to strike out those parts of the Claimant’s ET claim form which included reference to terms of partial settlement negotiated with the assistance of ACAS. On 28 June 2023, Employment Judge Harfield expressed the preliminary view that part of the Claimant’s claim form (at Paragraph 8.2) contained information which was privileged and therefore could not be disclosed to the Tribunal without the consent of both the Claimant and the Respondent. The Claimant was invited ted to provide any objections to that part of the claim form being therefore struck out.

2. On 30 June 2023, the Claimant responded as follows (so far as relevant):

I thought the point of a court hearing was for the truth to be heard. So if this information is needed then surely it should be available?

3. The purpose of civil court and tribunal proceedings is to resolve disputes, where the parties to them have been unbale to do so, whether by way of negotiation, arbitration, mediation or conciliation (all of which are forms of agreed resolution). The courts and tribunals impose a resolution on the parties by way of a judgment.

4. However, to foster and facilitate the continued possibility of the parties reaching agreement and settlement without the imposition of a judgment, any

negotiations and communications which are entered into by the parties (with or without the assistance of ACAS) are confidential and cannot be disclosed unless both parties agree to such disclosure. This enables the parties to speak freely to each other in attempts to settle their dispute, in the knowledge that such discussions cannot be disclosed to the tribunal.

5. It follows that referring to settlement discussions and agreements in the ET1 claim form is not permitted in circumstances where, as here, one of the parties to the settlement discussions has not consented to their disclosure.

6. For those reasons, that part of the Claimant’s ET1 claim form that refers to the terms of partial settlement are struck out.

_____________________________

Employment Judge Povey

Date - 24 July 2023

JUDGMENT SENT TO THE PARTIES ON 28 July 2023

FOR THE TRIBUNAL OFFICE [NAME_117]: 1603104/2023 and 1600573/2023

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

Cardiff

On:

18 and 19 February 2026

Before:

Employment Judge S [NAME_8]

[NAME_6] Claimant:

[redacted]

Respondent: [redacted]

JUDGMENT ON [NAME_25]

1. The respondent is ordered to pay the claimant a basic award of £3,428.75.

2. In accordance with S123 and S124 Employment Rights Act 1996, the respondent is ordered to pay the claimant a total of £76,740.40 in relation to the compensatory award.

3. This comprises of the net sum of £62,283.93 for loss of wages and £7,480.05 for loss of benefits between 20 September 2023 and 1 June 2026 uplifted by £6,976.40 or 10% for failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

4. The Employment Protection (Recoupment of Benefit) Regulations 1996 do not apply to this award.

5. The respondent is ordered to pay the claimant the sum of £33,700 for injury to feelings uplifted by £3,370.00 or 10% for failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. The total sum payable is £37,070.00.

6. The respondent is ordered to pay the claimant the sum of £1,798.30 for unpaid wages between the period 6 June 2022 – 29 August 2022, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance.

7. The respondent is ordered to pay the claimant £2,000.29 for unpaid statutory sick pay between the period 11 January 2023 to 19 September

2023, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance.

8. The respondent is ordered to pay the claimant the sum of £4,097.52 for unpaid holiday pay, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance.

9. The respondent is ordered to pay the claimant the sum of £500.00 for loss of statutory rights.

10. The Respondent is ordered to pay the claimant the sum of £22,327.60 in respect of tax payable on the award (‘grossing up’).

11. When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. It is not just and equitable to make an award of an amount equal to four weeks’ gross pay. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay the claimant £1,055.00.

Approved by:

Employment Judge S Moore 16 March 2026

JUDGMENT SENT TO THE PARTIES ON

16 March 2026

[NAME_105] FOR THE TRIBUNAL OFFICE