“9. Miss Ciochon was employed by Mr Kempe from the20 May 2018 to1 February 2019 . There has been some confusion about the effective date of termination but in our view having regard to the email sent by Mr Kempe on the 1 February that must constitute a notification of dismissal and therefore that becomes the effective date of termination. 10. Mr Kempe owns both the Neville Arms and separate premises called The White House Inn. He has a number of public bars to run, 2 restaurants and 15 guest rooms in addition. Mr Kempe would be by today’s standards recognised as a medium sized employer. 11. Miss Ciochon worked for approximately 15 hours per week though the job for which she applied for required 25 hours per week. The Neville Arms Café we accept suffered a downturn in business from August 2018 as set out in paragraph 7 of Mr Kempe’s evidence. We note that those figures are confirmed at S30 by Mr Kempe’s accountant. We accept those figures we also accept that Mr Kempe was particularly concerned at the downturn in the month of December i.e. the festive season. 12. Mr Kempe told us and we accept that he concluded that he needed to reduce staff. He sets out at paragraph 13 of his proof of evidence those employed at the Café Neville at the relevant time. We accept that list although we would add Miss Brown who appears on the disclosed list of employees at page 35. Miss Ciochon asserted that the list was dishonest but provided no evidence to support that contention. We therefore accept Mr Kempe’s evidence on the point. 13. At page 75 we have an email from Miss Ciochon in which she informs Mr Kempe’s and Miss Difazio that she is pregnant she says: ‘just had first scan today to check if everything is okay and I would like to inform you that I am pregnant, my due day is the 24 June’. Miss Difazio replies: ‘Dear Kat, congratulations thank you for letting us know in plenty of time’. 14. There follows at page 76 an email from Mr Kempe to Miss Ciochon of the 29 January which is headed ‘Pending Notice of Redundancy’. Mr Kempe says ‘I am obliged to offer a consultation should you wish and an opportunity to discuss why we are considering making you redundant. The main reason for the redundancy however is due to the downturn in business and I have to review the hours and staffing requirement accordingly. In consideration of the redundancy I propose one weeks normal pay and payment of your remaining holiday entitlement’. 15. Still on the same page on the 1 February i.e. not much more than 48 hours later Mr Kempe writes again to the Claimant as follows: ‘I haven’t heard from you since my email of 29 January offering a consultation with you I assume therefore you understand and accept my proposal of one weeks pay in lieu of notice and your remaining holiday entitlement’. 16. On 3 February Miss Ciochon replies at page 78 she says: ‘please note I am not going to communicate with you any longer as it is far too stressful in my current state. You knew that I am heavily pregnant and decided to dismiss me. You knew it was unlawful and unfair dismissal and that you discriminated me on the grounds of pregnancy, I absolutely don’t accept your offer and found it absolutely perfidious and disgusting what you have done’. That effectively brings us to these proceedings.”
“17. In relation to the first 2 claims both of which are essentially asserting that Miss Ciochon was dismissed by reason of her pregnancy these are the facts from which inferences might by drawn. 18. The most significant area is the redundancy process itself. As to the question of the pool Mr Kempe’s evidence was that he had considered all of the employees at Café Neville but had determined that the appropriate pool were the 2 waitresses namely Miss Ciochon and Libby Lewington. It is not for us to go behind the reasoning of Mr Kempe provided that we are satisfied that he gave due thought to the formation of the pool and we accept that he did. 19. We also accept that the criteria which he took into account in making his decision are set out in paragraph 17 of his proof of evidence namely cross transferable skills, experience, flexibility to work different hours, flexibility to work across different sites, attitude to work including the ability to muck in where needed. 20. Mr Kempe then consulted with Miss Sheriff and Miss Difazio they concluded jointly that Miss Ciochon was less willing, that she was less flexible, that she preferred only to wait at tables, that she was at times surly with customers and that they had both had to take her to task about her appearance. Both said that they had had informal chats with Miss Ciochon about those matters. 21. There is a conflict of evidence Miss Ciochon says that she was never spoken to about her aptitude, her willingness or her appearance. She asserted she had not been spoken to at all. We do not accept Miss Ciochon’s evidence it is not credible that a new recruit at a business that was new to her would not have been spoken to in someway particularly during her early weeks. 22. We would comment generally as to Miss Ciochon’s evidence that we did not find her a credible witness. We take into account that giving evidence is highly stressful particularly when accusations are being made against you. We also take into account that the cross examination had to be interpreted because English is not Miss Ciochon’s first language. However, in a number of areas Miss Ciochon prevaricated over very simple questions, for example whether her preference was to wait table she eventually conceded that it was. Secondly, whether she was dependent upon her partner now her husband for transport again she eventually conceded that she was. 23. Turning now to procedure or rather in this case the lack of it. Apart from the emails at page 76 there is no written record of the procedure at all. Further Mr Kempe when questioned by the Tribunal said that he did not even make Libby Lewington aware that she was being considered for redundancy. There was no one to one meeting with Miss Ciochon though we accept that Miss Ciochon is partly to blame for that. Mr Kempe should not have concluded that silence over 48 hours could be interpreted as acceptance of voluntary redundancy. 24. Mr Kempe explained that his conduct in terms of the lack of procedure arose essentially from ignorance which we find surprising in an experienced employer who has been in the hospitality business for a number of years. 25. The second allegation from which an inference can be drawn is in relation to employment of other staff after Miss Ciochon’s dismissal. We accept as a matter of fact that the only employee that was employed post the dismissal was Laura Snelling who was employed as cover for Miss Sheriff whose mother has been killed in a house fire. As to the other employees we accept that they were all in post at the time of Miss Ciochon’s dismissal. 26. Another allegation from which an inference might be drawn in relation only to pregnancy is the assertion by Miss Ciochon in cross examination that she was reluctant to disclose her pregnancy for fear of an adverse reaction from her employer. We do not for one moment accept that evidence. In fact Miss Ciochon disclosed pregnancy to Mr Kempe on the same day as she had her first scan i.e. when she was just over 3 months pregnant which is the normal point at which pregnant women would make disclosure. 27. Another matter is Miss Ciochon’s assertion which is in 2 parts paragraph 6 of her proof of evidence. Firstly, she says that her hours were gradually cut down in fact the evidence is to the contrary. She worked her normal hours on the weekends of the 13 and 14 January and 19 and 20 January so there is no evidence to support that contention. Secondly, she says that Mr Kempe completely cut me off in fact after another tortuous piece of cross examination and intervention by the Tribunal Miss Ciochon conceded that in fact that boiled down to the failure to reply to one message sent by her to Mr Kempe on the 20 January. 28. Another matter is the assertion at paragraph 20 of Miss Ciochon’s proof of evidence in which she says ‘I assume that he i.e. Mr Kempe could have issue with my appearance as my pregnancy was visible and he made me a few times aware that I do not look appropriate for the waiting table service any more due to my appearance’. In cross examination Miss Ciochon accepted that Mr Kempe had never spoken to her directly and that she was relying on what she was told by unnamed colleagues. 29. In reaching our decision we take into account Mr Kempe’s evidence that most of his employees are female and that between 2014 and 2018 these were 4 employees on statutory maternity leave receiving statutory maternity pay see S31 to S35. In our view there is nothing in that evidence to shift the burden of proof to the Respondents and we accept that the reason for dismissal was as asserted by Mr Kempe namely redundancy.” … In summary therefore Ms Ciochon was not dismissed in any way either because of her pregnancy or because of her Polish nationality. Thus all of her claims must be dismissed. That then is our decision.”
“Regarding paragraph 18 (Ground 1), the claimant argues first that the ET erred in law by not assessing why the respondent chose a pool of just two employees and in fact only notified the claimant that she had been selected for redundancy without informing the other employee that she was at risk. In my judgment this is an arguable error of law. The Tribunal in this paragraph appears to have taken an approach that might have been appropriate in an ‘ordinary’ unfair dismissal case where a reasonable responses approach applies to selection of a pool (Mogane v Bradford[2022] EAT 139 ). However, this was not an ‘ordinary’ unfair dismissal case. It was in part a discrimination case and the key question for the Tribunal on the s 18 claim was whether the dismissal of the claimant was materially influenced by the claimant’s pregnancy. To answer that question, the Tribunal arguably did have to ‘go behind the reasoning of Mr Kempe’. It arguably needed to do so in order to consider the automatically unfair dismissal claim under s 99 too. Regarding paragraphs 23-24 (Ground 3), the claimant’s argument amounts to a contention that the Tribunal erred in law and/or perversely failed to draw an inference of discrimination from what it found to be unreasonable conduct by Mr Kempe (paragraph 23) for which it considered his explanation inadequate (paragraph 24). It is arguable that the Tribunal has in these paragraphs failed properly to direct itself by reference to (or apply) Bahl v Law Society[2003] IRLR 640 at [98]-[101] and Network Rail Infrastructure v Griffiths-Henry[2006] IRLR 865 at [22]. Alternatively, the Tribunal has arguably failed to give adequate reasons for its refusal to draw an adverse inference from these matters.”
“Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”
“1. This case involves a scenario that many employment lawyers will have encountered at some point in their careers. A woman tells her employer the good news that she is pregnant. A few days later she is told the bad news that she no longer has a job. But one must be careful to avoid the fallacy commonly known by its Latin tag; post hoc ergo propter hoc. Just because one thing follows another, it does not necessarily mean that the latter was caused by the former. That said, the fact that a woman is dismissed shortly after telling her employer that she is pregnant often provides compelling support for an inference of discrimination to be drawn. The fact that the scenario may be familiar does not of itself assist in determining whether the inference should be drawn. Each case must be determined on its own facts, depending on the evidence about the reason for dismissal and, where appropriate, if the claim is brought under theEquality Act 2010 (‘EQA’), by application of the burden of proof provisions.”
“It is not for us to go behind the reasoning of Mr Kempe provided that we are satisfied that he gave due thought to the formation of the pool and we accept that he did.”
“98. Accordingly, to the extent that the tribunal found discriminatory treatment from unreasonable treatment alone, their reasoning would be flawed and the finding of discrimination could not stand. That is the clear ratio of Zafar and that decision remains unaffected by Anya. The relevance of unreasonable treatment. 99. That is not to say that the fact that an employer has acted unreasonably is of no relevance whatsoever. The fundamental question is why the alleged discriminator acted as he did. If what he does is reasonable then the reason is likely to be non-discriminatory. In general a person has good non-discriminatory reasons for doing what is reasonable. This is not inevitably so since sometimes there is a choice between a range of reasonable conduct and it is of course logically possible the discriminator might take the less favourable option for someone who is say black or a female and the more favourable for someone who is white or male. But the tribunal would need to have very cogent evidence before inferring that someone who has acted in a reasonable way is guilty of unlawful discrimination. 100. By contrast, where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups. 101. The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself.”