Miss K Hopperton v Ave Maria Care Ltd: 1305589/2023

EMPLOYMENT TRIBUNALS

Case No 1305589/2023

Between

Miss K HoppertonClaimant

Ave Maria Care LtdRespondent

Before

Employment Judge Edmonds

Date 30 January 2025

JUDGMENT

[1]The complaint of being subjected to detriment for the prescribed reason of pregnancy, childbirth or maternity is well-founded and succeeds in relation to:a. The removal of the RS appointments;

b. The removal of the SM appointments;

c. The removal of the claimant’s shift on 15 March 2023; and

d. Failure to pay the claimant for attending ante-natal appointments on 27 February 2023 and 24 April 2023. In relation to other matters, that complaint is not well-founded and is dismissed.

[2]The complaint of pregnancy and maternity discrimination is well-founded and succeeds in relation to:a. The removal of the SM appointments;

b. The removal of the claimant’s shift on 15 March 2023; and

c. Failure to pay the claimant for attending ante-natal appointments on 27 February 2023 and 24 April 2023. In relation to other matters, that complaint is not well-founded and is dismissed.

[3]The complaint of unauthorised deductions from wages is well-founded.

[4]The complaint of unfair dismissal is not well-founded and is dismissed.

[5]The complaint of victimisation is not well-founded and is dismissed.

[6]A separate remedy hearing will be listed.

REASONS

REMEDY

[1]The claimant was a care assistant who worked for the respondent from 16 September 2022, visiting clients in their homes to provide care for them. She had previously worked for the respondent from March 2020 to February 2022 but it is accepted that there was a break in service before she returned in September 2022. The claimant says that she was an employee, the respondent says that she was not. She was on a zero hours contract. There is a dispute as to whether she was dismissed by the respondent or whether her employment is in fact still continuing (but on a zero hours basis).

[2]ACAS early conciliation commenced on 9 June 2023 and concluded on 17 July 2023. Her claim form was presented on 16 August 2023.

[3]This claim is essentially about the way the claimant says she was treated after she notified the respondent of her pregnancy, in large part as to whether clients were removed from her rota. Claims and Issues

[4]The issues in this case were originally set out by Employment Judge Maxwell in his Record of Preliminary Hearing dated 5 January 2024 (page 77). However, subsequently the claimant sought amendments to the List of Issues and a further Preliminary Hearing therefore took place on 20 February 2024 before Employment Judge Gaskell (page 101). By that time the claimant had made an application to amend her claim: the respondent did not object to the amendments which were then permitted. In addition, reference was made to the potential addition of further protected acts, and the claimant was informed that another application to amend the claim would be required to address this.

[5]A further application to amend was therefore received from the claimant dated 29 February 2024. This contained substantial additional information (going beyond the protected acts discussed at the previous Preliminary Hearing). The respondent did not write to the Tribunal to object to the claimant’s application to amend her claim and Employment Judge Gaskell directed that the amendment application therefore be allowed. This was confirmed to the parties by letter dated 25 March 2024.

[6]At the outset of the hearing, it was identified that because of the above, there was no single coherent List of Issues which identified all of the matters that the Tribunal were being asked to determine. During discussions with the parties about this, it transpired that there was some confusion about exactly what amendments Employment Judge Gaskell had allowed, given that the claimant’s application to amend went beyond the terms previously envisaged by Employment Judge Gaskell at the Preliminary Hearing on 20 February 2024. This led to it becoming apparent that the claimant had not understood exactly what a protected act was (in legal terms) and this was why her application to amend had gone beyond what had been envisaged.

[7]The Tribunal considered whether the application to amend had been allowed in full or only insofar as it added additional protected acts. The Tribunal recognised that it should only interfere with a previous judicial decision of this nature if there were a material change of circumstances. The Tribunal however noted that the covering letter accompanying the application to amend stated that the amendment was simply to add protected acts. The claimant accepted that this was what Employment Judge Gaskell had in mind and on that basis the Tribunal determined that the application to amend which had been approved was to add to the list of protected acts, rather than to amend the claim more substantially. Therefore in limiting the amendment to those protected acts the Tribunal was not interfering with the previous decision of Employment Judge Gaskell.

[8]We therefore spent time with the parties updating the List of Issues to reflect those amendments determined by Employment Judge Gaskell on 20 February 2024, along with the additional protected acts included within the application to amend dated 29 February 2024. The list of issues set out below is therefore the final List of Issues incorporating all of those points, along with a more detailed explanation of the issues to be determined in respect of time limits, as the original List of Issues did not separate out the different elements that the Tribunal would consider. The Tribunal also permitted the claimant to give additional evidence in chief on the topic of time limits if she so wished in light of the specific issues to be considered in that regard only being clarified at this stage.

The Issues

[1]Employment status 1.1 Was the Claimant an employee of the Respondent within the meaning of section 230 of the Employment Rights Act 1996?

[2]Time limits2.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 10 March 2023 may not have been brought in time.

2.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:2.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

2.2.2 If not, was there conduct extending over a period?

2.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

2.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:2.2.4.1 Why were the complaints not made to the Tribunal in time?

2.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

2.3 Was the detriment complaint made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide:2.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of?

2.3.2 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?

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

2.3.4 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?

[3]Unfair dismissal – leave for family reasons3.1 Whether the Claimant was dismissed: 3.1.1 The Claimant says she was dismissed as a result of the Respondent ceasing to provide her with work from 17 March 2023 and telling her she would be given no more work in a telephone conversation on 20 March 2023.

3.2 If dismissed, was the reason or principal reason for dismissal one prescribed by section 99 of the Employment Rights Act 1996, namely her pregnancy (MAPLE reg 20(3)(a)).

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

[4]Detriment (Employment Rights Act 1996 section 47C – leave for family and domestic reasons)4.1 Did the Respondent do the following things:4.1.1 On a date between 3 and 11 December 2022, Mr Ahmed removed the Claimant’s “sit call”, which had been a regular component of her hours and would have been especially suitable during pregnancy as it comprised light duties;

4.1.2 Not permitting the Claimant to return / offering her work on 27 December 2022;

4.1.3 Reducing / offering the Claimant fewer hours in the period from the end of December 2022 to 17 March 2023: 4.1.3.1 From a pattern pre-pregnancy of, approximately, a 46-hour week followed by a 30-hour week, to a pattern of a 32-hour week followed by a 20-hour week;

4.1.4 Not paying the Claimant for a day of leave taking to attend an antenatal appointment, following her email of 7 February 2023;

4.1.5 On 17 March 2023, ceasing to offer the Claimant any hours at all;

4.1.6 On 20 March 2023, telling the Claimant during a telephone

4.1.7 Not paying the Claimant the correct amount of SSP for the period from 24 March to 31 May 2023;

4.1.8 Whilst the Claimant submitted her MatB on 31 March 2023, she received no breakdown of her maternity pay until June or July 2023.

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

4.3 If so, was it done on a ground prescribed pursuant to section 47C of the Employment Rights Act 1996, namely her pregnancy (MAPLE reg 19(2)(a)).

[5]Pregnancy and Maternity Discrimination (Equality Act 2010 section 18)5.1 Did the Respondent treat the Claimant unfavourably by doing the following things:5.1.1 Reducing / offering the Claimant fewer hours in the period from the end of December 2022 to 17 March 2023:

5.1.2 From a pattern pre-pregnancy of, approximately, a 46-hour week followed by a 30-hour week, to a pattern of a 32-hour week followed by a 20-hour week;

5.1.3 Not paying the Claimant for a day of leave taken to attend an antenatal appointment, following her email of 7 February 2023;

5.1.4 On 17 March 2023, ceasing to offer the Claimant any hours at all;

5.1.5 On 20 March 2023, telling the Claimant during a telephone

5.1.6 Not paying the Claimant the correct amount of SSP for the period from 24 March to 31 May 2023;

5.1.7 Whilst the Claimant submitted her MatB on 31 March 2023, she received no breakdown of her maternity pay until June or July 2023.

5.2 Did the unfavourable treatment take place in a protected period?

5.3 If not did it implement a decision taken in the protected period?

5.4 Was the unfavourable treatment because of the pregnancy?

[6]Victimisation (Equality Act 2010 section 27)6.1 Did the Claimant do a protected act as follows:6.1.1 an email on 30 December 2022, in which she expressed concern about whether her hours had been reduced because of pregnancy;

6.1.2 email on 3 February 2023 in similar terms;

6.1.3 two such emails on 13 March 2023;

6.1.4 on 7 January 2023 to the on-call phone the claimant raised concerns about her hours reducing;

6.1.5 on 22 March 2023 the claimant raised concerns with Sahima Kauser over email regarding her phone conversation with Aftab Ahmed about the ceasing of her hours on 20 March 2023. There were further emails from 22 March to 3 April on that topic between Ms Kauser and the claimant.

6.1.6 Between 12 and 19 April 2023, and on 4 May 2023, the claimant raised concerns about her hours by email to Aftab and Sahima.

6.2 Did the Respondent do the following things:6.2.1 Reducing / offering the Claimant fewer hours in the period from the end of December 2022 to 17 March 2023: 6.2.1.1 From a pattern pre-pregnancy of, approximately, a 46- hour week followed by a 30-hour week, to a pattern of a 32-hour week followed by a 20-hour week;

6.2.2 Not paying the Claimant for a day of leave taken to attend an antenatal appointment, following her email of 7 February 2023;

6.2.3 On 17 March 2023, ceasing to offer the Claimant any hours at all;

6.2.4 On 20 March 2023, telling the Claimant during a telephone

6.2.5 Not paying the Claimant the correct amount of SSP for the period from 24 March to 31 May 2023; [Note: this had not been updated from 24 May 2023 at the Preliminary Hearing on 20 February 2024 however given that the wording is identical to the other issues relating to this matter which had been updated, we consider that this is clearly a drafting error and have therefore updated it accordingly]

6.2.6 Whilst the Claimant submitted her MatB on 31 March 2023, she received no breakdown of her maternity pay until June or July 2023.

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

6.4 If so, was it because the Claimant did a protected act?

6.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[7]Unauthorised deductions 7.1 Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted?7.1.1 Not paying the Claimant for a day of leave taken to attend an antenatal appointment, following her email of 7 February 2023;

7.1.2 Not paying the Claimant the correct amount of SSP for the period from 24 March to 24 May 2023. [Again, whilst not specifically referenced by Employment Judge Gaskell as an amendment to the List of Issues we consider the intention must have been to amend this also to align with the earlier amendments relating to SSP]

[8]Remedy 8.1 To what remedy or remedies is the Claimant entitled. Procedure, Documents and Evidence Heard

[9]References in this Reserved Judgment and Reasons to page numbers are to page numbers of the main bundle (hearing file) unless otherwise indicated (hard copy page numbers rather than electronic which did not match unfortunately). However, we also agreed to applications from both parties to add supplementary documents during the course of the hearing and we identify those documents separately by reference to their date and contents. More generally, we advised the parties that we would not be reading all of the documents and that they should therefore ensure they referred the Tribunal to anything of relevance. In that regard the claimant provided a specific reading list to the Tribunal. We were also presented with a number of audio recordings (each relatively short) and a transcript of one of them (dated 20 March 2022). We listened to them in advance of reaching our decision.

Issues

[10]During our preliminary discussions, it became apparent that there had been delays on the respondent’s part in finalising the bundle and therefore the claimant and her witnesses had had to prepare their witness statements without that final bundle. We therefore decided that the claimant’s witnesses would be given the opportunity to provide additional evidence in chief orally should they wish to do so.

[11]A large number of points were raised by both parties during the hearing: we do not address each and every point in our findings and conclusions below, but have addressed those we consider to be directly relevant to the issues in the case.

[12]Both parties provided written and oral submissions to the Tribunal. The Tribunal was grateful to both Mr McDonald and Mr Harris for their cooperation during the hearing and the time and effort they spent distilling the issues for the benefit of the Tribunal. We note in particular that Mr McDonald is not legally trained and it was clear to the Tribunal that he had spent a great deal of time and effort preparing for these proceedings (particularly in the face of late disclosure from the respondent). We also note that the respondent had only instructed legal representatives shortly prior to the hearing and whilst Mr Harris worked hard to ensure the case was thereafter ready for hearing, preparations before that point on the respondent’s part had been somewhat lacking. Witnesses

[13]The Tribunal heard evidence on behalf of the claimant from:a. The claimant herself;

b. Mr McDonald, her partner;

c. Mrs Lesley Moore, a parent of a client at the respondent; and

d. Mrs Rachel Jamieson, a former worker at the respondent.

[14]In relation to Mrs Moore, her evidence was interposed part way through the claimant’s evidence because the hearing was running behind schedule and she had care commitments towards her daughter. Whilst she confirmed under oath that her statement was true and accurate to the best of her knowledge and belief, the respondent had no questions for her and neither did the Tribunal. On that basis the Tribunal have generally accepted the evidence that she gave, given that it was unchallenged.

Facts

[15]The claimant gave evidence remotely, due to childcare issues (this also necessitated delaying her evidence until the second day of the hearing as she had not appreciated that she would need to attend the hearing to give evidence). There was some question once she realised this as to whether an application would be made to postpone the hearing however in the end she did not do so (and the respondent had indicated that it may pursue her for costs if she did).

[16]We generally found the claimant and her witnesses to be honest and candid in their evidence. Although it was clear that Mrs Jamieson had her own (negative) views about the respondent from her own personal experiences, we nevertheless found her evidence to be generally open and sincere. It was put to her by the respondent that paragraph 9 of her witness statement (in which she alleged that an individual named Fehmeeda had been detrimentally treated because of pregnancy) was incorrect as it referred to a Stoke branch when no such branch existed. Notwithstanding that, we found her evidence to be credible overall, accepting her evidence that her recollection was of Mr Ahmed referencing Stoke to her.

[17]In relation to Mr McDonald, whilst we found his evidence to be an accurate representation of the situation as he understood it, we did take into account that much of what he said was hearsay (i.e. based on what the claimant had told him), rather than based on his own direct experiences.

[18]The Tribunal heard evidence on behalf of the respondent:a. Miss Sahima Kouser, a Regional Manager at the respondent (and not Register Manager as she had stated in her witness statement). We note that in her witness statement Miss Kouser’s name is spelt both as “Kouser” and “Kousar” and within the documentation her email address is referred to as “Kouser” (e.g. page 158) but there was a Confidential Note dated 21 November 2022 which spelt it as “Kousar”. In these Reasons we adopt the spelling “Kouser” although we cannot say for certain which is correct; and

b. Mr Edward Owusu-Ansah, Managing Director of the respondent.

[19]Mr Owusu-Ansah gave his evidence remotely, and Miss Kouser initially did the same. However there were a number of issues with the quality of her connection and therefore at the end of the third day (when she was part way through her evidence) we requested that she attend in person to complete her evidence, which she did.

[20]We did not hear evidence from Mr Aftab Ahmed, a Care Co-ordinator at the respondent. The Tribunal questioned this, as it was apparent to the Tribunal (and will be apparent from our Reasons below) that he was central to much of what happened and on some points was the only person who would have been able to give evidence on behalf of the respondent. The respondent had not provided any information to the Tribunal in advance of the hearing, or at the start of it, to explain his absence, however when asked directly about this it was explained that he was on long term sickness absence and that this had been the case since June 2024. We were not provided with any medical certificates to support this.

[21]Whilst we have no reason to doubt that Mr Ahmed was unwell at the time of the hearing, the Tribunal notes that at the time witness statements were due to be exchanged (23 May 2024) he was not off sick. In the end witness statements were not exchanged until July 2024 but at that point he had only been absent for a few weeks and therefore the Tribunal are surprised that the respondent did not raise the matter and/or apply for a short delay in providing his witness evidence. Likewise the Tribunal notes that no application was made for him to submit a written witness statement without him attending the hearing: the respondent simply did not call him at all or request a postponement of the hearing. We ascertained that no one at the respondent had in fact sought to discuss with Mr Ahmed whether he might be well enough (despite his absence) to participate in some way in this Tribunal process. Miss Kouser said that this was because you cannot contact someone whilst they are off sick, but it appeared that there was no specific medical advice to that effect. We do not know why the respondent did not take any steps to address the fact that a crucial witness was not able to attend the hearing, but we record that Mr Ahmed would have had relevant information to provide and we do not consider that Miss Kouser or Mr Owusu-Ansah could adequately explain certain matters, as explained in our findings below.

[22]In relation to Mr Owusu-Ansah, the Tribunal found that his oral evidence on occasion contradicted the written documentation (for example he said at one point that the claimant had chosen not to work at Christmas 2022 when the clear documentary evidence was that she was ill at that time). We consider that in reality he lacked the knowledge of the matters relevant to the case and therefore his evidence was of little assistance to the Tribunal. In addition, we found that some of his answers were rather strategic in nature, seeking to say what he felt would paint the claimant in a negative light and the respondent in a good light, rather than always answering the direct question put to him. Whilst we do not consider he was trying to mislead the Tribunal in any way, we do take that into account when considering the veracity of his evidence.

[23]Finally, we address the witness evidence of Miss Kouser. As will become apparent from our findings of fact below, significant issues arose during the hearing about the authenticity of certain pieces of documentation. Again as will become apparent from our findings of fact below, the Tribunal found that certain documents put forward by the respondent are not reliable and were not a genuine reflection of what they purported to represent, including signatures being copied and pasted from one document to another in order to give the impression that the “signatory” had approved the contents (when they had not). In evidence Miss Kouser continued to assert the authenticity of such documents, when it should have been apparent to her that they were not authentic (we address this further at the relevant points in our findings below). In those circumstances we consider that, in addition to certain documentary evidence being unreliable, it flows from this that Miss Kouser’s oral evidence should also be viewed as unreliable. Facts The claimant’s status

Facts

[24]The claimant originally commenced work for the respondent on a zero hours contract in 2020. She remained there until early 2022, when she left on what appear as far as we can determine to have been amicable terms. The claimant had a good relationship with the respondent during that period including with Mr Aftab Ahmed who was the Care Co-ordinator (this is the person responsible for the day to day delivery of the service, including rotas and day to day operations). It appears that he also subsequently left and then returned to the respondent, as we explain further below. The claimant describes Mr Ahmed as having been supportive at that time when she needed time off for health reasons or when she had issues with her rota or workload, saying that he would sort the issues out for her.

[25]The claimant returned to the respondent on 16 September 2022, and at this stage Ms Chelsea Chatterton was the Care Co-ordinator. Initially, the claimant started with fewer hours than she wanted to have on a long term basis, but she accepts that normal practice is to start with fewer hours and build it up over time. Given that the respondent hired the claimant for a second time, we assume that the respondent also had no issues with the claimant at that stage.

[26]Again the claimant was engaged on a zero hours contract. There is a dispute between the parties as to whether the claimant was an employee or a worker, and we refer to our conclusions on that in the Conclusions section below. However, we make the following findings of fact about the documentation in place following the claimant’s return in September 2022:a. We were provided with a document entitled “Contract of Employment – Updated” specified to have last been updated on 16 September 2022 between the claimant and the respondent (page 517);

b. Throughout that document, there are references to “Employee”, “The Company will employ you…”, “Start of employment date”, and “your employment….”. We do not intend to recite its contents in detail here, but it contains the types of clauses that would ordinarily be expected in a contract of employment, including a requirement for holiday to be approved before any holidays are booked by her “line manager”, post termination restrictive covenants, reference to a probationary period and reference to disciplinary and grievance rules and procedures being applicable to her. It also contains a place of work clause which lists Edgbaston but also provides that the claimant may be required to permanently change her place of work to any other branch office within a ten-mile radius;

c. The contract states that “the Company will endeavour to give you advance notice of the hours (and days and times) that you will be required to work in a particular week and you should confirm your availability to the Company as soon as reasonably practicable”.

d. The contract does however state that the claimant is not guaranteed a minimum number of hours of work each week and that she is therefore free to engage in other work or activity for other employers.

e. We were provided with extracts from the respondent’s policies and procedures, including a “Key Facts” page (page 646) which provided that “workers are not to be used on a persistent and regular basis and are to be used ‘as-and-when needed’. Workers will not benefit from rights that are only available to employees”. On another page (page 645) it stated that “Ave Maria Care (Edgbaston) acknowledges that consistency of care is important for building relationships with Clients. For this reason, Ave Maria Care (Edgbaston) will ensure that workers and self-employed contractors will only be used as and when needed”.

f. In the “Rota Planning” section (page 647) it stated that rotas needed to be organised and planned well in advance which involved, amongst other things, “Ensuring that full and part time staff have regular, agreed shift/work patterns”.

g. On the page headed “Summary of Employment Rights if an Employee is Pregnant” (page 643) it provided (amongst other things) that the employee would be entitled to paid time off for antenatal care and protection from detrimental treatment on any grounds partly or wholly related to pregnancy.

[27]The overall theme of the policies and procedures was that there would be a mixture of workers, self-employed and employed staff, but that generally employees should be used to provide consistent care for clients, with workers / self-employed staff being used only on an ad hoc basis where necessary.

[28]As to how the relationship between the claimant (and other carers) and the respondent operated in practice, we find as follows:a. Rotas were prepared the week before and circulated on the Friday of each week, for the following week’s work;

b. Although we heard in evidence from the respondent that individuals on zero hours contracts were free to choose their own hours and accept or reject shifts as they saw fit, in reality the rota was simply sent out with an expectation that the individuals would work the shifts set out in it: there was no specific process for “accepting” a shift;

c. In an email dated 12 January 2023 (page 14 of the “Miscellaneous Screenshots and Texts supplementary disclosure from the claimant) from an individual named Jemma (who we believe to be Jemma Kelleher, Registered Manager), it stated that “I would like to highlight that you can only change your availability twice a year”. We cannot see the full recipient list however given that the claimant disclosed this and given that the email referred to below was sent to the claimant, we find on balance of probabilities that this email was sent to the claimant.

d. We saw an email dated 3 February 2023 from Ms Kelleher (page 150) which was sent to a number of individuals, including the claimant, and which included the following: “I have also been made aware that care staff in Edgbaston give their availability weekly, this is not how things are done at Ave Maria. When you are employed with us we request that you give fixed availability this therefore ensures that rota’s can be templated and clients see regular faces …. I would also like to remind all carers that we do require carers to give either a set day at the weekend or work alternative weekends this is and as always been the case at Ave Maria. Any changes to availability are 4 week notice and this applies to annual leave also.” We find that this represented the reality of the working relationship and that, given that the claimant was a recipient of the email, that it applied to her directly. We find that there was a general expectation that individuals would work fixed shifts and that individuals were not permitted to accept or refuse work in the manner suggested by the respondent.

e. For completeness, we would also comment that Mr Owusu-Ansah suggested that the fact that the claimant’s shifts varied during the relevant period in this claim demonstrates that the claimant can vary her hours. This misses the point that the claimant’s claim is largely about the fact that she says the respondent reduced her hours after she advised them of her pregnancy (for reasons related to that pregnancy) and therefore the fact that her shifts did vary in that period cannot be determinative.

[29]As to the claimant’s hours of work, her normal hours were to work a full day Monday, half day Tuesday, full day Wednesday, not to work Thursday / Friday and then originally to work on Saturdays, but as we explain below this was later amended at the claimant’s request on four weeks’ notice so that she was working alternate weekends. Whilst she was on a zero hours contract, we do find that she had a normal working pattern. The respondent’s ways of working

[30]The respondent had a number of carers, including the claimant, whose role was to visit clients at their homes. Some clients needed visiting up to four times per day, seven days a week. Therefore, the respondent aimed to have a group of around three to four carers assigned to each such individual, as it would not be possible for one carer to carry out all of the required visits for certain clients.

[31]Some care visits were “singles” whereby the carer would visit alone, and some were “doubles” whereby two carers would visit together. There were a variety of reasons why a particular care visit might require a “double”, for example if it included manual handling / lifting, if it would require a hoist, or if there had been previous issues raised by either the client or the carer (e.g. in relation to their safety). Some of the reasons why a particular client would require a double was because of heavy lifting, but sometimes it was not. Some visits would be carried out by “drivers” and some by “walkers”.

[32]It appears, and the respondent accepts, that on occasion there had been a practice of carers going alone to “doubles”. The respondent asserted in evidence that during the COVID pandemic and period of recovery thereafter it was unavoidable and preferable to cancelling the client. Miss Kouser submitted that she had instructed the claimant not to do this and that if a fellow carer failed to arrive for a “double” (therefore leaving her to do it alone) she should report this.

[33]We also saw an Inspection Report from the Care Quality Commission (CQC) dated 28 June 2023 but based on an inspection on 11 January 2023 (page 611). We heard that Mrs Jamieson had made a complaint to the CQC but it was not entirely clear to us whether this report arose out of that complaint or something else. Within that report it identified that care calls were on occasion attended by insufficient staff (page 612) and also that “Some staff had recorded misleading and inaccurate information on the provider’s electronic operated system in relation to the completion of people’s care calls and care tasks” (page 634). Whilst this relates to care records rather than employee records, we note it at this stage because it is relevant to our later findings about the respondent’s practices regarding documentation.

[34]We cannot say definitively whether by late 2022 the respondent was actively trying to stop the practice of sending carers along to “doubles” but whether or not it was an active practice at that time, we do find that both the claimant and Mrs Jamieson interpreted it as an active practice (see for example pages 482 and 484). We also find that in November 2022 the claimant was turning up to shifts that should have been doubles but finding herself alone (page 482). We find that the claimant continued with those shifts and that the claimant was unhappy about it, but also that she had not been actively complaining to the respondent about it at that point. The period prior to 21 November 2022

[35]As referenced earlier, the claimant would have had to build up her hours after returning to the respondent from September 2022. She was keen to do so. In addition her child started school that month which meant that she had some pre-booked annual leave (to assist her child with settling into school) and therefore she volunteered to work some additional Thursday shifts (which was usually a non-working day) to try to make up her hours. This was pre-arranged before she came back to work in September 2022. We find that the intention of both parties was that the claimant would build up her hours into a regular pattern of work, within the constraints of her children (i.e. not working Tuesday afternoons, or on Thursdays or Fridays).

[36]On 8 November 2022 the claimant emailed the “on call” number asking “Just wondering if I could do Robbie’s sit permanently on Monday and Wednesday. Lewis has said he wants to cut hours down so can’t see him being too bothered. …” The reply received was “yeah that’s fine”. We refer to “Robbie” as “RS” in these Reasons.

[37]The on call number is a number that is used by carers to communicate with the office during shifts. We heard from the respondent that it was intended to be used for emergency contact about issues rather than general day to day HR and operational matters, however we find from the various exchanges we were referred to in the file that there was a practice by both the claimant and respondent to use the number for day to day issues relating to shifts and operational matters.

[38]From this particular exchange, we find that the respondent has agreed to this “sit” (i.e. appointment) being permanently allocated to the claimant on those days. We also find that her reference to Lewis means that the claimant is considering the impact on the person who is currently regularly assigned to that slot, which supports the position that carers are intended to be assigned to individuals on a regular basis. Disclosing her pregnancy to the respondent

[39]On 21 November 2022 the claimant emailed Miss Kouser and advised her that she was 6 weeks pregnant (page 141). She said that Ms Chatterton was going to speak to her and we also saw a text message (page 214) in which the claimant advised someone who appeared to be in management that she was pregnant, and we consider it likely that it was the Care Coordinator. Therefore on the balance of probability we find that by 21 November 2022 Ms Chatterton had also been made aware of the claimant’s

[40]In this email, as well as disclosing the pregnancy itself, she raises a concern about the amount of physical work involved in dealing with one particular client, “Kev” (who we will refer to as KL) and asks to be removed from his call altogether – she references getting a midwife note and therefore it is clear that the reason for this is related to pregnancy. She references a concern about whether someone would turn up to help her, which again suggests her perception that individuals would be sent alone to “doubles”. Miss Kouser is therefore aware that the claimant has that perception.

[41]The claimant went onto say that “I don’t struggle with any of my other calls including Robbie as his hoist is ceiling attached” and “”I am also okay to carry on working as normal as this is all I’ve ever done”. She is therefore also making clear that it is only KL that she wants removing from her. We also accept the claimant’s evidence more generally that RS was a sit which involved only light duties and therefore was suitable during pregnancy.

[42]She also separately gives four weeks’ notice that she wishes to amend her weekend availability so that instead of doing a full day on Satursdays, she would instead do morning and lunchtime every other weekend (both Saturday and Sunday). We note that she is clearly aware of the expectation to give four weeks’ notice and is complying with it (i.e. she believes that this requirement applies to her).

[43]During the hearing, the respondent disclosed an additional document entitled “Confidential Note” dated 21 November 2022. This purported to show a telephone call between Miss Kouser and the claimant on that date at 4.45pm in which Miss Kouser allegedly told the claimant that the concerns she was raising were serious and that she should have alerted Miss Kouser to her pregnancy so that a risk assessment could be carried out. The note records congratulating her and suggesting a risk assessment be done the following day, but that the claimant could not do it that day as she had plans already. This call was also referenced in a document produced by the respondent by way of timeline for the purposes of this litigation (page 134). The claimant says that this discussion did not happen.

[44]In evidence Miss Kouser initially said that there was no phone call on 21 November 2022 in response to the email. However when she was pointed to page 134 in the file she said that this was a phone call about the concerns raised regarding KL, not the pregnancy, and that in fact a phone call did take place. The respondent then provided the Tribunal with the Confidential Note dated 21 November 2022. We note first of all that the purported note does address the question of pregnancy, and not only KL.

[45]At this stage it is necessary to consider this document alongside some other assertions made by the claimant about the documentation disclosed by the respondent. The respondent’s position is that all of the documents it has disclosed (both in the hearing bundle and separately) are accurate and not fabricated. The claimant however points to a number of documents, including this one (and notably her risk assessment dated 3 January 2023 and appraisal dated 5 January 2023 which we address later in these Reasons), as being fabricated and/or reflecting discussions that never happened. This is a serious allegation to make.

[46]We have found that the CQC report referenced above found that inaccurate and misleading information had been recorded on the respondent’s electronic systems. Although this related to client care rather than HR matters, this was the same operating system that was used for HR matters (Access Care Planning).

[47]We would add that this aligns with comments made by Mrs Moore in her witness statement that she had personally experienced the respondent preparing documentation purportedly signed by her but which she had not signed and which reflected a meeting which had not in fact taken place.

[48]In addition, as we turn to later in these Reasons, we were taken to a number of documents which were purportedly signed by the claimant at the time individually, but which the claimant asserts have such identical signatures that they must have been copied and pasted across. We note that the claimant’s witness statement signature looks different to her signature at page 681 of the file (appraisal) and to the eye drops assessment form at page 735, and all are different to that in her purported contract of employment (page 721). There are further examples. However, we also find that the signatures at pages 726 and 728 (supervision forms) and 730 (appraisal form) are identical, both in relation to the claimant’s signature and Miss Kouser’s. They are too identical.

[49]The evidence of both the claimant and respondent is that documentation is signed live, face to face, each time a document is submitted onto the “app” on which it is stored, with a fresh signature for each document. We find that electronic signatures on an app will not always look the same as a normal handwritten signature, therefore the fact that the signatures do not look like that on the claimant’s witness statement is not conclusive. However, we do consider that the signatures in the appraisal forms we saw from 2021 and 2023 are too identical, along with those at pages 726 and 730 (which relate to both the claimant and Miss Kouser’s signature). We do not consider it would have been possible for the parties to replicate that level of identicality without it being copied and pasted across (for example, the angle of the signature is identical as well as the exact formation of the lettering) and thickness of the pen mark.

[50]We recognise that some electronic systems allow for electronic signatures t be saved and re-used, however the clear evidence of both parties was that documents were signed at the time by either a pen or finger and signatures were not carried forward or copied and pasted across. On balance of probabilities we therefore find that as these signatures are identical to each other, these documents were not on balance of probabilities signed live. This aligns to the claimant’s position in relation to certain documentation such as her later “appraisal” that it did not happen.

[51]We recognise also that the Confidential Note dated 21 November 2022 does not contain any signature, however in light of the considerable issues raised regarding documentation in this case we do not consider that it can be addressed without also considering the issues about signatures and authenticity more generally.

[52]The respondent says that, in relation to Confidential Notes, the date on which they are recorded as “last updated” cannot be manipulated. However, as we will turn to later in these Reasons, on balance of probabilities we do not accept this (see later findings regarding Confidential Note dated 30 December 2022).

[53]Taking all of the issues relating to documentation into account, we find on balance of probabilities that the notes recorded on the respondent’s systems do not necessarily record a contemporaneous account of the particular event.

[54]In relation to the Confidential Note dated 21 November 2022, we therefore cannot rely on it as an accurate representation of any discussion between the parties.

[55]In any case Miss Kouser emailed the claimant on 22 November 2022, congratulating her on her pregnancy. The fact that she started the email with “Thanks for the email. That is great news of your pregnancy ” supports the claimant’s contention that they had not in fact spoken the previous afternoon. In this email, the respondent referred to the need to complete a risk assessment, asking when the best date would be to do that.

[56]The claimant replied on 24 November 2022 (page 141) asking to come in on Tuesday after her shift to do the risk assessment (that would be 29 November). Miss Kouser could not recall in evidence what happened following that email, but in a document that she prepared for the purposes of this litigation (at page 135), she said “Kayleigh did not contact Sahima to arrange the pregnancy risk assessment”. That statement is not correct. On the balance of probabilities, we accept the claimant’s evidence that Miss Kouser did not reply to the claimant’s email given that we have not been provided with any such reply. The reason the risk assessment did not happen before the claimant’s period of leave (to which we turn below) is therefore because the respondent omitted to set it up. The claimant’s annual leave

[57]The claimant had a period of annual leave from 1 to 11 December 2022. 1 and 2 December 2022 were a Thursday and Friday (her non working days) and therefore in reality her annual leave period was from 3 to 11 December 2022. At some point around that time (and before 8 December 2022), Mr Ahmed returned to his role as care co-ordinator.

[58]On 8 December 2022, whilst on annual leave, the claimant texted the on call number (page 216) saying that it “would be really helpful if I could have Robbie’s sit on the 2 full days I work” (i.e. Mon and Weds). This was a Thursday. She then added “Also don’t know if Sahima told you but I’m supposed to be having a risk assessment but haven’t been into the office yet”. She doesn’t disclose her pregnancy as such, and she sends it to the on call rather than Mr Ahmed specifically. However, we heard from Mrs Jamieson that the staff used the office number generally and were not generally supposed to use individual numbers unless working with a carer on a call, so this was the means that the claimant would use to contact Mr Ahmed on balance of probabilities.

[59]It follows that, if Mr Ahmed was unaware of the claimant’s pregnancy, he would want to understand why there was a risk assessment to be carried out. He did not ask about that and so we assume that he either understood her to be pregnant, or verified this with Miss Kouser. On balance of probabilities we find that from this date it was more likely than not that he was aware of her pregnancy.

[60]The rota for the following week would have come out on 9 December 2022. The claimant messaged the office on that date (whilst still on annual leave) (page 217). Some of the content is illegible due to poor print quality, however we have replicated it as far as we are able to do so below: "I've messaged Sahima and [illegible] if I'm doing [illegible] run it won't be worth me coming out as it takes me 40 minutes to get to Longbridge. As my rota has now changed there's no point me coming back to work. I can't be paying that much fuel for a few hours. I've gone on annual leave to come back and my calls have been changed. I have done the same calls since I started back with the company. The guy that [illegible] them drives too so not sure why it's been taken off me".

[61]We find from this that the claimant’s rota had been changed from the usual client list and that the claimant was raising a concern about this. We find that the change was that RS’s sit had been removed from the claimant, and that it had been given to a new carer named Nawaz Khan. This of course was a sit that had previously been assigned to her permanently. She then received what appears to be an automated reply bearing no relevance to the points raised.

[62]The claimant also emailed Miss Kouser on 9 December 2022 asking whether she could transfer to the Sutton branch and whether there were hours available there, because her rota had been changed and without RS on the rota it was not worth her travelling (page 142). Miss Kouser replied on the same day asking her to come in on Monday or Tuesday (12 or 13 December) to discuss it. On Sunday 11 December 2022 the claimant replied (also page 142) to say that she would see what she could do but if she could not, then asking whether she could contact the Sutton office directly. The claimant said that it would be easier for her than the Edgbaston branch and she would like to transfer as quickly as possible.

[63]It was put to Miss Kouser in evidence that she did not respond to that email: we have not been provided with any response and Miss Kouser was unable to confirm whether she had or not We find on the balance of probabilities that there was no reply to this email, and this is consistent with a reference in a message sent by the claimant to Mrs Jamieson (page 501) saying that Miss Kouser had ignored her about her transfer.

[64]The respondent has sought to argue that Mr Khan could offer more consistency to the client because he worked a 7 day week (5 full days and 2 half days). The respondent also suggested that it was more difficult to give Mr Khan a different “run package” (i.e. group of clients) because an alternative area in Harborne required a female carer due to nature of the clients there. At a later stage, in relation to why the run was not re-assigned to the claimant, the respondent also said that it would be unfair to take the work back from Mr Khan because he had an expectation of it and because RS was settled with him.

[65]As at 9 December 2022, the claimant had a permanent arrangement with RS. It is true that the claimant did not work a seven day week, as most people do not (nor should they under the Working Time Regulations 1998), however the usual practice was to have consistent carers spread across three to four people through the week. Therefore, the fact that she did not work a seven day week did not prevent her from being a consistent carer. We do however accept that there will be runs that require a gender specific carer. We also accept that as Mr Khan was a new member of staff, he would need to build up work as the claimant had done. We also understand Mr Khan to be a friend of Mr Ahmed.

[66]Mr Ahmed did not give evidence so we did not hear from him as to his motivation when he set the rota. There is no documentary evidence as to the reasons why the shift was removed from the claimant at that particular time. We do however know that the removal of RS from the claimant’s rota came within one day of the claimant messaging Mr Ahmed about her risk assessment (and therefore him being on notice of her pregnancy at the latest by then).

[67]We have considered whether the need for a risk assessment was relevant to the decision to remove RS from the rota. However, the respondent had omitted to organise the risk assessment and therefore it cannot in our view have been a pre-requisite of her working. The claimant has also identified this client as being one particularly well suited to her as a pregnant individual given the light nature of the work there.

[68]We have also considered whether it was taken off her because Mr Khan is a friend of Mr Ahmed. Firstly we note that this is not a submission that has been put forward by the respondent at all. In any case however, even if that were the case the respondent has a number of carers and we would need to consider why it is the claimant’s client that was given to him (as opposed to other clients). The simple fact is that within 24 hours of the claimant indicating to Mr Ahmed that she was pregnant, work was taken off the rota and the respondent has not put forward any contemporaneous evidence to indicate why that was. The respondent’s position that consistency of care is required does not hold up when it is considered that the claimant’s annual leave period was for only just over a week and we heard evidence from Mrs Jamieson that normal practice was for the respondents to arrange temporary cover during annual leave, but then return the client to that carer once they returned, as they did with her own period of absence at around the same time.

[69]In considering what Mr Ahmed’s motivation was, we have also considered it relevant to draw an inference from our later finding as to what his motivation was in later removing SM from the claimant’s rota (please see our findings on this below). We find on balance of probability, taking all of the above into account, that the reason why Mr Khan was suddenly given the claimant’s slots with RS was motivated by the fact that he now knew of the claimant’s The claimant’s absence

[70]The claimant returned to work on 12 December 2024 but felt unwell. She sent a message to the on call number on 12 December 2022 (page 218) saying: “I’m really struggling today, think I have a chest infection and [illegible]. Any chance I can finish early, don’t know if I can’t manage my other calls”. The reply was “I can cover Ian and George for the morning if that helps you”. There was no offer of cover in the afternoon provided. The claimant accepted that offer but added “Any chance you can cover Sarah. Don’t think I can’t be chopping veg and washing up for an hour. She’s always funny when people have colds anyway” followed by “I just can’t do it! I’m struggling to breathe because of the cold air. Haven’t had my flu jab yet and it’s causing me to have stomach cramps. Think I need to phone the doctor” and then “Haven’t even been seen by a midwife yet or had a scan. So don’t know what’s happening”. The reference to “Sarah” is to SM.

[71]From this we can see both that the on call text message number is being used for day to day work contact, and also that the claimant is clearly referencing her pregnancy so is assuming that this is known by the reader of the messages (presumably Mr Ahmed). She also references that she cannot chop vegetables or wash up, but in the context of having a virus not in the context of pregnancy (this is relevant to SM being removed from her rota at a later date).

[72]We have seen a message from later on 12 December 2022 from the claimant to Mrs Jamieson, in which she says at 11.25am “he’s getting on my nerves! I feel really bad….Asked if I could go home as I’m struggling and he’s just taken 3 off! Not really much help. I’ve asked for Sarah taken off but they have ignored” (page 436) and then later “They’ve let me go home after Sarah and Christine! Had to beg just can’t do it.” This shows that the claimant had not managed to find cover for SM on her rota.

[73]Ultimately the claimant worked for 5.5 hours on 12 December 2022 then went off sick. It was from this point onwards that the claimant says that things really started to go downhill in her relationship with the respondent. The claimant visited her doctor the following day, who diagnosed a viral infection.

[74]We saw an email which we think is dated 13th December although the quality is such that it is not entirely clear (page 219) where the claimant was asked whether she would be well enough the following day, and she replied to say that she had a doctors appointment at 2.30 (the one referred to above) and that she did not feel great.

[75]On 20 December 2022 the claimant emailed Mr Ahmed and Miss Kouser saying that she would be returning to work on 27 December 2022 (page 143). She heard nothing until 28 December 2022 and was not put back onto the rota and therefore was unable to return to work on 27 December 2022 despite being fit to do so.

[76]On 21 December 2022 the claimant sent a message to Mrs Jamieson about her work (page 508), in which she commented that she had emailed them (presumably management) but hadn’t heard anything back. She also said that she had looked at the calls she was doing and they had all been allocated, and she was worried that there wouldn’t be hours for her. In this she is referencing her email of 20 December 2022 about returning to work and she is worried about her shifts.

[77]Miss Kouser replied to the claimant’s email on 28 December 2022 at 4.30pm asking the claimant to come into the office the following day for a return to work interview (page 143). We note that 29 December 2022 was a Thursday and therefore a non-working day for the claimant. The respondent submits that this was required before the claimant could be added back into the rota. However, the claimant had emailed over a week earlier to advise of her return to work date and the respondent could have taken steps to arrange that meeting earlier so that she could carry out duties on 27 December 2022 (for example doing the return to work meeting first thing on that date). In addition we note that the respondent is saying that it was not possible for the claimant to work without a return to work meeting, when in relation to the risk assessment the respondent had showed no urgency and appeared happy for her to work before that was carried out. In addition, we heard evidence from Mrs Jamieson that she had a week off sick in December 2022 herself but was not required to complete a return to work interview. It might be that the respondent accidentally said return to work interview when it meant risk assessment however the respondent has not put this forward in its submissions and therefore we proceed on the basis that it was a return to work interview.

[78]On 29 December 2022 at 5.21pm the claimant replied saying that she had only just seen that message, and explaining that she could not come in the following day as she was unavailable, and asking to come in on Tuesday instead (page 143). Given that it was a non-working day, it was reasonable that she had not seen the email. Miss Kouser replied (also page 143) saying that the claimant was on the rota that weekend so ideally the return to work meeting needed to happen before then, and offered to do it over the phone that day instead (again a non-working day for the claimant). The claimant agreed to that and also explained to Miss Kouser that she had looked at the rota and wanted to remind Miss Kouser that she had given notice to change her weekend hours.

[79]The claimant then emailed Miss Kouser at 11.29am on 30 December 2022 (page 144) saying that she had spoken to Mr Ahmed and he had said that she has to have her risk assessment before she could be sent out to work. This email is stated to be a protected act. Whilst it is certainly good practice to do the risk assessment as quickly as possible following an organisation becoming aware of pregnancy, we note that she was able to work prior to that period without the risk assessment having been done. The respondent does not appear to have been following its policy (page 756). She also raised a concern that her hours had decreased. She said “Im just concerned my hours have decreased and i’m confused as to why. If it’s relating to my pregnancy I am okay to work the hours I was doing before. I’ve work to the end with both my pregnancy’s and been fine…” We find that the claimant was raising clear concerns about her reduction in hours in this email and referencing her pregnancy, although there was no allegation of discrimination.

[80]Another document which was disclosed by the respondent during the hearing was a 21 page set of additional documents which included a “Confidential Note” dated 30 December 2022 at page 5 of that documentation. It was time stamped as being last updated by Mr Ahmed at 10.44 on 30 December 2022 (and we note that other Confidential Notes have time stamps using the 24 hour clock and so we find that this represents 10.44am and not pm). This note is an alleged summary of a telephone call between Mr Ahmed and the claimant which is stated to have taken place on 30 December 2022 at 10.15am. Within the note it states “Kayleigh also said Im just concerned my hours have decreased and i’m confused as to why. If it’s relating to my pregnancy I am okay to work the hours I was doing before. I’ve work to the end with both my pregnancy’s and been fine…”

[81]The wording used here is identical to that used in the claimant’s email to Miss Kouser on 30 December 2022, even including the spelling and grammatical errors. We find that the content of one has clearly been copied and pasted into the other. However, what is surprising is that the email from the claimant is time stamped at 11.29am on 30 December, over an hour after Mr Ahmed supposedly had the telephone call with the claimant. In our view, either the claimant copied and pasted the attendance note into the email, which does not seem likely given she was not even working that day and it would be a very strange thing to do, or Mr Ahmed copied and pasted it from the claimant’s email which Miss Kouser must therefore have forwarded onto him. We find on the balance of probabilities that this is what happened, although we have not been provided with the email from Miss Kouser to Mr Ahmed to know what she said to him about it. Therefore, the confidential note cannot have been prepared at the time stated on it and must have been prepared at some other time. We therefore find that caution must be taken over the internal confidential notes prepared by the respondent. This supports our earlier findings about the confidential note dated 21 November 2022.

[82]In relation to RS not being on the claimant’s rota following this period of absence, the respondent has said that someone would have had to cover her clients during her absence on annual leave followed by sick leave, and for continuity purposes that person should then retain those clients, in particular RS. As we have explained, during a short period of absence the respondent’s normal practice would be to cover that absence and then return that client to the individual member of staff who had been absence. RS would have required multiple carers and therefore it would have been possible for both Mr Khan and the claimant to attend calls for him. Had it been a lengthy period of absence, then we could see some force in the argument that, at that point, the client would have become accustomed to the particular individual. However, on this occasion, the decision to remove RS from the rota was taken by 9 December 2022 when the claimant received her rota showing that he was not on it. This was before the respondent even knew that she would become ill on 12 December 2022. This cannot therefore have been the reason, as at the time he was removed from her rota it was simply a short period of absence dur to annual leave. In addition, even if an individual were removed from a rota because of continuity reasons as the respondent suggests, notwithstanding that the individual is on a zero hours contract we would have expected the respondent to take steps to find alternative work given the clear settled shift patterns which the claimant was working at that time. The risk assessment

[83]The claimant returned to work on 2 January 2023 (page 560), before a risk assessment or return to work interview was carried out. We accept the claimant’s evidence that both took place on 3 January 2023 at the respondent’s offices. We were provided with a copy of the purported risk assessment (page 579) which is unsigned, however the claimant has submitted that this is not the actual risk assessment document that was filled in at the risk assessment. The respondent says that the risk assessment was completed on a document on the computer which is filled in and which is not signed (as per the copy in the bundle), whereas the claimant says that it was done on an app and she had to sign it within the app. The claimant says that she did not see a document, she was just asked a few questions and then signed electronically into the app on Miss Kouser’s phone without seeing a document. Miss Kouser said in evidence that she printed a copy out for the claimant on the day, which the claimant disputes.

[84]Whilst the risk assessment document in the file is relatively detailed, the claimant says that in reality the risk assessment was very quick (around 10 to 15 minutes) and lacked professionalism (she referred to the team eating takeaway during it). The respondent says that it took some time to go through the risk assessment with her and disputes her assessment of it.

[85]We have been provided with a copy of a message that the claimant sent to Mrs Jamieson on 3 January at 1.52pm (page 424). In this message she says “Pointless waste of time! As they was all eating take away. Sally was in there I don’t like her! Was just rushed and felt awkward to mention transfer so will just mention it another time…” Clearly therefore the claimant’s perception on the day was that it was a rushed meeting and we note that she did not raise the subject of transferring to Sutton because of the environment it was done in. This is further supported by a later email she sent on 3 April 2023 (page 161) where she said to Miss Kouser that the risk assessments weren’t very thorough as they were all eating and felt very rushed. Miss Kouser had replied to that email saying that the risk assessment was completed with the questions that were required to be completed: we note that she does not deny that it was done quickly or that they were all eating.

[86]There were certain comments within the purported risk assessment that we consider relevant:a. “Kayleigh expressed that she was okay with doing double ups and single calls and did not want to come off the calls she is doing. In regard to KL double up call KH is aware that she needs to ring the office to report any concerns she has regarding double up partner running late. Under any circumstances she cannot do any double up calls on her own. She would put the risk on herself and the baby also the client.” If this were said it would suggest that the respondent had told the claimant not to do double shifts alone. However, if the document were not reflective of the actual risk assessment then we would not consider ourselves able to conclude that this comment was made.

b. “KH expressed her interest in transferring to the Sutton branch…”. It documents that there is insufficient work in that branch currently and that this would be reviewed at a later stage if a new run could be built up in that branch because they do not want the claimant to lose out on hours, and it says that the claimant was happy with this. This directly contradicts what the claimant said in her message to Mrs Jamieson where she said that she did not raise this at the meeting.

c. Within the risk assessment it says “KH has had a check up on 14/3/2023” (page 582). This shows that either the document was created after 14 March 2023, or was updated after that date and it is not possible to know which elements of the content were from 3 January 2023. Interestingly, there is a further version of the risk assessment in the file which is purported to be the updated version and is dated as having been reviewed on 15 March 2023 (page 757, dated on page 762) so it is odd that the comment relating to 14 March appears in both versions as you would expect it to appear in the later version but not the earlier one.

d. The risk assessment dated 3 January 2023 refers to the claimant’s absence in December 2022 as being “with viral infection but then pregnancy sickness kicked in then was has pleurisy”. The claimant says that she did not have pleurisy and in fact it was Mrs Jamieson who had been ill with pleurisy. Mrs Jamieson confirmed in her evidence that she had had pleurisy, and we have seen the claimant’s doctor’s records from her appointment on 13 December 2022 (page 641) which does not reference pleurisy. The risk assessment also refers to the claimant as having had gestational diabetes both in previous pregnancies and specifically in this pregnancy: the claimant says that in fact she was not diagnosed with diabetes in her latest pregnancy until mid January 2023 (after the risk assessment).

[87]During the hearing we were also provided by the respondent with a typed document from the Access Care Planning system purporting to contain notes from the return to work and risk assessment discussions taken by Miss Kouser and recorded as last having been updated on 3 January 2023 at 1.38pm. This document referenced pleurisy, the transfer request and also general discussions about the claimant’s concerns regarding reduced hours, the respondent reassuring her that it did not reduce her hours but was simply making sure that the calls she was attending were safe for her, and the removal of RS’s sit call. In respect of that, it was documented that it was in the best interests of the individual and business not to take the current carer away from RS due to the family needing consistency. The notes recorded that the claimant confirmed that made sense and that she understood this better now. In essence this typed document supports the narrative set out in the risk assessment in the bundle, however we refer to our earlier findings about the caution that we must apply to the accuracy of documentation stored by the respondent.

[88]One possible explanation as to why the claimant may recall an app but the respondent is referring to a document is that the meeting was also a return to work interview and it occurs to us that the document in the app could instead have been the return to work interview. However, the point remains that we have been presented with a formal risk assessment document which the claimant says she has not seen and denies the accuracy of its contents. We have contemporaneous evidence from the claimant’s message to Mrs Jamieson that she did not raise the transfer issue (which is documented as having been raised in the risk assessment), whereas the purported risk assessment contains information from March 2023 which cannot have been provided at that time along with a reference to diabetes which had not yet been diagnosed, and pleurisy (which the claimant did not have). Therefore we find on balance of probabilities that the risk assessment document was not completed at the time of the meeting, and we prefer the claimant’s account of the meeting i.e. that there was some form of risk assessment but it was brief and did not cover all the points that the respondent says that it covered.

[89]We find that this document was completed at some later stage, by which time the respondent would have been aware that the claimant was raising various concerns and we find that it was prepared defensively to place the respondent in a better position to defend any claims against it. On that basis we disregard its contents and we consider it to be inaccurate (for example, we find that the claimant did not request a transfer at the meeting). It was either prepared, or at best updated, after 14 March 2023, and if the latter we do not know what the original said.

[90]In addition, having found that this document was not prepared at the meeting, it follows that Miss Kouser must be wrong in saying that this was printed out and handed to the claimant at the meeting. In fact, not only did Miss Kouser assert that, but she added in oral evidence that the claimant should have challenged the contents if she disagreed with them at the time (which of course she could only do if she had a copy). The claimant had subsequently requested copies in emails dated 18 April 2023 (page 198) and 29 April 2023 (page 190): had she already had a copy this would not have been necessary.

[91]Given that the claimant cannot have been given a copy of this risk assessment on 3 January 2023, and given that she cannot have been reasonably expected to challenge any inaccuracy at the time in those circumstances, we have to be cautious about the reliability of Miss Kouser’s oral evidence in addition to the issues with the documentary evidence. We therefore cannot rely on the oral evidence of Miss Kouser on this or indeed more generally. The appraisal

[92]On 5 January 2023 the claimant allegedly had an appraisal. The respondent’s position is that the appraisal took place face to face in the office and the respondent has provided a copy of the documentary record of (page 680). This was a Thursday and therefore a non-working day for the claimant, and we note that she was not paid for any work on this day (whereas if she had attended an appraisal clearly she would have been entitled to be paid for that time). Miss Kouser said in evidence that she thought it was in the afternoon but did not recollect the exact time. The appraisal form we were provided with states that it was last updated on 5 January 2023 at 3.54pm by Miss Kouser. The claimant says that the appraisal never happened and this document is forged: she says that she received a voicemail from Ms Kelleher asking her to complete an appraisal over the phone but that she did not in fact do this.

[93]Various comments are recorded in the appraisal document and we set out some relevant points below:a. “Kayleigh has reduced her hours as she is pregnant and wants to ensure she is safe and her baby. She is doing hours that are flexible for her”. In her witness statement Miss Kouser has said that the claimant actually requested a reduction in work hours during the appraisal.

b. A comment from the claimant that “I have always felt supported I just needed to change my availability of weekends where I do half day on Saturday instead of long day. Care coordinator is made aware and is taking this in consideration” and “Kayleigh has had her availability change agreed and she still remains a valued member of the team. She is hardworking and very reliable and an asset she does need to ensure she is logging in to all of her calls”. We note that, in addition to saying that this appraisal did not happen, the claimant also says that her change in hours was unrelated to her pregnancy and we accept that.

[94]The appraisal is “signed” by both the claimant and Miss Kouser at the end of the document. The claimant says that she did not sign this. Miss Kouser said in evidence that it had to be signed in the app at the time it was completed and that it had to be done fresh every time, and that once the document was submitted it could not be amended. In support of her position that the appraisal did not happen as alleged by the respondent on 5 January 2023, the claimant has provided a copy of a text which she says she sent to her partner on 5 January 2023 at 4.10pm (15 minutes after the appraisal form was supposedly last updated in the system) saying “I’ll come down in a minute if they don’t stop. See if she will play her shopping game on tablet” (page 266). She says, and we accept, that this message is about her children and that she was upstairs at home when she sent this. This is not determinative because it would be theoretically possible for the appraisal to have taken place earlier that day and Miss Kouser not to have uploaded it until the afternoon however it does indicate that by around 4pm at least the claimant is at home and not working.

[95]We also note that only a few days earlier, on 30 December 2022, we have clear evidence as outlined above that the claimant viewed the reduction in her hours negatively and had questioned this, explicitly stating that she was happy to continue to work her normal hours. It would therefore be odd for her to then request a reduction in her hours at her appraisal the following week. We also accept the claimant’s oral evidence that this was part of her qualifying period for the purposes of statutory maternity pay and therefore she actually wanted to work as many hours as possible to maximise her maternity pay.

[96]We have addressed above our findings about the signatures on various documents in the file, however for the avoidance of doubt we find that the signature which appears on the appraisal is not a signature which the claimant provided on that date and it has been copied from another document. We note that her appraisal document from 2021 (disclosed by the respondent during the hearing at page 1 of the respondent’s additional 21 page disclosure documents) contained an identical signature, too identical to be simply the same person on two separate occasions. We find that the respondent has added the claimant’s signature, and that this aligns with our above findings regarding the authenticity of documentation at the respondent and is further evidence of things being backfilled by the respondent at a later date.

[97]A final point to note is that the appraisal document also has a further time stamp at the bottom of the page of 22 May 2023 at 3.41pm. Miss Kouser says that this is when she downloaded the document but she could not recall why she had done so at that time. This was when the claimant was about to start maternity leave so it would be an unusual time to be downloading it, however it is stated to be within a set of documentation amounting to 71 pages in total and therefore on balance we consider that the respondent was potentially printing off some or all of the claimant’s personnel file on that date for some reason. The key point is that this was after the respondent would have become aware that the claimant was considering taking things further.

[98]Overall, we find on balance of probabilities that there was no appraisal on 5 January 2023 and that this is not a reliable document. This again points to the unreliability of Miss Kouser’s evidence to the Tribunal. The rest of January 2023

[99]On 7 January 2023 the claimant messaged the on call phone asking for more hours on her rota, noting that she had gone down from 11 hours to 8 hours 45 with a gap in the day meaning she had to come home (page 236). The claimant also messaged Mrs Jamieson on the same day about the matter, complaining that it was not fair (page 514). The response from the respondent to the claimant is “ok” although the claimant says that this was not in fact resolved. The fact that she raised the matter again on 7 January supports our view that she would not have asked to reduce her hours at an appraisal on 5 January.

[100]On 18 January 2023 the claimant did not attend work due to adverse weather. She messaged the office saying “As mentioned on the phone my little girl won’t be doing [sic] to nursery so need to stay at home with her. Also just concerned as I live so far away the conditions will get worse” (page 233). This was because it was snowy. In evidence Mr Owusu-Ansah referred to this as a “dropped shift” which he said was at short notice without reason (and he said the same for a later incident the week commencing 30 January 2023). The claimant has suggested that the fact the paths would be slippery was on her mind as a pregnant person, however that is not what she said in her message to the respondent which instead focussed on childcare. Having said that, we do consider that a lack of childcare due to the snow amounts to a good reason for having to ask for time off at short notice so we do not criticise her for that, nor do we consider this a “dropped shift” which Mr Owusu-Ansah described as being without reason. In addition, we do not consider this evidence of the claimant wanting to reduce her shifts as the respondent has alleged: this was a one off incident.

[101]On 19 January 2023 (erroneously referred to as 17 January 2023 by the claimant in her evidence) the claimant attended an appointment in the Diabetes Antenatal Clinic and was not paid for this, although it was a Thursday and therefore a non working day. It was at this point that she became aware she had gestational diabetes. For the avoidance of doubt, whilst she was not paid for this, this was not listed as a specific incident on which the claimant relies in the List of Issues.

[102]The claimant informed the respondent by email on 19 January 2023 that she had to monitor her blood sugar levels four times a day and attached a diabetes book by way of evidence (page 147). Within this email she asked for the first two calls of the morning to be removed from her because she was no longer able to skip breakfast due to her blood sugar levels. The claimant says that the difficulty she had with the particular calls referenced was that they were an early start and she wanted to be given other calls at more appropriate times of day for her instead. In her email on 30 January 2023 the claimant had not asked for alternative work but she said in evidence that she would have done so verbally. However, we do not find on balance of probabilities at this stage that she requested alternative work for these two specific calls. Therefore to the extent that calls were removed from her because of the breakfast issue, this was at the claimant’s specific request.

[103]On 30 January 2023 the claimant attended an antenatal appointment with her midwife which she had informed the respondent about one week earlier (page 147), for which she was not paid. The respondent’s internal policy (page 643) says that employees are entitled to paid time off for antenatal care, but the claimant says that the finance department told her that this did not apply to her (as she was not an employee), however she also says that others told her that it did. Again, this was not listed as a specific incident on which the claimant relies in the List of Issues.

[104]At this appointment she was told that she had a vitamin D deficiency. She felt very tired and not herself that day and called in sick for the rest of her shift (page 229). In her message when she reported her sickness she said she would be back to normal the following day and would pick up some extras where she could. Whilst Mr Owusu-Ansah has referred to this as another “dropped shift”, it was in reality an ante-natal appointment followed by pregnancy related sickness absence.

[105]Miss Kouser emailed the claimant that afternoon saying that she understood the claimant was unable to do her calls that day (page 148). She said that the following day the respondent could remove her morning and lunch calls as she and Rajesh would be out on the calls, but said that the health assessment was required the following afternoon. This shows that from time to time Miss Kouser (as a member of management) would do certain calls.

[106]This is an unusual state of affairs, as the claimant has said that she would be fit to work the following day but the respondent has nevertheless taken her shift away from her. In addition, the health assessment is being scheduled for the afternoon, but that would be a Tuesday and therefore the claimant would not be working in the afternoon as it was her half day. We understand that an organisation might need a back up plan in case an employee’s ill health continued in order to ensure that client needs were met, but it appears premature to actually remove the claimant from the rota entirely and also the claimant would not be paid if not attending work. It is equally strange that despite assuming the claimant would be too ill to work in the morning, there is equally an assumption that she will be well enough to carry out a health assessment of some sort the same afternoon.

[107]The claimant replied on the same day saying “Hi okay no worries. Won’t be able to get in tomorrow as I’m not working I’ll have my little girl with me. Can these questions not be asked over the phone? The office isn’t exactly local to me and I have a tonne of other appointments I have to go to, can’t keep up with everything”. This was a reasonable request given that the Tuesday afternoon was not part of her working time.

[108]By saying “Hi okay no worries” we find that the claimant was accepting the respondent’s position that they would cover the shift the following morning and therefore we find that the claimant voluntarily agreed to it.

[109]The following day, on 31 January 2023, the claimant received a text message asking if she was still working on 1 February 2023. She was and in the end she worked the morning as normal, doing the health declaration in the afternoon. February 2023

[110]In February 2022 Mrs Jamieson left the respondent and a large proportion of her shifts were reallocated to Mr Khan.

[111]On 3 February 2023 the claimant asked to change her shift times (page 149). She asked to start around 9.30am after the school run and then work right through until the evening, and also offered to work Thursdays as an extra shift – so a later start but an additional day each week. She also requested to work a full day on Saturday (which she could start earlier) and not to work Sundays. In this email she does not complain about her hours being reduced, although in evidence she said that her expectations had been reduced and that although she had done 11-12 hours some days towards the end of 2022 she was ok with 9 hours per day which is what she was given in January 2023. She says she was not ok with the further drops in hours that happened after that. In reality however we note that she had complained about the drop in hours before and during January and we consider that she was not in agreement or accepting of with the removal of RS from her rota.

[112]She says that her request was not answered initially and then after she chased a number of times her request was refused on the basis that her request would split the shift up. The respondent wanted one person to do the whole run because if only part of a run needing filling it was hard for them to find someone to agree to pick up only part of that run. We can understand that this would be an issue. Management did pick up some calls from time to time (as Miss Kouser did on 31 January 2023) but we find that there would be genuine operational issues in doing so on a longer term basis.

[113]On 6 February 2023 the claimant was advised by message that a particular client (“Josephine”) had been removed from her rota. No reason was given for this (page 251) nor has any specific allegation been made about this.

[114]On 7 February 2023 the claimant emailed Mr Ahmed again (page 151) about her hours. In this email she said that she would keep her hours the same and would have to sort something out. From this we assume that her request had been refused by this stage. She again makes no complaint about her hours. Within her email she also refers to appointments on Monday 27 February 2023 and 24 April 2023 so could only work half days on those days. These were pregnancy related antenatal appointments.

[115]On 9 February 2023 the claimant attended a client (who we will refer to as KR) and was informed by the client’s family that the respondent had contacted them saying that the claimant had made a complaint about the call and that she had said due to pregnancy she was no longer able to do it. The claimant denies having said this. The claimant did comment in her witness statement that Miss Kouser had said that this call was hurting her own (and another colleague’s backs) and therefore we consider that it is possible that this was the respondent genuinely identifying this client as a high risk call for the claimant (which is supported by the fact that on 14 March 2023 the claimant referenced it herself – see below).

[116]On the same day the claimant texted the office saying that she had noticed that the calls she had are really spread out and asked what had happened to the “Bartley Green” calls. We assume from this that further calls had been removed from her rota but we have no information as to why or who it was (page 226).

[117]On 13 February 2023 the claimant emailed Miss Kouser about her annual leave (page 152), and reminding Miss Kouser about her upcoming scan on 27 February 2023. She did not raise any allegations of discrimination and her only complaint is that her request for annual leave had not been responded to. This is asserted by the claimant to be her second protected act.

[118]On 23 February 2023 the claimant emailed Mr Ahmed and Miss Kouser (page 154), saying that she had checked her rota for the Saturday and her hours were “really bad” and she needed more hours to make the shift worth her while using her car. She asked if there was any more news on giving her a Great Barr run (which would be in the Sutton area) and said this would be the best option for her, noting that she had gone from 11hours to 9 hours and now to under 7 hours. It is clear the claimant felt that her hours were being significantly reduced by the respondent. She did comment that she understood that it was the nature of the business but said that when she is off other carers doing the same round seem to have more hours added. She is therefore clearly perceiving a difference in treatment between herself and her colleagues.

[119]Miss Kouser replied the same day asking the claimant if she could work in the Sutton area the following day (page 154). The claimant said she was unable to do that due to her partner being in London (the following day was ordinarily a non working day for her) but said that she could do it over the weekend. In her witness statement Miss Kouser referred to this as the claimant refusing a shift: in circumstances where the claimant had always made clear that she was unavailable to work on Fridays, that does not constitute a refusal.

[120]The claimant then emailed again a short time later noting that in fact the postcode she was being offered was in fact a further travel distance than she was currently doing and she asked if there was anything closer. Miss Kouser replied that due to the claimant’s start time it was hard to give her any more calls The claimant responded (page 154) saying that the start of the shift was not what concerned her, but the gaps in between clients. It was agreed that she would phone Mr Ahmed to discuss her rota concerns. We note that the claimant is not objecting to not being given (or paid for) calls at the start of the day, but rather her concern is about the gaps during the middle of the day where other calls were in her view missing.

[121]On 24 February 2023 the claimant emailed the finance department about her antenatal appointments, asking if they were paid. She chased again on 6 March 2023 as she had had no response, and on 7 March 2023 she was told that the query was being passed onto a manager. On 9 March 2023 she was told that she would not be paid for them, and on 24 March 2023 she was told that the policies which referred to paid time off were for full time staff / office staff. We were not referred to copies of these emails.

[122]On 27 February 2023 the claimant attended her scan. This was an antenatal appointment which was unpaid. Removal of SM calls

[123]The respondent removed one client, SM, from the claimant’s shifts during the course of February and March 2023. Miss Kouser said in her oral evidence that this was because the timings of the calls did not really fit with the rota. The claimant says that the client’s mother had in fact reported that the claimant had been removed because she was pregnant. When that was put to Miss Kouser, she said that that was a conversation between Mr Ahmed and the claimant and she could not comment on that.

[124]Mrs Moore, the client’s mother, provided a witness statement and attended the Tribunal to give evidence, although the respondent had no questions for her and did not challenge what was in that statement. In her statement she said that during the spring of 2023 the respondent decided that the claimant should no longer attend her daughter’s calls. She referred to a discussion about this in February 2023 but to the final call which the claimant had with her daughter being on 12 March 2023.

[125]Mrs Moore said that she was unhappy that the claimant was being removed from her calls and contacted Mr Ahmed to ask that the claimant continue with them (and also reported that the claimant had told her she was happy to continue with them). She said that Mr Ahmed informed Mrs Moore that standing at the sink, washing up and preparing vegetables was not good for a pregnant woman so he could not allow her to continue with those appointments. We note that this is separate to the comment made by the claimant when she was ill in December 2022 for a non-pregnancy related reason and could not stand chopping vegetables. We were provided with a recording of a call from Mrs Jamieson to the claimant reporting on the conversation that Mrs Moore had had with Mr Ahmed (titled “Voicenote from Rachel regarding a call”) saying that Mrs Moore had been told that the claimant could not stand up for an hour.

[126]We do not have any evidence from Mr Ahmed about this. What we do have is the unchallenged evidence from the client’s mother, supported largely by Mrs Jamieson. This contradicts the evidence of Miss Kouser however she herself accepted that she did not know what Mr Ahmed had said and we have commented earlier on the reliability of her evidence in any case. We find on the balance of probabilities that the claimant was taken off the call not because of the shift rota difficulties but because Mr Ahmed said that she should not be standing at the sink for an hour whilst pregnant. Whilst Mrs Jamieson may have had issues with the respondent Mrs Moore did not as far as we are aware and therefore we have no reason to doubt her evidence (which the respondent did not challenge). The potential transfer to Sutton and removal of shifts in Edgbaston

[127]On 13 March 2023 the claimant contacted Ms Kelleher, Miss Kausar and Mr Ahmed about a call for a KR (page 155). The claimant was struggling with this particular client due to back pain and she said that she was feeling the baby move less and could not continue with the call or she might harm her baby. She clarified that she was able to do all other calls and asked that her hours could be made up with sit in calls or calls for SM as they are light.

[128]In an email the following day she explained that she had been to hospital (page 156, evidence at page 610) and had been told that she had damaged her back due to her muscles softening in pregnancy and that she had been advised not to do heavy lifting / pulling (page 156). She said that she was able to work the next day if the proper adjustments could be made and that the only real issue was that one particular client (KR). The claimant asserts that this was a protected act. She did not allege any discrimination. The claimant says that she received no response to this email, and we were not pointed to one in the file so on the balance of probabilities we accept that no response was sent, however the respondent did invite the claimant in for a risk assessment update separately (see below) and so we do not consider this to be a failure to respond entirely.

[129]Separately on 13 March 2023 the claimant texted the office to ask why her calls kept being taken off the rota, whereas “Raj” worked the same shift but always got more hours (page 244).

[130]On 14 March 2023 Mr McDonald telephoned the respondent to say that she would not coming in that day due to her back and reduced foetal movements but that she would be back the following day. The office texted the claimant that afternoon saying that they had covered her shift the following day. Again therefore the claimant was having shifts removed from her for days when she said she would be fit for work.

[131]On this occasion the claimant did not agree to that, but instead replied saying that she would work on 15 March 2023 but needed the rota to be adjusted due to her back issue. In response she was asked to attend the Sutton branch instead for a risk assessment update (page 244). We consider that it was reasonable to update any risk assessment at that point, but not reasonable to not allow the claimant to work (or be paid) in the meantime.

[132]On 15 March 2023 the claimant had an updated risk assessment (page 587): the claimant was not paid for it despite this being clearly part of her working day. The claimant acknowledges that this was more in depth than the first risk assessment. The claimant was asked if she now wanted to transfer to the Sutton branch, but at this stage she said she did not as there was not long to wait until her maternity leave, and all that she needed was not to be assigned KR’s calls. We find that the primary reason why the claimant did not want to move to Sutton at this stage was one of convenience: i.e. she found it easier to stay where she was until her maternity leave started. We also consider that there was a genuine operational difficulty for the respondent in removing only those calls which the claimant could not carry out without impacting the “run” as a whole. What the respondent should have done is risk assessed each client to determine which she could and could not do, and then take steps to seek to identify alternative work for those which she could not do. Moving the claimant to the Sutton branch could be one way of achieving that.

[133]The claimant says that she was being pressured to move to Sutton, with the respondent now saying it had enough work for her to do there. She said that she was told that Great Barr (in Sutton branch) was primarily doubles with very few singles (the respondent says it was a mixture) and she was being told to leave the other carer to do the heavy lifting part. We note that doubles did not automatically mean heavy lifting and therefore it could not assumed that a run with doubles would not be suitable for her.

[134]After the meeting, the claimant emailed Miss Kouser to say that she did not want to move (page 157). In this email she said “Hi Sahima have just thought as I only have a couple of months left wouldn’t it just be easier to stay where I am?.....Plus I don’t know Great Barr at all…” She did not reference any issues as to doubles in this email. We consider that the primary basis for the claimant’s refusal was personal preference because she was approaching her maternity leave and did not want to have to start a new relationship with clients in that short window, and also that she considered the travel time could be longer. In evidence she relies on the doubles issue, but we do not consider this to have been a significant issue to her on 15 March 2023 when it was raised with her. The claimant should have done more to investigate the precise nature of the doubles in question before refusing to move to Sutton.

[135]We saw screenshots showing that all of the claimant’s calls were taken off her on 17 March 2023 (653, 654, 663 and 664). The respondent says that this was because the claimant was going to move to Great Barr so was removed from the original Edgbaston rota, however by 17 March the respondent knew that the claimant did not want to go to Sutton and planned to speak to the Edgbaston branch about whether they had work for her there. It appears in effect that after she declined Great Barr she was not added back into the Edgbaston rota.

[136]The claimant emailed Miss Kouser asking for her to confirm that Mr Ahmed knew that she wanted to stay in Edgbaston given that she had been removed from the rota (page 158) and Miss Kouser told her to speak to Mr Ahmed. She tried to phone the office but could not get hold of him. He then called her back and left a voicemail, saying that she could call back in the following 10 minutes (page 243). They were not able to speak that day.

[137]On 20 March 2023 the claimant called again and spoke to Mr Ahmed. We were presented with a recording and a transcript of what was said by the claimant, although it was impossible to hear what Mr Ahmed said. The respondent accepted that the transcript was an accurate reflection of what the claimant said and therefore we rely on it only insofar as it records what the claimant said. From what we can understand of the conversation, we find on the balance of probabilities that the claimant was informed that there was no more work for her at Edgbaston (she was not told that there was no more work for her at all). We consider that by this time Mr Ahmed has decided that it is not possible for the claimant to continue in Edgbaston and therefore that she needs to work from Sutton branch or not at all. The claimant’s further absence

[138]On 24 March 2023 the claimant visited her GP who signed her off sick due to back pain. This sickness continued until her maternity leave commenced. Whilst the claimant has suggested that she would have been fit to work with adjustments, this is not what was recorded by the doctor and therefore we find on balance of probabilities that she was unfit for work regardless (pages 574 to 577). The claimant was therefore on sickness absence from this point.

[139]Between 22 March 2023 and 3 April 2023 the claimant had further email exchanges with Miss Kouser (page 159 to 161) (again asserted to be protected acts). The essence of these messages is the claimant reporting to Miss Kouser that Mr Ahmed had told her there was no work for her in Edgbaston, and the claimant stating that she did not want to transfer branch at this stage of her pregnancy and also due to the calls being mostly doubles in Sutton. She repeated that she only had an issue with one double call that she had been doing and that the other calls she had in Edgbaston were fine, and she did not understand why she could not have RS’s sit. She said that she felt there was no need for the rapid decrease in hours she had and that she wanted an answer to all of it.

[140]The essence of the response from Miss Kouser was that the particular call that the claimant could not do (KR) was part of the run and that other staff would not be willing to pick up just that one call. In essence the claimant needed to do the full run or not at all. We can understand that there were genuine operational difficulties in re-assigning KR’s call without reallocating other elements of the run. It was for this reason that the respondent had offered the claimant the opportunity to move to the Sutton branch.

[141]Miss Kouser also said that it would be unfair to take the RS call away from Mr Khan as he had been doing it regularly. The claimant pointed out however in her reply, that is exactly what had been done to her. The claimant also raised concerns that she understood Great Barr to be all doubles as the lady who did the risk assessment had told her to stick to one side to do less lifting. She said that Edgbaston suited her diabetes due to the later start time and earlier finish time. Miss Kouser insisted in her reply that there were quite a few single calls in Great Barr.

[142]In an email on 3 April 2023 (page 160) Miss Kouser commented that the claimant had been offered a trial at Sutton: the claimant denies this. Given the clear reference to it and the fact that the claimant did not correct Miss Kouser at the time, we find that she was offered a trial. Miss Kouser ended by informing the claimant to speak with Mr Ahmed if she wanted to be back on the rota. She replied to say that she would do so but referenced that he ignores emails from her. We were not provided with any evidence of any further oral discussions between them about the matter.

[143]On 12 April 2023 the claimant emailed Mr Ahmed (page 161), complaining about the impact of the rota changes on her maternity pay and income and saying that carers had been got rid of recently, and that it was unfair for her hours to have been cut for no reason. This is again asserted to be a protected act. She asked him to answer her email. Mr Ahmed replied the following day offering her shifts at the Sutton office on single calls, subject to an updated risk assessment because she had referred to being exhausted due to vitamin D deficiency. The claimant replied on 19 April 2023 confirming that this was not an option for her (page 161). Mr Ahmed replied noting that the claimant had refused the Sutton shifts which the respondent felt were the best shifts for her.

[144]Mr Ahmed responded again on 27 April 2023 (page 161) stating that the claimant had been offered shifts that were “best suited to your safety and your baby’s safety taking into account your health conditions. These shifts were looked at and deemed the best option for you, considering your pregnancy risk assessment, ensuring adequate breaks and suitable start times for your diabetes. We have offered you a few options to ensure you do not lose out on earnings, bearing in mind you are on a zero-hours contract. We can only offer you what is available. You have chosen to refuse these….”

[145]The claimant replied on 4 May (page 162). The content of this email sets out the essence of the claimant’s complaint to this Tribunal and is asserted to amount to a protected act and so is worth repeating in full: “Hi Aftab I'm not sure how they're best suited to me when I've been told numerous times they're double calls. All of my other calls in Edgbaston was singles and light duty, so they would have been more "suited" to me and baby's safety. Also if we're going down the route of safety, I should never have done kishwar's call in the first place and should have been either transferred or put on lighter duties in the very beginning? Options? Which options are you actually referring to? I don't recall being given any options over anything! Nobody asked how I felt and what I wanted to do. All decisions were made on my behalf and assumptions were made about my abilities. I am quite capable of doing the same amount as anybody else, unless it's putting me and baby at risk. Which is why I was advised against using a manual hoist and pushing a wheelchair. However when it came to Sarah's call you told her mum that I wasn't able to to do the call in my condition as it would be to much. Was I asked about this? No. Was my feelings taken into consideration? No and I certainly wasn't given options! Even in terms of the transfer I wasn't given any option? Nobody contacted me to put things into motion, my calls were just taken from my rota and I felt like I was ignored and then excuses made. I believe that this has nothing to do with being zero hours I have pregnancy rights and I don't feel they have been adhered to. I have a text from whoever was on call stating that I could have Robbie's sit regularly, and then as soon as you came back I didn't even get an option. You told me it was going to walkers but in actual fact it was given to Nawaz your friend who is a driver. When I was off, Rajpreet did my calls and she always had more hours (which included Sarah's call) but for some strange reason excuses were made to Lesley why I couldn't go? Also worth mentioning Rajpreet is friends with Nawaz! So there isn't really any excuse as to why my hours were even cut in the first place. I have never refused to do shifts, particularly as it would have been in my qualifying period for my maternity? How would that benefit me in any way. I did however refuse to come out for the hours I was being given and wanted more added which I believe was only fair, especially when other people was getting the hours and mine was taken off my rota on the day of my shift, it just seemed to be me that was suffering. The fact that I went from 11 hours - 6 ½ hours is just madness, I don't see how anybody could justify the drop in hours. Especially when somebody who was wrongly suspended came back and just picked up her shifts, which was then taken off my rota? I was never once told that I was being started later for my own benefit it was me that asked you, actually when I mentioned my diabetes and starting late it was more of an issue than anything. You told me from the get go it's hard to get that part of the shift covered. Also the amount of times I was called into the office at short notice in my break, and told to eat my lunch in the office? Even though I only had limited time before my shift started again. Then getting moaned at for texting and not phoning, when I barely had enough time to eat anyway. Also being forced to put on shoe covers at kishwar's when I couldn't bend and it was hurting my back, kishwar's daughter had no issue with me not wearing them. Her daughter also pointed out it was a hazard for me going down the stairs with these on, I recall her actually mentioning this to the social working. How is that having my needs met and benefitting me at all? Lastly as mentioned moving to Sutton wasn't an option for me, being so close to leaving for maternity I just didn't see the point. Also as my pregnancy related health is getting worse and being further along the less stress the better. I feel like getting used to another area / clients wouldn't help at all. Fair enough it's potentially closer to home, but great barr is a really busy area that would just cause a great deal of stress. I believe it's my right to have another suitable alternative as I've refused this, but nobody has tried to resolve the situation. As usual you have just made a decision for me and there's no negotiating. This whole thing hasn’t been dealt with very well and had caused me a great deal of stress. I wouldn’t wish anybody else to go through this, as I feel as though I’ve been treated unfairly through no fault of my own. I have done all I can and more as I shouldn’t have had to chase this up constantly, feels as though nobody has listened or taken me seriously. As I have only under a month left, time has been wasted massively and I have no fight left in me. We are never going to agree on the matter.”

[146]In the absence of a response in the bundle or evidence from the respondent to show that they responded to this email, we accept the claimant’s assertion that the respondent did not. We find that the respondent should have responded, and note that the contents of the email would amount to a grievance in an employment relationship. This is the end of the correspondence between the parties about the claimant’s shifts. Issues relating to pay

[147]The claimant’s payslip for April 2023 (page 10 of the respondent’s supplementary documentation bundle of 21 pages) shows that she received statutory sick pay of £184.86 for the entire month. This appears to be significantly lower than normal statutory sick pay. In May 2023 she received no statutory sick pay (or other pay) at all (page 11 of the respondent’s supplementary documentation bundle of 21 pages).

[148]Separately, between February and June 2023 the claimant had a series of email exchanges with the finance department about her maternity pay. In these she asked whether antenatal appointments were paid, and also (in an email on 12 April 2023) enquired whether she was classed as an employee of the respondent. We do not have copies of these emails, however on the balance of probabilities and in the absence of being provided with a response from the respondent, we find that there was none.

[149]Within this series of emails, on 2 June 2023 the claimant explained that she wanted to take her accrued annual leave before her maternity leave commenced. On 7 June 2023 the finance department replied, saying that the claimant could not take sick leave and holiday at the same time. The claimant however had not wished to do so: she wanted to swap from sick leave onto holiday so that she would receive full pay for that period. She reclarified this to finance and asked for them to investigate the position for her. She did receive confirmation that she could take her annual leave before maternity leave, however she did not receive a reply to her follow up email asking how this would work. She was later told (on 26 June 2023) that it had been added to her June pay. By this time her maternity leave had already commenced. When her payslip was sent to her for that month, it stated “statutory pay” but was not clear whether that was sick pay or maternity pay: she requested a breakdown but the finance department was not able to do so. The claimant’s understanding is that in fact, rather than taking annual leave for one week from 1 June (once her fit note had expired on 31 May 2023 – page 577) and then her maternity leave commencing on 8 June 2023, what happened was that her annual leave was put in place of her earlier sick pay.

[150]The email exchanges about pay continued into 2024 without ever being resolved. The claimant was candid in her evidence in that she accepted that she herself was not clear from the payslip what had happened (i.e .whether in reality she had definitely been underpaid or not). Within the supplemental documentation provided by the respondent we were provided with some payslips, notably the payslips for June and July 2023 being at pages 12 and 13 of that 21 page additional documentation bundle. The June payslip records a mixture of “holiday pay” and “statutory pay” and the July payslip records only “statutory pay”. The payslip for May 2023 appears at page 11 of that supplementary set of documents and shows no pay whatsoever.

[151]The period of annual leave according to the claimant should have been from 1 to 7 June 2023. If she had been on annual leave in place of sick pay as the claimant suggests, that would be in May because her sickness absence ended on 31 May. However each month’s payslips relate to the period from the 23rd of the previous month until the 22nd of that month (see for example page 551). Therefore, in either scenario (i.e. whether the annual leave was from the last week of May 2023 or the first week of June 2023) the holiday would be recorded on the June payslip. The claimant has not therefore shown on balance of probabilities that the holiday was recorded against the wrong timeframe.

[152]For completeness we note that we were also provided with a breakdown of each day of the claimant’s employment and which clients she visited on those days, and for how long (pages 545 to 573) along with a document prepared by the respondent showing a breakdown in hours (page 754). In respect of the latter we note it refers to “dropped shifts” for example which we have found not to be the case and we consider it more generally to be overly simplistic.

[153]The claimant gave birth on 3 July 2023 and presented her claim form on 16 August 2023. She had commenced ACAS early conciliation on 9 June 2023, and early conciliation had ended on 17 July 2023. The reason why the claimant did not submit her claim at an earlier date was because she considered the matter to be ongoing throughout the period. She did see a solicitor through Maternity Action in around March 2023 and that individual advised her to try to sort matters out outside of Tribunal proceedings, and when that did not work she submitted her claim. Law Employment Status

[154]Section 231(1) of the Employment Rights Act 1996 provides:(1) In this Act, “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act, “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

[155]Where employment status is in dispute, the burden of proof rests on the individual asserting that they are an employee (Secretary of State v Neufeld and Howe

[2009] EWCA Civ 280

[156]A contract of employment can be written or oral, and can be express or implied. There is no statutory definition of a contract of service. In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497

, McKenna J held that there were three key conditions for a contract of service, as follows: “A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service…”

[157]When assessing employment status, the reality of the agreement between the parties must be considered, which may not necessarily be the label that the parties have set out in any written agreement (Autoclenz Ltd v Belcher and ors

2011 ICR 1157

, SC).

[158]No one single factor will be decisive and all aspects of the relationship should be considered, however the irreducible minimum that should be present in all contracts of employment are:a. Mutuality of obligation

b. Control by the employer

c. Personal performance

[159]Mutuality of obligation is also referred to as the “wage-work bargain” (see for example Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd

[2024] UKSC 29

). There must be an obligation on one party to provide work and on the other to accept work (Nethermere (St Neots) Ltd v Gardiner and anor

1984 ICR 612

, CA and Carmichael and anor v National Power plc

1999 ICR 1226

, HL).

[160]In relation to the extent of the employer’s control over the employee, this does not necessarily mean that an employee cannot have day to day control over their own work. It is a broader question about the right of control (White and another v Troutbeck SA

[2013] UKEAT 0177/12

). All of the circumstances should be taken into account, and the degree of integration into the business may also be relevant.

[161]The employee must be obliged to perform the work personally. In Ready Mixed Concrete (above) it was noted by Mackenna J that “Freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service, although a limited or occasional power of delegation may not be”.

[162]Zero hours contracts do not guarantee specific or minimum hours of work. In some cases they will amount to contracts of employment, in others they will not: it depends on the precise terms of the arrangement (for example whether the individual is required to accept any work that is offered to them). Automatic Unfair Dismissal

[163]Section 99 of the Employment Rights Act 1996 (“ERA”) provides that:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if – a) the reason or principal reason for the dismissal is of a prescribed kind, or b) the dismissal takes place in prescribed circumstances.

(2) In this section “prescribed” means prescribed by regulations made by the Secretary of State.

(3) A reason or set of circumstances prescribed under this section must relate to – a) Pregnancy, childbirth or maternity b) ….

[164]Section 95 of the ERA addresses the circumstances in which an employee is dismissed and provides as follows: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if – a) the contract under which he is employed is terminated by the employer (whether with or without notice), b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[165]If the words used by the employer are ambiguous, the Tribunal should consider all of the surrounding circumstances, the nature of the workplace and how a reasonable employer or employee would have understood the words in light of those circumstances. This is an objective test.

[166]A unilateral imposition of new terms and conditions can, in certain circumstances, amount to a dismissal (Hogg v Dover College

1990 ICR39

, EAT). Detriment: Leave for Family and Domestic Reasons

[167]Section 47C of the ERA provides that:(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.

(2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to – a) pregnancy, childbirth or maternity b) …. Pregnancy is a prescribed reason under Regulation 19 Maternity and Parental Leave etc. Regulations 1999.

[168]Section 48 of the ERA provides that:(1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section ……47C(1)…..

(2) On a complaint under subsection (1)….it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[169]Detriment is not defined in the statutes. Caselaw regarding protected disclosure detriments is also relevant to detriments under section 47C of the ERA. The term is to be given a wide interpretation and should be assessed from the worker’s perspective (Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL), considering whether a reasonable employee might consider it to amount to a detriment. In broad terms, it means putting a worker to a disadvantage (Ministry of Defence v Jeremiah

1980 ICR13

[170]The detriment must be caused by an act, or failure to act, on the part of the employer. However, the detriment need not be deliberate, save that in the case of a failure to act, a deliberate decision must be taken not to do it (Blackbay Ventures Ltd (t/a Chemistree) v Gahir

UKEAT/0449/12

[171]The employer’s act (or failure to act) must be done for the prescribed reason of pregnancy: i.e. there must be a causal connection between the pregnancy and the act (or failure to act). The question to be asked is what the reason was for the act or omission (not what the reason was for the detriment). It is not relevant whether the employer intended to subject the individual to a detriment.

[172]It is for the employer to show the ground on which any act, or deliberate failure to act, was done (section 48(2) ERA). However, it was held in Ibekwe v Sussex Partnership NHS Foundation Trust EAT 0072/14 that if the Tribunal can find no evidence to indicate the ground on which something was done, the claimant does not necessarily succeed by default. Pregnancy and Maternity Discrimination

[173]Section 18 of the Equality Act 2010 provides that:(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.

(2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably – a) because of the pregnancy, or b) because of illness suffered by her as a result of it.

(3) ……

[174]Unlike other protected characteristics, it is not necessary for the claimant to rely on a comparator: the test is not less favourable treatment, but unfavourable treatment. “Unfavourable” is broadly analogous to “detriment” (Williams v Trustees of Swansea University Pension and Assurance Scheme

[2018] UKSC 65

[175]When considering whether the treatment was “because” of the pregnancy or pregnancy-related illness, the correct approach is the same as for direct discrimination under section 13 of the Equality Act 2010 (Interserve FM Ltd v Tuleikyte

[2017] IRLR 615

[176]The mental processes of the alleged discriminator will be relevant, although these can be conscious or subconscious (Interserve, above). The fact that the pregnancy, pregnancy-related illness or maternity leave provides the context to the conduct in question is not sufficient; the unfavourable treatment must have been materially influenced by it (consciously or subconsciously). Victimisation

[177]Section 27 of the Equality Act provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – a) B does a protected act, or b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act: a) Bringing proceedings under this Act; b) Giving evidence or information in connection with proceedings under this Act; c) Doing any other thing for the purposes of or in connection with this Act; and d) Making an allegation (whether or not express) that A or another person has contravened this Act.

[178]It is not necessary for an alleged breach of the Equality Act 2010 to be expressly set out for it to constitute a protected act, however the facts alleged must be capable of amounting to a breach of the Equality Act 2010. A reference to general unfavourable treatment will not suffice (Duffani v London Borough of Ealing

UKEAT/0454/2012

)

[179]The detriment will not be due to a protected act if the person who put the individual to the detriment did not know about the protected act (Essex County Council v Jarrett EAT 0045/15, and Deer v Walford and anor EAT 0283/10 where awareness of “some sort of legal case” was insufficient to establish knowledge).

[180]For victimisation to occur, the detriment must be because of the protected act. It does not need to be solely because of the protected act to amount to victimisation, but it does need to have a significant influence (Nagarajan v London Regional Transport

1999 ICR 877

, HL). This means an influence which is “more than trivial” (Igen Ltd v Wong, above).

[181]The motivation does not need to be conscious (Nagarajan, above). It is possible for a dismissal or detriment to be in response to a protected act but nevertheless not amount to victimisation if the reason for the treatment is not the complaint itself but a separable feature of it such as the way in which the complaint was made (Martin v Devonshires Solicitors

[2011] ICR 352

[182]The focus should be on the motivation of the person who submitted the individual to the detriment. If a third party provided “tainted information” to influence the decision maker, that would need to be raised as a separate allegation, otherwise an innocent party could find themselves liable for an act for which they were personally innocent (Reynolds v CLFIS (UK) Ltd and ors

2015 ICR 1010

, CA). Burden of proof

[183]Section 136 of the Equality Act (burden of proof) states that:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[184]Put simply, the claimant must show facts from which the Tribunal could infer that discrimination took place, in the absence of other explanation. If the claimant cannot do that, the claim fails. If the claimant does show such facts, then the burden shifts to the respondent to show that discrimination did not take place (Igen v Wong, above, Royal Mail Group v Efobi

[2021] UKSC 33

). In deciding whether the burden has shifted, the Tribunal should consider all of the factual evidence provided by both parties (although not the explanation for those facts).

[185]In Madarrassy v Nomura International

[2007] ICR 867

CA, Mummery LJ stated that “the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

[186]Something more than a finding of less favourable treatment is required in order to shift the burden of proof to the respondent, however the “something” need not be considerable (Deman v Commission for Equality and Human Rights and others

[2010] EWCA Civ 1276

). Unreasonable behaviour alone is not evidence of discrimination (Bahl v The Law Society

[2004] IRLR 799

) but can be relevant to considering what inferences can be drawn (Anya v University of Oxford & anor

[2001] ICR 847

)

[187]Where the burden has shifted to the respondent, it is then for the respondent to prove on the balance of probabilities that the less favourable treatment was not because of the protected characteristic.

[188]Although the burden of proof is a two stage test, there are cases where an Employment Tribunal can legitimately proceed directly to the second stage of the test (see, for example, Laing v Manchester City Council and anor

2006 ICR 1519

, EAT). Unauthorised deductions from wages

[189]Section 13 of the Employment Rights Act 1996 (“ERA”) provides that:(1) An employer shall not make a deduction from wages of a worker employed by him unless – a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the workers contract, or b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) …

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) …

[190]Section 27(1) of the ERA provides that: (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including – a) ….. b) statutory sick pay…. c) …..

[191]The Tribunal must be satisfied first that the claimant was entitled to the wages sought (Johnston v Veritas Technologies (UK) [2023] 2 WLUK 410) and that sums remain outstanding and owed to them.

[192]Pregnant employees have a statutory right to paid time off to attend antenatal appointments under section 55 and 56 of the ERA. Time Limits Detriment

[193]Section 48 of the ERA provides: (3) An employment tribunal shall not consider a complaint under this section unless it is presented – a) before the end of the period 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, or b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3) – a) where an act extends over a period, the “date of the act” means the last day of that period, and b) a deliberate failure to act shall be treated as done when it was decided on…..

[194]The Tribunal should identify the act or failure to act that is alleged to have caused the detriment when considering whether it extended over a period of time (Flynn v Warrior Square Recoveries Ltd

2014 EWCA Civ 68

, CA). It is not about whether the detriment or consequences continued, but the act or failure to act.

[195]A series of similar acts could relate to different acts by different people if there is a sufficient connection between them for them to amount to a series (Arthur v London Eastern Railway Ltd (t/a One Stansted Express

2007 ICR 193

, CA). However, where the last alleged act is either unfounded or found not to have been done on the ground of the protected disclosure, it cannot extend time for earlier acts that are out of time (Jhuti, above).

[196]If it is not reasonably practicable to have presented the claim within the ordinary time limits, the question is then whether it was presented within such further period as the Tribunal considers reasonable. This involves an objective consideration of the reason for the delay and what period is reasonable, bearing in mind the public interest in claims being made promptly and having regard to all the circumstances (Cullinane v Balfour Beatty Engineering Services Ltd and anor EAT 0537/10, and Nolan v Balfour Beatty Engineering Services EAT 0109/11). Discrimination

[197]Section 123 of the Equality Act (time limits) provides that:(1) “….proceedings on a complaint within section 120 may not be brought after the end of - a) The period of 3 months starting with the date of the act to which the complaint relates, or b) Such other period as the employment tribunal thinks just and equitable.

(2) ….

(3) For the purposes of this section – a) Conduct extending over a period is to be treated as done at the end of the period; b) Failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the, a person (P) is to be taken to decide on failure to do something – a) When P does an act inconsistent with doing it, or b) If P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[198]There is a distinction between a continuing act and an act with continuing consequences. Where there is a continuing policy, rule, scheme, regime or practice, that will amount to conduct extending over a period, however where there is a one off act which has consequences over a period of time, that will not (Barclays Bank plc v Kapur

[1991] 2 AC 355

, HL and Sougrin v Haringey HA

[1992] ICR 650

, CA). One relevant but not conclusive factor is whether the same or different individuals were involved (Aziz v FDA

[2010] EWCA Civ 304

)

[199]However, the Tribunal should not focus too heavily on whether there is a policy, rule, scheme, regime or practice. The Tribunal should ask itself whether there was an act extending over a period, rather than a series of unconnected or isolated individual acts (Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, CA). It is relevant whether the same or different individuals were involved, and a break of several months may mean that continuity is not preserved (Aziz, above). Unproven allegations cannot be part of the continuing act (South Western Ambulance Service NHS Foundation Trust v King

2020 IRLR 168

, EAT).

[200]Whilst it is a broader test that that for unfair dismissal, exercising discretion to extend time is the exception rather than the rule (Robertson v Bexley Community Centre

[2003] EWCA Civ 576

). When considering whether to extend time, the Tribunal should consider all the circumstances (Robertson, above), including the balance of prejudice and the delay and reasons for it. Although British Coal Corporation v Keeble

[1997] IRLR 336

sets out a checklist approach in line with section 33 Limitation Act 1980, it is not necessary to go through the full checklist in each case, as long as all significant factors are considered (Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

and Afolabi v Southwark London Borough Council

[2003] EWCA Civ 15

). Factors which are almost always relevant include:a. The length of and reasons for the delay; and

b. Whether the delay has prejudiced the respondent. The merits of the case can be taken into account when considering the balance of prejudice.

[201]The fact that a delay is short does not mean that an extension of time should automatically be granted. Per Underhill LJ in Adedeji (above): “Of course employment tribunals very often have to consider disputed events which occurred a long time prior to the actual act complained of, even though the passage of time will inevitably have impacted on the cogency of the evidence. But that does not make the investigation of stale issues any the less desirable in principle. As part of the exercise of its overall discretion, a tribunal can properly take into account the fact that, although the formal delay may have been short, the consequence of granting an extension may be to open up issues which arose much longer ago”.

Conclusions

[202]As we can only determine whether or not a claim has been brought within the required time limits once the date(s) of any discrimination or detriment have been identified, we set out our conclusions on time limits once the other substantive issues have been determined. Employment Status Was the Claimant an employee of the Respondent within the meaning of section 230 of the Employment Rights Act 1996?

[203]The respondent submits that the claimant was a worker under a zero-hours contract, and not an employee. However, the fact that the relationship was stated to be a “zero-hours” one is not determinative, we must consider the actual nature of the relationship between the parties.

[204]The claimant’s relationship with the respondent is governed by a document called “Contract of Employment”. That again in itself is not determinative. However, that contract contains features that would ordinarily be expected in an employment contract, such as multiple references to the claimant as an employee, a probationary period, post termination restrictions and generally it reads exactly as one would expect an employment contract to read. The fact that she is free to engage in activity for other employers does not mean that she is not an employee: a part-time employee might be equally free to do so.

[205]Whilst the contract also refers to there not being a minimum number of guaranteed hours per week, it does state that the respondent would seek to give her advance notice of the hours that she would be “required” to work. This suggests an expectation that, if the respondent offered work, she should accept it.

[206]Of course, if the arrangements in practice differed from those in the written contract then those practical arrangements should be taken into account. However, we conclude that what happened in practice did reflect what the contract said, and in fact went beyond that (i.e. further pointed to the claimant being an employee). Whilst there was no minimum hours guaranteed under the contract, it is clear that the respondent expected individuals to make themselves available during the time periods that they had communicated themselves as being available to work on a regular basis (in the claimant’s case Monday, Tuesday morning, Wednesday and certain days at weekends). There was documentary evidence in the form of emails to staff reminding them that any changes to availability would be subject to four weeks’ notice. Whilst that may offer more flexibility than a standard employment arrangement in that it appears that there was some scope to change, almost a month’s notice had to be provided and changes were only permitted twice per year. In our view this still represents mutuality of obligation: the claimant was not free to accept or reject work as and when it was offered to her. In addition, whilst the claimant’s rota was changed during the course of the relevant period, that was related to specific issues such as her health and we consider that, had those factors not been present, her rota would have remained broadly as it had been. For the avoidance of doubt, we also do not consider that the respondent’s acceptance of her refusal not to move to the Sutton branch means that there was no mutuality of obligation: what happened in relation to that was because of the specific circumstances at that time and does not mean that it was generally open to the claimant to decline particular work as and when she wished.

[207]As for control, we conclude that the respondent exercised control over the claimant. It is the respondent’s own case that it required her to undertake an appraisal (we have found that the appraisal did not happen, but the fact that the respondent considers it appropriate to hold an appraisal with the claimant is still indicative that it considers that it exercises control over her). The email trails show that the respondent would require her to come into the office to discuss certain matters from time to time, that it selected what clients she would see and when, holiday requests had to be approved by her “line manager”, and when she asked to go home early because she was ill, this was very much treated as a request and in fact she had to finish certain elements of her shift before she was permitted to do so.

[208]As for personal service, neither party has put forward any particular submissions on this point however it is clear from what we heard that the claimant was expected to attend to the shifts allocated to her on the rota personally.

[209]We would add that the respondent’s policies and procedures make clear that it is the respondent’s intention only to use “workers” or “self employed” individuals on an ad hoc basis where necessary, and that regular shift work should be carried out by employees. The claimant worked regular shifts and was assigned to regular clients, and so under the respondent’s own policies she should be viewed as an employee.

[210]Considering the relationship as a whole, we find that the claimant was clearly an employee of the respondent. There was mutuality of obligation, she worked under the respondent’s control and personal service was required. Her contract of employment, whilst not determinative, is in our view reflective of the reality of the relationship the parties had i.e. one of employment. Unfair dismissal Was the claimant dismissed?

[211]The claimant says that she was dismissed as a result of the respondent ceasing to provide her with work from 17 March 2022 and telling her she would be given no more work in a telephone conversation on 20 March 2023.

[212]However, we have found that what was actually communicated to the claimant was that she would be given no more work by the Edgbaston branch from that point in time: the option remained available for the claimant to carry out work from the Sutton branch. It was only because the claimant had refused to carry out that work that no work was given to her.

[213]This is not the same as being dismissed, which would bring the employment contract to an end in its entirety. The claimant continued to receive payslips, was on sick leave and subsequently on maternity leave, with statutory pay being paid to her by the respondent (although see below on the amount of this). Had her employment ended, there would not be any ongoing pay falling due beyond the stated date of dismissal. At no time were the words “dismissal” used (although this is not determinative) and at no point in the correspondence between the parties does the claimant assert (or the respondent state) that the claimant’s employment has ended. To the contrary the correspondence indicates that neither party thinks that it has, for example the discussions about annual leave prior to maternity leave in early June 2023.

[214]Whilst the claimant has not put forward the argument that this was a Hogg v Dover (above) situation whereby one contract (in Edgbaston) was brought to an end by way of dismissal and a new contract (in Sutton) was offered instead, given that the claimant is a litigant in person who may be unfamiliar with this case, we have nevertheless considered it.

[215]We conclude that this was not a situation where one contract was terminated and another offered. What happened in relation to the cessation of the Edgbaston shifts and the offer of shifts in Sutton was within the scope of the contract of employment. Whilst her contract stated Edgbaston, it also contained a mobility clause allowing for her place of work to be moved temporarily or permanently. In these particular circumstances, we consider that it was reasonable for the respondent to move her work to Sutton (see below conclusions on this). There is also no suggestion that this would be a permanent move if the claimant did not want it to be. We conclude that even if this amounted to a new term of employment, it would not be so substantial as to constitute a removal of the old contract and replacement with a new one.

[216]For the reasons set out above, we conclude that the claimant was not dismissed. The claimant’s claim for automatic unfair dismissal must fail. Detriment: Family and Domestic Reasons Did the Respondent do the following things: On a date between 3 and 11 December 2022, Mr Ahmed removed the claimant’s “sit call”, which had been a regular component of her hours and would have been especially suitable during pregnancy as it comprised light duties?

[217]This relates to RS, and we have found that this call was removed from 9 December 2022. Prior to that time, she had been informed that she was allocated that call on a regular basis and we accept the claimant’s evidence that it was suited to her during pregnancy as it comprised light duties. This was therefore done as alleged. Not permitting the Claimant to return / offering her work on 27 December 2022

[218]This relates to the fact that the claimant had messaged the respondent on 20 December 2022 to indicate that she would be returning from sickness absence on 27 December 2022, however the respondent did not acknowledge the message until 28 December 2022 and she was not put onto the rota that week. It was not in reality that she was not permitted to return, but rather than her message was ignored. However the consequence was that she could not return to work on 27 December 2022 and therefore in general terms this did happen. Reducing / offering the Claimant fewer hours in the period from the end of December 2022 to 17 March 2023 from a pattern pre-pregnancy of, approximately, a 46-hour week followed by a 30-hour week, to a pattern of a 32- hour week followed by a 20-hour week

[219]We have not analysed every single shift to identify the exact number of hours worked on each and every day. However, we can see from the evidence a general pattern that (excluding periods of sickness, annual leave and other absence) the claimant was not being offered as many hours of work as had previously been the case during that period.

[220]We consider that the claimant’s hours were reduced to reflect the fact that between December 2022 and March 2023 certain clients were removed from her – specifically RS, SM, KL and KR. Two of those were at the claimant’s request and the claimant does not raise any issues in relation to the fact they were removed (KL and KR), two were not.

[221]In addition, on 15 March 2023 the claimant’s hours were reduced because she was taken off the rota due to the respondent saying that she needed a risk assessment (which they did not pay her for). Whilst the respondent submitted during the hearing that the allegation of not being allowed back to work was not part of the claimant’s case, we do consider that this falls within the general issue of reducing / offering fewer hours: by not permitting her to work that did reduce her hours. It is referenced in her particulars of claim (at page 16) and is part of her complaint. For completeness we would mention that on 30 January 2023 her hours were also reduced for the following day however on that occasion the claimant agreed to that. Not paying the Claimant for a day of leave taking to attend an antenatal appointment, following her email of 7 February 2023.

[222]The claimant was not paid for her antenatal appointments on 27 February or 24 April 2023, both of which were referenced in her email of 7 February 2023. Both appointments took place on the claimant’s normal working days. By 24 April 2023 the claimant was on sick leave and only statutory sick pay would have been payable. On 17 March 2023, ceasing to offer the Claimant any hours at all. On 20 March 2023, telling the Claimant during a telephone conversation that she would not be offered any more shifts.

[223]We consider these together as they are linked. From this date the claimant was not offered any hours from the Edgbaston branch, however she was offered hours by the Sutton branch. This allegation therefore did not occur as alleged. Not paying the Claimant the correct amount of SSP for the period from 24 March to 31 May 2023;

[224]We conclude that the claimant was not paid the correct amount of statutory sick pay during this period. The payslips show that in March 2023 she received no statutory sick pay (although she was only off sick from 24 March 2023), in April 2023 she received £184.86 of statutory sick pay which appears to the Tribunal to be lower than the amount that she would have been entitled to based on her previous hours of work and in May 2023 she received no statutory sick pay at all. There is no information on later payslips to suggest that this was corrected. We conclude that she was not paid the correct amount of SSP during that period. Whilst the Claimant submitted her MatB on 31 March 2023, she received no breakdown of her maternity pay until June or July 2023.

[225]We were not provided with all of the documentary evidence, however we found the claimant’s oral evidence to be candid and we accept that she did not receive such a breakdown until June or July 2023. This was part of the backdrop to the claimant’s email exchanges with the finance department about her annual leave, sick pay and maternity pay. By doing so, did it subject the Claimant to detriment?

[226]Taking each of the acts in turn:a. Removing RS from the claimant’s rota was clearly detrimental to her, both because it meant that her hours reduced and also because she reasonably considered his work to be particularly suited to her in

b. Not permitting the claimant to return to work on 27 December 2022 was clearly detrimental because it meant that she could not work and was not paid.

c. In relation to the general reduction in hours between December 2022 and March 2023 we conclude that this was detrimental both in relation to RS (as outlined above) and SM, who the claimant also considered to be suitable in pregnancy. However, in relation to KL and KR these were both at the claimant’s request and did not amount to a detriment. In relation to taking her off the rota for 31 January 2023 the claimant agreed to this and in those circumstances we do not consider it to have reasonably been to her detriment. However, in relation to 15 March 2023 she did not agree to this and that amounted to a detriment.

d. In relation to antenatal appointments, it was clearly detrimental to the claimant that she was not paid for these.

e. In relation to ceasing to offer the claimant hours or shifts from 17 / 20 March 2023, we have found that this was not the case given that she was offered work in Sutton. It is not therefore necessary to consider whether this amounted to a detriment.

f. In relation to not paying the claimant the correct amount of statutory sick pay, this was detrimental to her as it meant that she was not paid what she was entitled to be paid.

g. In relation to not providing a breakdown of maternity pay, this was again detrimental to the claimant because it meant that she was unable to accurately calculate her future pay and/or to understand her payslips fully. If so, was it done on a ground prescribed pursuant to section 47C of the Employment Rights Act 1996, namely her pregnancy (MAPLE reg 19(2)(a)).

[227]Where we have found that the acts (or failure to act) subjected the claimant to a detriment, it is for the respondent to show the ground on which the treatment occurred.

[228]We address first the removal of RS from the claimant’s rota. This occurred during the claimant’s period of relatively short annual leave, a few weeks after the claimant had informed the respondent of her pregnancy and only one day after the claimant had specifically advised Mr Ahmed of the need for a risk assessment, thereby putting him on notice of her pregnancy.

[229]Mr Ahmed did not give evidence to explain the reason why he removed her from the rota and we have addressed his absence above. Miss Kouser suggested that the reason for removing RS from the rota was about convenience of shift pattern and/or about not removing work from Mr Khan. In relation to convenience of shift pattern, at that stage the claimant had been doing that shift pattern without issue, and so we do not see that it would have been more convenient in any way to remove it from her. In relation to Mr Khan at that point in time he had only been covering a short period of annual leave whereas the claimant had been allocated that “sit” on a regular basis. We note that we have referenced the friendship between Mr Ahmed and Mr Khan and we have considered whether that friendship might be the reason why he was given additional work (i.e. to bump up his hours). However, even if that were the case, it is still necessary to consider why it was the claimant’s work that he was given (and not that of another colleague).

[230]We do not consider that the respondent has shown that the treatment was on another ground other than pregnancy. To the contrary, the Tribunal draws inferences from the proximity in time between the claimant advising Mr Ahmed of the need for a risk assessment and the change in the rota, the fact that previously it had been explicitly confirmed to the claimant that she could be assigned RS’s sit, the fact that she had only been absent at that time for a short period and therefore the respondent’s argument that continuity was needed does not make sense, and the fact that in respect of SM we have evidence which points to the pregnancy being the reason for the removal of that client. We also note that we have found that both Miss Kouser’s evidence and the documentation produced by the respondent is unreliable and specifically we have rejected the notion that the claimant indicated in an appraisal during that period that she had chosen to reduce her hours. The claimant’s complaint of detriment in relation to the removal of the RS shift succeeds.

[231]In relation to the claimant not being permitted to return to work on 27 December 2022, we note that her absence from work up to that point was due to a virus, and was not pregnancy related absence. The respondent has shown that the reason that the claimant did not return to work was because the respondent did not address the claimant’s email of 20 December 2022 until 28 December 2022 i.e. it was not that she was expressly not permitted to return, it was that the respondent did not get around to responding to her. We bear in mind that the respondent has not put forward a specific explanation for why this was, and that it is for the respondent to show the ground upon which the act was done (or not done). The subsequent reference to her having to attend a return to work interview is not satisfactory given that she was permitted to work without a risk assessment at other times, and given that the return to work interview took place on 3 January after she worked on 2 January in any case.

[232]That said, the respondent has (inadvertently) shown us through the various communications to which we were referred during the hearing that the respondent is generally not always proactive about responding to emails. We take judicial notice that this was the Christmas period, during which some employees were no doubt on annual leave. Whilst we recognise that the burden of proof is on the respondent to show the ground on which the treatment was done, and whilst there is no clear evidence to demonstrate that the ground was any one particular thing, when considering the whole context and the approach of the respondent more generally to emails, we consider that the reason why the claimant did not return to work on 27 December 2022 was simply that the respondent had not got round to dealing with her email as yet. The complaint therefore fails in relation to this point.

[233]In relation to the reduction of the claimant’s hours between December 2022 and March 2023 we have addressed RS above. In relation to SM we heard unchallenged evidence from SM’s mother indicating that the claimant’s pregnancy was the reason she was given for removing the claimant from the rota. This was a “sit” which the claimant had been doing regularly, which was suitable for her in pregnancy (contrary to what Mr Ahmed told SM’s mother) and which the claimant and SM’s mother were both happy for her to continue doing. The respondent has not shown any ground other than pregnancy on which this was done, and to the contrary we conclude that the evidence indicates that the reason was in fact pregnancy. The claimant’s complaint in relation to the reduction in shifts due to the removal of SM succeeds.

[234]In relation to KL and KR, these have already been found not to be detriments and therefore it is not necessary to consider them any further.

[235]In relation to being removed from the rota on 15 March 2023, the respondent has said that this was because the claimant required a risk assessment. However, attendance to complete a risk assessment would in itself be working time for which the claimant should be paid. The respondent has not shown any ground other than pregnancy to explain why the was removed from the rota and not paid on 15 March 2023, when the claimant had indicated that she was fit to work on that day. To the contrary, the respondent in fact appears to accept that it was on grounds of pregnancy, i.e. it says that she needed a risk assessment because of her pregnancy. The claimant’s complaint of detriment in relation to the reduction (removal) of her hours on 15 March 2023 specifically succeeds.

[236]In relation to not paying the claimant to attend an antenatal appointment following her email on 7 February 2023, the respondent appears to accept that she was not paid for this (and indeed her payslips show that she was not). The respondent’s position is that she was not entitled to be paid as she was not an employee. We have concluded that she was an employee and therefore was entitled to be paid. An antenatal appointment is clearly an appointment which is on grounds of pregnancy. The fact that the respondent says she was not entitled to be paid as she was not an employee does not change the fact that the respondent has not shown that it was not on the ground of pregnancy (given that the reason for absence was clearly due to her pregnancy). We would add that it should have been obvious to the respondent that she was an employee in the circumstances. The claimant’s complaint of detriment in relation to her antenatal appointments as notified in her email on 7 February 2023 succeeds.

[237]In relation to ceasing to offer the claimant any hours at all and/or telling her that she would not be offered any more shifts on 17 and/or 20 March 2022, we have found that this did not happen as alleged: she was told only that she would not be offered work at Edgbaston. In any case, we conclude that in light of the claimant’s back condition which she had disclosed on 14 March 2023, moving the claimant to Sutton was an alteration of working conditions which would avoid risks associated with pregnancy as provided for in Regulation 16(2) of the Management of Health & Safety at Work Regulations 1999, and therefore was something that the respondent was actively required to do if reasonable to do so (and we find that it was reasonable to do so). The claimant’s complaint in this regard fails.

[238]In relation to both not paying the claimant SSP and providing no breakdown of maternity pay, we recognise that the burden is on the respondent to show the ground on which it was done and that neither of the respondent’s witnesses gave any evidence on the topic. However, we equally recognise that just because the respondent has failed to show another ground for the treatment, that does not mean that the claimant succeeds by default. Equally we consider that the claimant has not identified any evidence which suggests that the ground was related to her pregnancy. This matter was dealt with by a separate finance team, which is not tainted with the various inferences that we have drawn from the way that the respondent treated the claimant in relation to her shifts more generally, nor have we seen any evidence to suggest that they were aware of the separate dispute that the claimant had with Mr Ahmed and Miss Kouser. Based on the general difficulties that the claimant appears to have had corresponding with the finance team, and noting that the claimant’s pay would have been a relatively complex calculation given her varying hours of work (not only because shifts were taken off her but also because of the variable weekend work) we conclude that the reason why the SSP was not paid correctly and why there was no breakdown of maternity pay until June or July 2023 was because the finance team made a genuine error and/or were still investigating the matter. Pregnancy and Maternity Discrimination (Equality Act 2010 section 18) Did the Respondent treat the Claimant unfavourably by doing the following things: 1. Reducing / offering the Claimant fewer hours in the period from the end of December 2022 to 17 March 2023 from a pattern prepregnancy of, approximately, a 46-hour week followed by a 30-hour week, to a pattern of a 32-hour week followed by a 20-hour week; 2. Not paying the Claimant for a day of leave taken to attend an antenatal 3. On 17 March 2023, ceasing to offer the Claimant any hours at all; 4. On 20 March 2023, telling the Claimant during a telephone 5. Not paying the Claimant the correct amount of SSP for the period from 24 March to 31 May 2023; 6. Whilst the Claimant submitted her MatB on 31 March 2023, she received no breakdown of her maternity pay until June or July 2023.

[239]We refer to our earlier conclusions as to whether these things occurred, and where we found those things to amount to a detriment by the respondent, we conclude that it equally amounts to unfavourable treatment. Did the unfavourable treatment take place in a protected period? If not did it implement a decision taken in the protected period?

[240]It is accepted that it occurred during pregnancy therefore it did occur during the protected period. Was the unfavourable treatment because of the pregnancy?

[241]Removing RS’s “sit call” and not permitting the claimant to return to work on 27 December 2022 are not specifically listed as separate instances of unfavourable treatment in respect of pregnancy and maternity discrimination in the List of Issues prepared by Employment Judge Maxwell dated 5 January 2024. Those issues were reviewed and amended by Employment Judge Gaskell at the preliminary hearing on 20 February 2024 and this was not inserted at that time. Neither party raised any issue about this at the outset of the hearing when the Tribunal specifically flagged (when going through the respondent’s composite draft List of Issues) that these were not listed issues to determine as part of the pregnancy and maternity discrimination complaint. In those circumstances we do not proceed to consider those specific issues. However, in any case the claimant has succeeded in relation to the RS issue in her detriment complaint and therefore will be entitled to compensation through that mechanism, and we would mention that we would not have found that the issue regarding her not returning to work on 27 December 2022 was because of pregnancy in any event for the reasons we have set out above.

[242]Turning to the allegation that the claimant was offered reduced hours between the end of December 2022 and 17 March 2023, in relation to the removal of SM from her rota, SM’s mother gave evidence that she was specifically told by Mr Ahmed that the reason why the claimant could not continue with the appointments was because standing at the sink to wash up, prepare vegetables etc. was not good for a pregnant woman. Mr Ahmed was not at the hearing to contradict that evidence. In those circumstances we conclude that the claimant has clearly shown facts from which the Tribunal could conclude, in the absence any other explanation, that discrimination occurred. The burden of proof shifts to the respondent to show that discrimination did not occur. Miss Kouser said that she was not able to say what Mr Ahmed’s rationale was (and in any case we have also found her evidence to be unreliable). The respondent has not shown another reason for the treatment: to the contrary the evidence suggests that Mr Ahmed’s conscious mental process was that the decision was because of the pregnancy. The claimant’s claim in relation to the removal of SM from her rota during the period end of December to 17 March 2023 succeeds.

[243]The other unfavourable treatment we have found in relation to a reduction in shifts was in relation to 15 March 2023. The claimant had been absent the previous day due to pregnancy-related illness. It was directly following her advising the respondent of that pregnancy-related illness that she was informed that she was removed from the rota the following day, despite the respondent being aware that she was happy to work. In those circumstances we consider that the claimant has shown facts from which , we could decide, in the absence of any other explanation, that discrimination has occurred. The burden of proof shifts to the respondent. Neither Miss Kouser nor Mr Owusu-Ansah gave specific evidence (written or oral) about why the respondent removed that particular shift or what their mental processes were at that time.

[244]We note that the claimant was then required to attend a risk assessment and we have considered whether the respondent has shown that the treatment was because of a need for a risk assessment. However, no explanation has been provided as to why she could not do other calls (i.e. other than KR) pending such risk assessment and in any case if she were removed from calls to attend a risk assessment, that would remain working time (as attending a risk assessment is in itself work) and therefore should have constituted hours of work. We also consider that if the respondent had decided that the claimant should not work pending that risk assessment, then it was for the respondent to continue to pay her until it was done (assuming the claimant did not prevent it being done for some reason). Regardless, the claimant did attend a risk assessment on 15 March but the respondent did not treat this as working hours.

[245]We have also considered whether the pregnancy / pregnancy-related absence is no more than the context in which the treatment occurred, rather than the treatment being materially influenced by it. However, first, given that the burden of proof has shifted, this would be for the respondent to show and they have not. Secondly, we conclude in any case on the balance of probabilities that by this stage the respondent was concerned that the claimant might have further pregnancy-related absence and was removing her from the rota the following day in order to avoid any risk of having client appointments cancelled by the claimant at short notice. The pregnancy and specifically the illness suffered as a result of it materially influenced the decision to remove her from the rota on 15 March 2023. The claimant’s complaint succeeds in relation to 15 March 2023.

[246]As for not paying the claimant for a day of leave taken to attend an antenatal appointment, we have found that this did happen as alleged. The claimant has shown that she notified the respondent of her antenatal appointment in advance, and that she made clear it was an antenatal appointment. The reason she was not paid was materially influenced by the fact that she was taking time off to attend a pregnancy-related appointment: it was because of the pregnancy. The claimant’s complaint succeeds in relation to her ante-natal appointments on 27 February 2023 and 24 April 2023.

[247]In relation to ceasing to offer the claimant hours / shifts on 17 and 20 March 2023, we repeat our earlier conclusions that this related only to Edgbaston and therefore that the unfavourable treatment did not occur as alleged. In any case however on this occasion we consider that the respondent has shown that the reason for moving the claimant to Sutton was an alteration of working conditions which would avoid risks associated with pregnancy as provided for in Regulation 16(2) of the Management of Health & Safety at Work Regulations 1999, and therefore was something that the respondent was actively required to do if reasonable to do so (and we find that it was reasonable to do so). Whilst the pregnancy is clearly relevant, on this occasion we find that it was the context and that the motivation of the respondent was to protect the claimant’s health and safety in light of her back injury. This aspect of the claimant’s complaint fails.

[248]As for not paying the claimant the correct amount of statutory sick pay and not providing a breakdown of maternity pay, the claimant has shown that there was a lack of response from the finance team during this period. However, the finance team was separate to the departments in which Miss Kouser and Mr Ahmed worked and the claimant has not shown any facts from which we could conclude that, in the absence of any other explanation, discrimination has occurred: the simple fact that the finance department paid the wrong amount and/or delayed providing information is not sufficient on its own to shift the burden of proof. In any case, we have also concluded above that in reality this was due to error / mistake on the finance department’s part and due to it being a complex calculation. This aspect of the claimant’s complaint fails. Victimisation (Equality Act 2010 section 27) Did the Claimant do a protected act as follows: an email on 30 December 2022, in which she expressed concern about whether her hours had been reduced because of pregnancy;

[249]Whilst this email references her pregnancy (page 144) it does not make an allegation or suggest that discrimination has occurred. It is not a protected act. email on 3 February 2023 in similar terms;

[250]This email (page 149) does not contain an allegation and is not a protected act. two such emails on 13 March 2023;

[251]The first of these (page 155) is conveying information and not making an allegation of any wrongdoing, it is not a protected act. The second (page 244) is in fact a series of text messages and it does not reference the Equality Act, nor does it reference any allegation of discrimination: it is simply a complaint that her calls have been taken off her rota and therefore is a complaint of unfavourable treatment but not related to anything in particular. This is not a protected act. on 7 January 2023 to the on-call phone the claimant raised concerns about her hours reducing;

[252]This was a text message which simply conveyed information about her hours reducing, there was no allegation referenced (nor any suggestion of discrimination) (page 236). This was not a protected act. on 22 March 2023 the claimant raised concerns with Sahima Kauser over email regarding her phone conversation with Aftab Ahmed about the ceasing of her hours on 20 March 2023. There were further emails from 22 March to 3 April on that topic between Ms Kauser and the claimant.

[253]The theme of these communications is one of general unfair treatment (pages 159 to 160). Whilst pregnancy is referenced in some communications, we do not consider that there is a clear assertion of discrimination which might breach the Equality Act 2010. These are not protected acts. Between 12 and 19 April 2023, and on 4 May 2023, the claimant raised concerns about her hours by email to Aftab and Sahima.

[254]In relation to the communications between 12 and 19 April, we repeat the conclusions made in relation to those between 22 March and 3 April above (page 160). However, in relation to the 4 May 2023 email, here she stated specifically that she did not believe her pregnancy rights had been adhered to. The context of the email makes clear that the claimant believes that her hours have been reduced because of her pregnancy. Whilst the Equality Act 2010 is not referenced, that is not a pre-requisite for an act to be a protected act and we conclude that this was a protected act. Did the Respondent do the following things: 1. Reducing / offering the Claimant fewer hours in the period from the end of December 2022 to 17 March 2023: from a pattern pre-pregnancy of, approximately, a 46-hour week followed by a 30-hour week, to a pattern of a 32- hour week followed by a 20-hour week; 2. Not paying the Claimant for a day of leave taken to attend an antenatal 3. On 17 March 2023, ceasing to offer the Claimant any hours at all; 4. On 20 March 2023, telling the Claimant during a telephone conversation that she would not be offered any more shifts; 5. Not paying the Claimant the correct amount of SSP for the period from 24 March to 31 May 2023; [Note: this had not been updated from 24 May 2023 at the Preliminary Hearing on 20 February 2024 however given that the wording is identical to the other issues relating to this matter which had been updated, we consider that this is clearly a drafting error and have therefore updated it accordingly] Whilst the Claimant submitted her MatB on 31 March 2023, she received no breakdown of her maternity pay until June or July 2023.

[255]We refer to our earlier conclusions on these points. By doing so, did it subject the Claimant to detriment?

[256]We refer to our earlier conclusions on these points. If so, was it because the Claimant did a protected act?

[257]The only acts which post-date the protected act are the failure to pay the correct amount of SSP and the failure to provide a breakdown of maternity pay until June or July 2023. We have concluded above that those things were due to error and/or the complexity of the matter. The claimant has not shown facts from which we could conclude that the protected act had a more than trivial (or in fact any), conscious or subconscious influence on the treatment. We have not even been provided with any evidence to suggest that the finance team had knowledge of the protected act. This complaint must fail. Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[258]Again, we have seen no evidence from which we could conclude, in the absence of another explanation, that it was for that reason. This complaint must fail. Unauthorised deductions Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted? Not paying the Claimant for a day of leave taken to attend an antenatal

[259]The claimant’s email of 7 February 2023 referred to two antenatal appointments, on 27 February 2023 and on 24 April 2023. She was an employee and was entitled to paid time off to attend those appointments: they fell on her normal working days (and for the avoidance of doubt although she was employed on a zero hours contract we conclude that she did have normal working days which included the days of the ante-natal appointments).

[260]She was not paid on the afternoon of 27 February 2023 (although she was paid for work she carried out in the morning before the appointment). She was entitled to be paid for the hours spent attending the ante-natal appointment. This amounted to wages properly payable to her.

[261]In relation to the appointment on 24 April 2023, she was on sick leave at this time and would remain entitled to statutory sick pay during the appointment. We have found separately that there was a failure to pay the claimant the right amount of sick pay during April 2023 (which would include the day of the antenatal appointment). The claimant’s complaint of unauthorised deductions in relation to antenatal appointments therefore succeeds in relation to those appointments. Not paying the Claimant the correct amount of SSP for the period from 24 March to 31 May 2023.

[262]We have already found that this occurred. The claimant was entitled to statutory sick pay during her absence period and these were sums that were properly payable to her. The claimant’s complaint of unauthorised deductions in respect of statutory sick pay from 24 March 2023 to 31 March 2023 succeeds. Time limits Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 10 March 2023 may not have been brought in time.

[263]We start by identifying the complaints which have succeeded and the dates on which the relevant discrimination / act which caused the detriment took place. The unauthorised deductions claim arose after 10 March 2023 and therefore was clearly in time, so we do not address that.

[264]The acts which we have concluded amounted to discrimination and/or a detriment under section 47C of the ERA are:a. The removal of the RS sit on or around 9 December 2022;

b. The reduction in hours between the end of December 2022 and 17 March 2023 in relation to the removal of SM appointments from the rota, and in relation to 15 March 2023;

c. The failure to pay the claimant at the appropriate rate for antenatal appointments on 27 February and 24 April 2023.

[265]In relation to RS if that issue is taken alone, the decision was taken on or around 9 December 2022 and we have been provided with no evidence to suggest that the claimant was added back into RS sit calls at any stage after that point. Therefore, it happened prior to 10 March 2023 and therefore prima facie would be out of time, both in relation to discrimination and detriment.

[266]In relation to SM, the evidence was that the last appointment the claimant had with her was on 12 March 2023. Whilst it appears to have been an ongoing reduction during February and March, we consider that this was conduct extending over a period and a series of similar acts, culminating in the final act / conduct being at the earliest 12 March 2023 which was the final sit she had. We recognise that the test is not the consequences of the act but the act itself but given that the rota was reviewed weekly and it was only after 12 March that the final decision was taken not to place any more SM calls with the claimant, we consider that this was the relevant date and that the claim was therefore brought within the required time limits.

[267]In relation to the incident relating to 15 March 2023, this was clearly in time.

[268]Overall, in relation to the removal of the RS appointments, the removal of the SM appointments and the removal of work on 15 March 2023, we conclude that this all formed part of conduct extending over a period / was a series of similar acts i.e. the reduction in the work provided to the claimant because of her pregnancy. Therefore, we conclude that the claimant’s complaints in relation to all of the allegations which have succeeded were in fact presented within the required time limits.

[269]In relation to the antenatal appointments, whilst the first of the ante-natal appointments that this relates to was on 27 February (more than three months before ACAS early conciliation commenced), we note from the claimant’s payslips that the relevant payroll period was stated to be the 23rd of the previous month to the 22nd of that month. Therefore, pay for 27 February would fall into the next month’s pay cycle and would be paid towards the end of March. It would therefore be in time. The 24 April 2023 appointment was also clearly in time. Remedy and Case Management Orders

[270]We agreed that a separate remedy hearing would be convened to consider the amount of compensation that should be awarded to the claimant. We consider that given the complexity of the issues relating to the claimant’s shift patterns, that two days will be required for this, to enable time for the Tribunal to review the parties’ submissions as to the exact amounts payable and how this has been calculated. The parties will be notified separately of the date of this hearing in due course.

[271]By 7 March 2025 the claimant must prepare an updated Schedule of Loss and send this to the Tribunal and to the respondent setting out:a. The appointments that she considers she would have had with RS, had he not been removed from her rota (i.e. what was her working pattern in relation to RS sits immediately prior to her annual leave at the end of November 2022)?

b. The appointments that the claimant considers she would have had with SM, had she not been removed from her rota (i.e. what was her working pattern in relation to SM immediately prior to her annual leave at the end of November 2022);

c. The amount of time that the claimant would have needed to attend her ante-natal appointments (i.e. how many hours of absence);

d. The amount of statutory sick pay to which the claimant was entitled between 24 March 2023 and 31 May 2023, with an explanation of how that has been calculated;

e. The amount of injury to feelings sought by the claimant (and/or any other compensation sought) and on what basis.

[272]To the extent that the respondent disagrees with any figures or comment provided in the Schedule of Loss, it shall provide a counter Schedule of Loss setting out what it believes the appropriate figures should be, and why, by 28 March 2025. It should be sent to the claimant and to the Tribunal.

[273]The parties should seek to agree the figures as far as possible in advance of the remedy hearing: if the parties are able to do so then it might be that only one day for remedy would be required (and the parties should notify the Tribunal as soon as possible if they have been able to do so). The parties may of course wish to see if they can resolve the matter between themselves and agree terms of settlement, in which case no remedy hearing would be required.

REMEDY

[1]The respondent shall pay the claimant the following sums in respect of pregnancy and maternity discrimination / detriment for the prescribed reason of pregnancy, childbirth or maternity:a. Compensation for past financial losses: £417.55. This is the gross sum as it has not been possible to calculate the net sum: the claimant is responsible for the payment of any tax or National Insurance.

b. Interest on compensation for past financial losses calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £55.44

c. Compensation for injury to feelings, of which £2,000 are aggravated damages: £22,550

d. Interest on compensation for injury to feelings calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £5,664.07

[2]The respondent shall pay the claimant £879.71 in respect of unauthorised deductions from wages. This is the gross sum deducted and the claimant is responsible for the payment of any tax or National Insurance.

[3]The above figures are inclusive of a 10% uplift in compensation to reflect the respondent’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

[4]No compensation is awarded in respect of future financial losses.

Issues

[1]The claimant was successful in some of her complaints, as set out in our Reserved Judgment dated 30 January 2025. Specifically, she had succeeded in respect of the following:a. That she was subjected to detriment for the prescribed reason of pregnancy, childbirth or maternity in relation to: i. The removal of the RS appointments; ii. The removal of the SM appointments; iii. The removal of the claimant’s shift on 15 March 2023; and iv. Failure to pay the claimant for attending ante-natal appointments on 27 February 2023 and 24 April 2023.

b. Pregnancy and maternity discrimination in relation to: i. The removal of the SM appointments; ii. The removal of the claimant’s shift on 15 March 2023; and iii. Failure to pay the claimant for attending ante-natal appointments on 27 February 2023 and 24 April 2023.

c. Unauthorised deductions from wages in respect of: i. Not paying the claimant for a day of leave taken to attend an ante-natal appointment following her email of 7 February 2023; and ii. Not paying the claimant the correct amount of SSP for the period from 24 March to 31 May 2023.

[2]There was insufficient time to consider remedy at the liability hearing and therefore this separate hearing was listed for that purpose. The hearing was converted to video at the claimant’s request and the Tribunal offered the claimant frequent breaks by way of reasonable adjustment because of her health (to which we turn in more detail below).

[3]A file for the remedy hearing amounting to 698 pages was provided to the Tribunal (prepared by the respondent) and the claimant also provided a further bundle amounting to 86 pages. References in this Reserved Judgment to page numbers are to the relevant page in the 698 page file, unless otherwise indicated. The claimant and respondent had prepared a Schedule of Loss and Counter Schedule of Loss respectively. Witness evidence was heard from the claimant and from Mr McDonald, Mrs Jamieson and Mrs Moore on the claimant’s behalf, and from Mr OwusuAnsah on behalf of the respondent. Both parties provided written submissions and supplemented those orally.

[4]The claimant raised concerns about the file at the outset, saying that the respondent had sent through an updated file only two days prior to the hearing which was significantly different to the previous version and that he had not had sufficient time to go through it. The Tribunal also noted that the file for the hearing did not contain either parties’ Schedule of Loss (the claimant’s being in the claimant’s supplementary file, and the respondent’s having been sent directly to the Tribunal some months earlier but not included in either file).

[5]Some time was spent discussing the bundle issues. It was clear that the respondent’s representative had not been involved in the preparation of the file, and he sought to take instructions from his client during the hearing. However, Mr Owusu-Ansah seemed unable to shed much light on what had happened himself. The Tribunal clarified with the claimant whether she felt able to proceed with the hearing and she confirmed that she did, and the Tribunal ensured that she had time to review the bundle whilst it read the papers before the parties gave their evidence. We made clear to the parties that we would read the documents that we were taken to (and not the whole file), and the parties provided the Tribunal with a reading list for that purpose.

[6]During the course of the hearing the respondent also provided an email dated 13 November 2025 setting out what it considered to be the hours that the claimant would have been unavailable for shifts with RS and SM due to working on other shifts. On 14 November 2025 the respondent also provided a further document called “Table re clashes” which set out what it considered were the shifts where the claimant would have had a clash in any event.

[7]Within the file, the claimant had included a psychological assessment report (page 244), although not the instructions for it. Some limited instructions were disclosed during the course of the hearing. The respondent had not objected to it prior to the hearing, but the respondent’s representative submitted at the hearing that the Tribunal should not take account of it because it was not a joint medical report and no permission had been given to the claimant to obtain expert medical evidence. In the Notice of Hearing the claimant had however been directed that she would need to provide medical evidence in support of her assertion that the treatment she received had caused her personal injury. The respondent had been aware for some time (through the remedy disclosure process) that the claimant intended to rely on it and it was not until the remedy hearing that any objection was made to it. We also recognised that the author was a qualified clinician who had expressly recognised their duty to the court and stated that they had complied with it (page 256). We noted that she had been provided with a significant amount of documentation in order to prepare her report, including medical information and our Reserved Judgment dated 30 January 2025. We found the report to be generally balanced and not one sided, however we also acknowledge that we do not know exactly how the instructions were set out by the claimant: the instructions that we were provided with were very generic and we consider it is likely that she verbally supplemented these during the assessment. We bear that in mind, however we do consider the report to nevertheless be helpful and relevant and have had reference to it.

[8]It was apparent that some of the calculations to be done for remedy would be complex, with it being necessary to identify specific shifts on which the claimant would have worked had the discrimination / detriment not occurred (and then also to consider how that would have affected her later statutory maternity pay). The parties had therefore been encouraged to seek to agree what they could in relation to the financial aspects of calculation prior to the hearing, however had for the most part been unable to reach agreement on most things. They did however agree that the claimant’s gross pay was £9.90 per hour and we have used this in our calculations.

[9]Ultimately there was insufficient time to prepare and present an oral judgment at the hearing and therefore we reserved our decision. Issues

[10]The issues that we had to determine were confirmed to the parties at the start of the hearing as follows: Detriment / Discrimination

[1]What financial losses has the discrimination / detriment caused the claimant? In this regard, it was agreed that the claimant’s rate of pay was £9.90 gross and therefore this required calculation of how many hours the claimant would have worked during the relevant period and how much should be awarded for this.

[2]Has the respondent proven that the claimant failed to take reasonable steps to replace any lost earnings, such as by failing to take reasonable steps to find another job?

[3]For what period of loss should the claimant be compensated?

[4]What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

[5]Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

[6]Should the claimant be awarded aggravated damages and how much compensation should be awarded for that?

[7]Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

[8]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

[9]Did the respondent unreasonably fail to comply with it by failing to treat the claimant’s email of 4 May 2023 (para 146 of reserved judgment) as a grievance?

[10]Did the claimant unreasonably fail to comply with it by failing to submit a grievance on or around 4 May 2023?

[11]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? Wages

[14]How much is owed to the claimant. Facts 11. In our reserved judgment dated 30 January 2025 (“the Reserved Judgment”), the Tribunal found discrimination and/or detriment in relation to the following:a. The claimant was removed from the RS rota from 9 December 2022 (paragraph 217 of the Reserved Judgment);

b. The claimant was removed from the SM rota in the period from the end of December 2022 to 17 March 2023 (at paragraph 233 and 242 of the Reserved Judgment). The last call with SM was on 12 March 2023.

c. The claimant was removed from the rota on 15 March 2023 (paragraph 235);

d. A failure to pay the claimant for attending ante-natal appointments on 27 February 2023 and 24 April 2023. Whilst the claimant has referenced other appointments, our conclusions only related to those ones and therefore this Reserved Judgment on remedy is also limited to those two appointment. 12. The Tribunal also found that the claimant’s complaint of unauthorised deductions from wages succeeded in relation to the antenatal appointments on 27 February 2023 and 24 April 2023 (although she was on sick leave and therefore entitled to statutory sick pay on 24 April 2023). She also succeeded in relation to her allegation that she had not been paid the correct amount of statutory sick pay for the period 24 March to 31 May 2023. 13. The facts set out below relate to the facts which we consider to be relevant to the determination of remedy. We have on occasion within these Reasons also referred to findings of fact which were previously made at the liability hearing, and have cross-referenced the relevant paragraph from that Reserved Judgment dated 30 January 2025. 14. We found (at paragraph 135 of the Reserved Judgment) that all of the claimant’s calls were subsequently taken off her on 17 March 2023 and she carried out no further work thereafter. The claimant was unsuccessful in relation to the removal of those further calls and in relation to her allegations which related to the period after that time and therefore the period in respect of which the claimant’s claims were successful must therefore be necessarily limited to the period up to 17 March 2023.

[15]Following the removal of the claimant’s shifts on 17 March 2023, the claimant was subsequently signed off sick from 24 March 2023 and remained off sick until her maternity leave commenced (paragraph 138 of the Reserved Judgment). On 3 July 2023 she had her baby. This was her third child, and it was relevant to note that both of her other two pregnancies went smoothly. Whilst we recognise that every pregnancy is different, we find on balance of probabilities that, unless otherwise stated, any health issues arising since the dispute with the respondent occurred were not as a result of her pregnancy.

[16]We saw a text message exchange dated 11 July 2023 between the claimant and her father (page 479) about her baby, in which she said “…..I’ve had so much stress with all that at work I haven’t enjoyed it.” This was a reference to her pregnancy and we find that the treatment of the claimant at work (including the discrimination and detriment she suffered) impacted her enjoyment of the pregnancy.

[17]In her witness statement, the claimant described feelings of hurt, confusion and humiliation at the way that she had been treated by the respondent. We found her to be candid in her evidence and we accept that this is how she felt. In addition, we heard evidence that the claimant stopped doing the school run (for her other children) or walking the dog after the discrimination took place as she could not face going out, and we accept both her evidence on this and Mr McDonald’s evidence about the additional support he needed to provide to raise their children. In saying this, we recognise that they are also his children and therefore he would naturally be taking part in their care in any event, however it was clear that he was carrying on a higher element of their care than had previously been the case or that had previously been envisaged by them. We also bear in mind that litigation is inherently stressful, as is moving house and having a baby and this may have contributed to the claimant’s feelings of stress, however we find that this went beyond the normal feelings associated with litigation. The claimant was also sleeping with the light on and having nightmares.

[18]Mr McDonald also gave candid evidence about the impact of the claimant’s treatment by the respondent on their relationship, and we accept what he said. He explained that their relationship became strained as a result, with the claimant becoming more snappy generally. This was supported by the assessment report (page 254) and the claimant’s own evidence, in which she referred to her children not understanding why she had started shouting a lot and getting easily annoyed by the smallest of things.

[19]We also heard that during the liability hearing, unbeknownst to the Tribunal at the time, the claimant at one stage became overwhelmed (when her daughter’s dummy was stuck under the cot) and smashed the cot up. (For completeness we add that her daughter was not in the cot and there appears to have been no danger to the child) (page 455). This shows that the dispute with the respondent and associated litigation were causing the claimant considerable distress and stress with which, at that moment at least, she was not coping.

[20]We were provided with medical evidence regarding the claimant’s mental health following March 2023. She is described in the medical evidence as being mixed anxiety and depressive disorder. However the earliest contemporaneous medical evidence is dated 6 March 2024 (page 475). This related to a GP appointment at which she was prescribed citalopram. She had previously visited the doctor about physical symptoms which she says in fact turned out to be linked to her mental health. Whilst we do not doubt that the claimant believes this to be so, we have not seen sufficient evidence to conclude on the balance of probabilities that this was the case. The claimant at that stage was offered, but declined, CBT because she did not want to be seen to be going down that route. Whilst we understand that, having recently had a baby and being focussed on care for the baby, and we do not doubt that she was suffering some mental health symptoms in 2023, we also consider that if the impact on the claimant was very significant then she would have sought medical assistance earlier than March 2024 and/or would have accepted the offer of CBT.

[21]At the time of the remedy hearing, the claimant had not worked since having her baby in July 2023. She remained on medication. However, it appears from the GP records (page 464) that the claimant had stopped being on them and then re-started them during that period. The claimant had also moved house (to another part of the country) in 2024 which she says was for a new start away from Birmingham. On February 2025 the GP records note that she had low mood, was not enjoying things as much, poor motivation, poor sleep, a panic feeling in bed at night and health anxieties.

[22]The claimant says that she can no longer work in domiciliary care because of what happened to her. We find that the claimant does have some genuine nervousness about the possibility of doing so because of her experiences with the respondent. However, we would not go as far as to say that she would never work in that industry again given that it was clear to us that she enjoyed the work and given that she is now in a different location. We consider that she may not necessarily return to domiciliary care (although we do not rule it out) but we do consider that she may well remain in the care industry.

[23]Whilst the claimant has not yet returned to work, the medical evidence that we saw does not state that she was currently not fit to work at all. However, the assessment report (paragraph 17.2, page 256), commented that it was understandable that she felt unable to work because of the emotional difficulties but also added that this had exacerbated the claimant’s distress and low self esteem. The report also concluded that she should be able to find work once these proceedings have concluded. The claimant’s own evidence was that she would seek to return to paid employment around 6 months after the proceedings concluded. We do not accept, based on the evidence we saw, that a 6 month period would be required and we consider that she would be able to return to work sooner than that.

Law

[24]Section 124(2) of the Equality Act 2010 (EA) provides that: (2) The Tribunal may –(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;

(b) order the respondent to pay compensation to the complainant;

[25]Section 124(6) of the EA provides that the amount of compensation corresponds to the amount which could be awarded by the county court, and this includes financial loss. Section 119 of the EA makes clear that this can include an award for injury to feelings. There is no cap on compensation.

[26]Section 49 of the Employment Rights Act 1996 (ERA) provides that where a complaint which falls under that section is well-founded the Tribunal shall make a declaration to that effect and 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. The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement to which the complaint relates, and any loss which is attributable to the act, or failure to act, which infringed the complainant’s right. As per Virgo Fidelis Senior School v Boyle

2004 ICR 1210

, EAT, this can include injury to feelings.

[27]The purpose of compensation is, so far as possible, to put the claimant in the position she would have been in had the discrimination / detriment not occurred. The duty to mitigate losses applies.

[28]In respect of injury to feelings, this is a type of damages award and the principles of calculating it are tortious (Ministry of Defence v Cannock

[1994] IRLR 509

). The focus is on the injury, not the manner of the discrimination / detriment (Komeng v Creative Support Ltd EAT 0275/18).

[29]The leading case on calculating injury to feelings awards is Vento v Chief Constable of West Yorkshire Police (No 2)

[2002] EWCA Civ 1871

(“Vento”), in which it was held that injury to feelings “encompasses subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression”. In that case, three broad bands of compensation were set out, with the lower band being said to apply for the less serious cases, the middle band applying in serious cases that did not merit the upper band, and the upper band in the most serious cases. This case should not be taken to mean that the severity of discrimination forms the basis for calculation, but rather that the severity of the discrimination is likely to go some way to inform the severity of the injury. Those broad bands now increase annually, and the rates in place at the relevant time for the purposes of this claim (the claim form having been presented on 16 August 2023) were 1,100 to 11,200 for the lower band, 11,200 to 33,700 for the middle band, and 33,700 to 56,200 for the upper band. Further guidance on the calculation of injury to feelings awards is set out in Graham v Eddie Stobart

[2025] EAT 14

[30]In Prison Service v Johnson

[1997] IRLR 162

, Smith J set out five key principles for valuing injury to feelings:a. Awards for injury to feelings are compensatory and should compensate fully without punishing the other party. Indignation at the conduct should not inflate the award.

b. Awards should not be too low so as to diminish respect for the policy of anti-discrimination legislation, but should be restrained and not excessive.

c. Awards should bear some broad general similarity to the range of awards in personal injury cases.

d. Tribunals should bear in mind the value of the sum in everyday life.

e. There is a need for public respect in the level of awards made.

[31]The injury must be caused by the discrimination. In cases where the injury was caused by multiple sources, the Tribunal must consider whether the injury caused by the discrimination / detriment is divisible. As Lord Phillips of Worth Maltravers stated in Sienkiewicz v Greif (UK) Ltd

[2011] 2 AC 229

(at paragraph 90): “where the disease is indivisible…a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible…the tortfeasor will be liable in respect of the share of the disease for which he is responsible”. If the injury can be apportioned, this should be done.

[32]In accordance with Essa v Laing Ltd

2004 ICR 746

, CA, the Tribunal must be satisfied that the injury for which it compensates was caused by the discrimination, and not the non discriminatory acts of the respondent or other matters.

[33]However, the “eggshell skull” principle also applies to awards for injury to feelings: the victim must be taken as they are found (Olayemi v Athena Medical Centre and Another

[2016] ICR 1074

). Therefore, a respondent cannot avoid liability on the basis that the claimant would not have had such an injury had they not already been vulnerable.

[34]In some cases, aggravated damages may form part of the award for injury to feelings. There are three gateway conditions for such an award, namely the manner in which discrimination was committed, the motive of the discriminator and the discriminator’s subsequent conduct (Commissioner of Police of the Metropolis v Shaw

UKEAT/0125/11/ZT

). The Tribunal should consider whether the respondent’s conduct aggravated the injury so as to justify additional compensation being awarded: it is not in itself compensation for the manner of the conduct but rather that that conduct caused further injury.

[35]Tribunals may also award damages for personal injury arising out of discrimination (Sheriff v Klyne Tugs (Lowestoft) Ltd

[1999] IRLR 481

). The level of damages in personal injury cases is found in the Judicial College Guidelines, 17th edition.

[36]A global approach can be taken where there are multiple acts of discrimination / detriment (ICTS (UK) Ltd v Tchoula

[2000] IRLR 643

). However, the Tribunal must ensure that there is no “double counting” and should look at the total award to make sure that it is proportionate (Ministry of Defence v Cannock, above).

[37]Where there has been an unreasonable breach of the code of practice on disciplinary and grievance procedures, an uplift or reduction in compensation of up to 25% may be made unless it would be unjust to do so (section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992). This applies to both injury to feelings and to financial loss. As held in Slade and another v Biggs and others EA-2019-000687-VP, The Tribunal should consider:a. Is the case such that it is just and equitable to award any uplift?

b. If so, what does the Tribunal consider to be a just and equitable percentage (up to 25%)?

c. Does the uplift overlap, or potentially overlap, with other general awards such as injury to feelings and if so how should the uplift be adjusted to avoid double-counting?

d. Applying a final sense-check, is the sum of money represented by the application of the uplift disproportionate and, if so, how should it be adjusted?

[38]Interest is payable on discrimination awards. For injury to feelings, this is calculated for the entirety of the period between the discrimination and the calculation date. For other types of compensation, the period starts with the mid-point, being half way through that period.

[39]In respect of unauthorised deductions from wages, section 24 of the Employment Rights Act 1996 provides that, where an employer has found a complaint of unauthorised deductions from wages to be well-founded, it shall make a declaration to that effect and shall order the employer to pay to the worker the amount of any deduction made. Conclusions Discrimination / Detriment

Conclusions

[40]We consider both the discrimination and the detriments together as they are so intertwined. What financial losses has the discrimination / detriment caused the claimant?

[41]This relates to the following matters:a. The removal of the RS appointments;

b. The removal of the SM appointments;

c. The removal of the claimant’s shift on 15 March 2023;

d. Failure to pay the claimant for attending ante-natal appointments on 27 February 2023 and 24 April 2023. The removal of the RS appointments

[42]We found that the appointments (known as “sit calls” or “sits”) with RS were removed from the claimant from 9 December 2022. We also found that, from 17 March 2023, the claimant was no longer given any work by the respondent for reasons which we did not find to be discriminatory / detriment due to pregnancy, maternity or childbirth. Therefore, the duration of the financial losses in respect of this allegation run from 9 December 2022 to 17 March 2023.

[43]We also found that, prior to the discrimination / detriment, it had been agreed that the claimant would have the RS sits on Mondays and Wednesdays (paragraph 36 of our Reserved Judgment and Reasons on liability).

[44]On reviewing the rotas for RS, we can see that there were three appointments with him on the vast majority of Mondays and Wednesdays. Looking at the period prior to 9 December 2022, the claimant would do the longer five hour sit, and on average would also do one of the two shorter appointments with him on that day. Whilst it appeared that the rota’d time slot would not exactly match the time spent with the client in each case, we are satisfied that overall the rota’d time is the appropriate time allocation to use in our calculations (the respondent did not say that it was not and said that the discrepancy may relate to travel time).

[45]Therefore, we conclude that the claimant would have had twelve hours of shifts with RS in total in each week between 9 December 2022 and 17 March 2023 split equally between Mondays and Wednesdays, save for any periods in which she would have been absent from work or any days on which RS did not in fact have the three appointments. In addition, we must give credit for any Mondays and Wednesdays in which she in fact did other work (as she could not have been in two places at once).

[46]One challenge we have we this calculation is that it is impossible to know with one hundred percent accuracy exactly how her shift would have been split up had she had the RS shift, or exactly how many hours of work she would have had in each day. We also bear in mind that it is not simply a question of discounting the work that was carried out by the claimant during the hours when she would otherwise have had the RS sit, as her “run” (i.e. the chain of appointments) would presumably have been calculated differently. The Tribunal has reviewed the rotas for the period immediately prior to the discrimination and can see that the number of hours carried out by the claimant on Monday and Wednesdays is variable, but generally in the region of 9.5 to 13 hour days (i.e. fairly long working days). The majority of her Mondays and Wednesdays were in excess of 9.5 hours and often 13 hour days or close to it. We also take into account that by this time the claimant had also asked to be removed from KL’s call and therefore her shift run might have been slightly shorter for that reason. In addition, from 19 January 2023 the claimant asked to start work slightly later so as to manage her blood sugar levels (see paragraph 102 of the Reserved Judgment dated 30 January 2025).

[47]Taking all of this into account, we have calculated the financial losses with the best accuracy that we reasonably can in the circumstances. Where the claimant worked more than 10 hours in a given day prior to 19 January 2023, or 9 hours in a given day from 19 January 2023 onwards, we have taken the view that this in reality represents a full day’s work (albeit we recognise that there were days on which she worked longer shifts, but equally there were some where fewer hours were worked) and have not awarded any additional pay.

[48]In respect of this we find as follows:a. The claimant was on annual leave until 11 December 2022, and therefore would not have any shifts with RS between 9 and 11 December 2022 (paragraph 57 of the Reserved Judgment)

b. On 12 December 2022 (a Monday) the claimant worked for 5.5 hours before going off sick. We find that, given that she worked effectively all morning and then was off sick, she would not have been able to do the RS sit call that day in any event.

c. The claimant was then off sick until 27 December 2022. The first available date on which she could carry out the RS sit was therefore Wednesday 28 December 2022. This was a day on which the claimant had not been added back into the rota, and we concluded in our Reserved Judgment (at paragraph 232) that this was simply because the respondent had not got round to dealing with her email yet. Therefore, even if the RS sit had not been removed, she would not have done his sit on that day and therefore we make no award in respect of that date.

d. The next date on which the claimant might otherwise have had the RS sit was Monday 2 January 2023. The claimant did work on that date. According to her rota (page 533) she worked 9 hours and 45 minutes on that day. We have therefore awarded her 15 minutes pay.

e. In relation to Wednesday 4 January 2023, it appears from the rota that the claimant was not provided with any work on that date, whereas Mr Khan spent 7 hours with RS. We award her 6 hours’ pay (based on our finding that she would have been given the sit call of 5 hours and one of the two other one hour calls).

f. On Monday 9 January 2023, the claimant did do a one hour appointment with RS. She was not given the 5 hour sit call and we conclude that would otherwise have been provided to her (page 584). However, she did have other appointments that day, totalling 8.25 hours (in addition to the RS appointment that she did do), making a total of 9.25 hours. We therefore award 45 minutes pay.

g. On Wednesday 11 January 2023, the claimant worked for 11.5 hours. She could not realistically have also carried out the RS sit calls. No award is made.

h. On Monday 16 January 2023 the claimant worked for 10 hours and 45 minutes. That is a full day’s work and therefore she could not have worked the RS sits as well. No award is made.

i. On Wednesday 18 January 2023 the claimant did not work due to the weather conditions (paragraph 100 of the Reserved Judgment). No award is made.

j. On Monday 23 January 2023 the claimant worked 8.5 hours (545). We therefore award 30 minutes pay.

k. On Wednesday 25 January 2023 the claimant worked 9.5 hours. No award is therefore made to her.

l. On Monday 30 January 2023 the claimant attended an antenatal appointment and did not work. This therefore does not relate to the removal of the RS sit call and so no award is made.

m. On Wednesday 1 February 2023 the claimant worked 9.5 hours. (page 549). No award is therefore made.

n. On Monday 6 February 2023 the claimant worked 9 hours (page 551). No award is therefore made.

o. On Wednesday 8 February 2023 the claimant worked 9.5 hours (page 552). No award is therefore made.

p. On Monday 13 February 2023 the claimant worked 9.25 hours (page 558). No award is therefore made.

q. On Wednesday 15 February 2023 the claimant worked 7.75 hours (page 560). RS had 7 hours worth of visits on that date (page 588) from other staff. We therefore award 1.25 hours’ pay.

r. On Monday 20 February 2023 the claimant was not provided with any work (page 562), nor was she provided with work on the Tuesday or Wednesday of that week. However, we can see from the claimant’s February 2023 payslip (page 8 of the respondent’s additional disclosure document at the liability hearing) that the claimant was paid some holiday pay in respect of February 2023 and in her Schedule of Loss she says that these were annual leave. We find that this was a period of holiday and therefore make no award.

s. On Monday 27 February 2023 the claimant had a scan. She carried out 4 hours of work (page 565) and we find that, due to the scan, she would not have been able to do the RS sit. In her original request for time off (page 152 of the liability hearing bundle) she had stated that she would only be able to work the morning on that day. We have addressed time off for ante-natal appointments separately, but we make no separate award in relation to the removal of the RS sit on that day.

t. On Wednesday 1 March 2023 the claimant worked for 8 hours (page 567). On that date however RS only had appointments at 10.05 to 11.05 and from 18.20 to 19.20 (i.e. 2 hours in total) (page 589). These clashed with other work the claimant was rota’d to do and therefore she could not have worked these appointments and no award is made.

u. On Monday 6 March 2023 the claimant worked for 7.75 hours (page 569). On that date RS had 7 hours worth of appointments (page 589) and we therefore award 1.25 hours’ pay.

v. On Wednesday 8 March 2023 the claimant worked 7.25 hours (page 571). However, RS only had 2 hours of appointments on that date, from 9.30 to 10.30am and from 6.35 to 7.35pm (page 590). The first appointment clashed with other work that the claimant carried out but we conclude that she could have undertaken the second appointment. The claimant is awarded one hour’s pay.

w. On Monday 13 March 2023 it is clear that the claimant worked (page 155 of the liability bundle is an email from the claimant to the respondent about her work on that day). However, the rotas which we have been provided with end on 12 March 2023 and therefore we have no certainty about exactly what hours were worked on that day. The claimant has not shown that she suffered any losses on that date and no award is made.

x. We also do not have the rota for Wednesday 15 March 2023 although we do know (paragraph 132 of the Reserved Judgment) that the claimant had a risk assessment on that date for which she was not paid. This is addressed separately in relation to our finding in relation to the removal of her hours on 15 March 2023.

y. Thereafter the claimant was removed from the rota more generally for non discriminatory reasons and so no further award is made to the claimant.

[49]In total therefore, we award the claimant 11 hours’ pay in respect of the RS appointments. At a rate of £9.90 per hour, we therefore award the claimant £9.90 x 11 which equals £109.90 gross in respect of the RS appointments.

[50]In addition, the claimant seeks mileage costs in relation to the removal of the RS appointments. She accepts that mileage is not normally payable to her, however she submits that it forms part of her losses on the basis that, if she had had the RS appointments, then the 5 hour appointment was a lengthy one without the need for travel during that time, whereas the other appointments she did have were shorter and scattered around and therefore necessitated increased travel.

[51]We accept the principle that there are some financial losses due to this increased mileage. However, we consider the amount in the claimant’s schedule of loss (page 78 of the claimant’s file for this hearing) to be excessive. First, it estimates that she did 2 calls in one hour: whilst sometimes she did, some of her calls were one hour or 45 minutes long. This also estimates 17 days of loss: the Tribunal finds that there were 12 days on which increased fuel was used (paragraphs 41d, f, g, h, j, k, m, n, o, p, q and u above). We consider that, on average, the claimant would only have carried out 8 calls in lieu of the RS appointments on those dates on which she would otherwise have had 6 hours of appointments with him. The RS appointments would however constitute two calls with their own travel time. We therefore award travel between 6 calls on 12 occasions. At 45p per mile, 2 miles per call, this amounts to 72 x 2 x 0.45 which equates to £64.80. We award this sum to the claimant. The removal of the SM appointments

[52]This is also complex to calculate, both because it appears from the documents provided to us for the remedy hearing that there was a tapering down (rather than instant removal) of the appointments in question, and also because the SM appointments were more ad hoc in any event and therefore we cannot say with certainty exactly which appointments the claimant would have had. Again, the relevant time period must finish at 17 March 2023 for the same reasons as for RS.

[53]We conclude that, if the claimant had had the RS sits on Monday and Wednesdays, she would not also have done the SM daytime appointments on the same day. We therefore make no award in respect of Monday and Wednesdays. We accept the respondent’s submission that in reality this relates only to Tuesdays in respect of daytimes. We do however also note that there were SM appointments at around 5.30 to 6pm in the evenings, and one of RS’ appointments was around 7.10-7.30pm and so theoretically the claimant could have squeezed SM in before going back to RS (see for example page 575). However, in reality we do not conclude that she necessarily would have done so.

[54]On reviewing the rotas during the period in which the claimant did attend appointments with SM, we noted that the claimant did not have a significant number of appointments with SM generally and also that the individual appointments with SM were only one hour long (as opposed to the five hour sit with RS). Again, we must also bear in mind that if the claimant had an appointment with SM, she could not then have another appointment at the same time with another client, and therefore if she did work for another client, that time must be discounted.

[55]During the hearing, the respondent provided a table setting out the times at which it says the claimant did other work anyway and therefore could not have visited SM. We have crossed checked this against the rotas for the claimant and SM as follows:a. 3 January 2023 : SM had two visits, between 1.30 and 2.30pm (page 597), and between 5.10 and 6.10pm. The claimant finished work at 2pm (page 535) and we conclude that she would not therefore have done the later appointment. The earlier one clashed with a separate appointment of half an hour duration with another client. Therefore, had the SM appointments not been removed, on balance of probabilities we find that she would have had a one hour appointment with SM instead of a half hour appointment with the other client. She has losses of half an hour.

b. 10 January 2023: again SM had two visits, of one hour duration each (page 598). The claimant’s shift ended at 2.35pm (537) and so again we find that she would not have done the late afternoon appointment. The lunchtime appointment clashed with the end of one other appointment and the start of another (which together made up one hour), and so we find that the claimant suffered no financial loss.

c. 17 January 2023: again SM had two visits of one hour each (page 598), one at lunchtime and one late afternoon. On this occasion the claimant was only provided with work until 11.30am (page 542) and therefore we conclude that she would otherwise have taken the earlier SM appointment (but not the later one). She has losses of one hour.

d. 24 January 2023: again SM had two visits of one hour each, one at lunchtime and one late afternoon (page 598). On this occasion the claimant worked until 1.35pm. Her final appointment was half an hour long (page 546) and we find that if she had the SM appointment she would not also have had that other appointment as there would be insufficient time to travel between the two. We find therefore that she has losses of half an hour.

e. 14 February 2023: On 14 February 2023 the claimant worked a full day and looking at her appointments (page 560) and taking into account the time she would need between each appointment we do not conclude that she suffered no financial loss by not having SM’s appointments as she would have needed to have fewer other appointments in that event.

f. 28 February 2023: the position is similar to that of 14 February 2023 (page 565) and we conclude that there was no financial loss.

g. 7 March 2023: the position is similar to that of 14 February 2023 (page 570) and we conclude that there was no financial loss.

[56]In total we therefore award the claimant two hours’ pay in relation to the removal of the SM shifts. At £9.90 per hour gross we therefore award £19.80 gross. The removal of the claimant’s shift on 15 March 2023

[57]In the claimant’s Schedule of Loss (page 78 of the claimant’s hearing file for this remedy hearing), the claimant seeks 6.25 hours’ pay in respect of this date, based on that being what she had worked the previous Wednesday 8 March 2023. However, having reviewed the hours worked on 8 March 2023, this was in fact 7.25 hours according to the rota (page 571) and we have awarded an additional one hour’s pay in respect of the RS shift. Therefore, whilst we have used the approach suggested by the claimant, that figure should actually be 8.25 hours. We therefore award 8.25 hours’ pay to the claimant. At £9.90 per hour gross this therefore equates to £9.90 x 8.25 which equals £81.68 gross. Failure to pay the claimant for attending ante-natal appointments on 27 February 2023 and 24 April 2023

[58]We limit our conclusions to these two ante-natal appointments, as these were the only ones set out in the agreed List of Issues.

[59]Both the claimant’s schedule of loss and the respondent’s counter schedule of loss (not included in the hearing file, but submitted to the Tribunal separately) state the loss in respect of 27 February 2023 to be 1.5 hours’ pay and therefore we accept this calculation. We award the claimant 1.5 hours’ pay, amounting to £9.90 x 1.5 which equals £14.85 gross.

[60]Neither the claimant nor the respondent have included 24 April 2023 specifically in the schedule of loss. We have found that statutory sick pay (“SSP”) would have been payable to her in respect of this period (paragraph 222 of the Reserved Judgment dated 30 January 2026). We have however separately calculated the amount of statutory sick pay due to the claimant below in respect of her whole sickness absence period and it would amount to double recovery to also award her additional statutory sick pay here separately, as we have awarded the statutory maximum already. Adjustments to Statutory Maternity Pay

[61]An added complication in this case is that some of the claimant’s financial losses coincided with the 8 week period prior to the qualifying week in her pregnancy, therefore affecting the amount of maternity pay that she later received. We must therefore also calculate the financial losses arising out of this. In her Schedule of Loss the claimant calculates this as being £783.38 but this is based on a far higher number of hours lost in respect of RS and SM’s calls and therefore we must recalculate it. The respondent’s figure is £55.52, on the basis that the claimant’s figures were wrong and also that she was paid the statutory maximum.

[62]We have been provided with an SMP report in respect of the claimant (page 323). This confirms that the 8 week period used to calculate statutory maternity pay was 4 February 2023 to 31 March 2023.

[63]Statutory Maternity Pay is 90% of average weekly earnings for the first six weeks, and thereafter it is the statutory rate. The claimant received the maximum statutory maternity pay after the first six weeks and therefore we need only re-calculate in respect of that six week initial period.

[64]Between 4 February 2023 and 31 March 2023 we have awarded the claimant as follows:a. 15 February 2023: 1.25 hours (RS sit call)

b. 27 February 2023: 1.5 hours (antenatal appointment)

c. 6 March 2023: 1.25 hours (RS sit call)

d. 8 March 2023: 1 hour (RS sit call)

e. 15 March 2023: 8.25 hours (shift not worked)

[65]This totals 13.25 hours. Over the 8 weeks the SMP information that we have been provided with shows that the respondent calculated her average weekly earnings to be £284.64, resulting in her receiving £256.18 per week (90% of the average weekly earnings) in that first six week period.

[66]Multiplying the respondent’s average weekly earnings by 8 (as it is calculated over an 8 week period), this gives total earnings used in the calculation of £2,277.12. We must add to that the missing hours: 13.25 x £9.90 which equates to £131.18. This means that the total earnings over the 8 week period should in fact have been £2,408.30. We then divide this by 8 to give the actual average weekly earnings that should have been used in the calculation, amounting to £301.04. 90% of that sum is £270.94. As she was paid £256.18 per week (page 323), this leaves a shortfall of £14.76, which over a 6 week period equates to a total loss of £88.56 gross which we award to the claimant. Ongoing financial losses

[67]In our Reserved Judgment dated 30 January 2025 we found that the removal of the claimant’s shifts from 17 March 2023 was not discriminatory nor was it a detriment for which the respondent was liable. Therefore, other than as set out above in relation to the calculation of statutory maternity pay, and below in relation to the calculation of statutory sick pay, we make no award in respect of ongoing financial losses, on the basis that they do not flow from the discrimination / detriment. Likewise, there is therefore no reduction in compensation to reflect any universal credit housing or childcare element (which was included by the respondent in its counter schedule of loss), on the basis that there is no award for ongoing financial losses in any event. Total financial losses

[68]Therefore, the gross financial losses in respect of the discrimination / detriment complaints, are:a. £109.90 in respect of the RS appointments;

b. £64.80 in respect of fuel (in relation to the RS appointments);

c. £19.80 in respect of the SM appointments;

d. £81.68 in respect of 15 March 2023;

e. £14.85 in respect of 27 February 2023 ante-natal appointment; and

f. £88.56 in respect of re-calculation of Statutory Maternity Pay.

[69]This results in a total award for financial losses arising from discrimination / detriment of £379.59 gross. We recognise that the purpose of the award is to put the claimant back in the position she would have been in had the discrimination / detriment not occurred, and therefore this amount would be subject to income tax. As it is not possible with the information that the Tribunal has to calculate what income tax may be due on this sum, the claimant will need to account to HMRC for any tax due herself. Has the respondent proven that the claimant failed to take reasonable steps to replace any lost earnings, such as by failing to take reasonable steps to find another job? For what period of loss should the claimant be compensated?

[70]No award is made in respect of these matters on the basis that we have not awarded losses in relation to the period after 17 March 2023 (save in relation to statutory maternity pay and statutory sick pay). In relation to the award we have made in respect of financial losses, they are not losses that the claimant could reasonably have replaced elsewhere (and to the extent that she could, she did so in accepting appointments with other clients for which credit has already been given). What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? Should the claimant be awarded aggravated damages and how much compensation should be awarded for that?

[71]In considering the appropriate award for injury to feelings, we have focused on the injury suffered by the claimant, rather than the respondent’s wrongdoing.

[72]We conclude that it is clear to us that the claimant has suffered ill health. We have seen evidence that she has a mixed anxiety and depressive disorder, and the medical notes (although postdating the relevant period) record her low mood and the fact that she was not enjoying things as much. We have found that she stopped doing the school run and walking the dog as she could not face going out. She slept with the light on and had nightmares. We also found that she felt stressed during her pregnancy and that this had an impact on her enjoyment of that pregnancy, something which she can never get back. We also note that her previous two pregnancies went without issue and therefore we conclude that it was what happened to her during her third pregnancy which caused that stress (and not for example some pre-disposition to mental health issues during pregnancy). Her partner had to take over much of the childcare, their relationship became more strained and she became snappy. During the liability hearing, she smashed her daughter’s cot.

[73]We recognise that the financial losses suffered by the claimant due to the discrimination are not significant (as outlined above) and that after SM and RS were removed she was given other work which overlapped with the times she might otherwise have worked for those clients. However, we nonetheless consider that the mental impact of feeling that those clients had been removed from her, particularly when they were clients that she both enjoyed and felt were particularly suited to her pregnancy needs (see paragraph 217 and 226(c) of the Reserved Judgment dated 30 January 2025), was particularly distressing for her.

[74]That said, we also note that the claimant refused CBT initially, which might have aided her recovery. Whilst the Tribunal accepts to some extent her explanation that she had a new baby at the time and was caught up trying to deal with that, we consider that if her symptoms had a very significant impact on her then she would have asked for help earlier than March 2024. We also bear in mind that litigation is inherently stressful, as is having a baby and relocating to a new town. We also saw evidence referring to her feeling isolated.

[75]Overall, however it is clear to the Tribunal that the claimant’s mental health suffered between early on in her pregnancy and the present day, although it is also clear that her health is now improving and she feels about to think about moving forward with her life.

[76]In addition, we bear in mind that the claimant’s ill health was not solely caused by the discrimination and/or detriment in respect of which the claimant succeeded at the liability hearing. In addition to the other matters referenced above such as her isolation and relocation, there was other conduct of the respondent which, whilst potentially damaging to the claimant, was not found to be discriminatory or a detriment because of pregnancy, childbirth or maternity. The injury therefore has multiple sources and we must compensate only the discrimination and detriment which succeeded at the liability hearing. For example, we did not find that it was discriminatory to inform the claimant that she needed to do shifts in Sutton if she wanted more shifts from 20 March 2023.

[77]We conclude that the injury, whilst having multiple sources, is nevertheless divisible. We also conclude that it is appropriate to make a global award for the injury to feelings which was suffered as a result of the discrimination and/or detriments which succeeded, as they are linked, and to make one combined award covering both the discrimination and detriments.

[78]In calculating the value of injury to feelings, we have referred to the Judicial College Guidelines, 17th edition. There is a section on psychiatric damage to which we have had regard. The categories are:a. Severe: £66,920 to £141,240

b. Moderately severe: £23,270 to £66,920

c. Moderate: £7,150 to £23,270

d. Less severe: £1,880 to £7,150

[79]Here, we note that the claimant now has a good prognosis and therefore we do not consider that this would fall within moderately severe or severe. We consider that the claimant’s level of injury would fall within the moderate range, noting that the guidelines recognise that in those cases the prognosis would be good and that work-related stress may fall within this category.

[80]We also recognise as outlined above that not all of the injury is attributable to the successful complaints, but also that the injury goes beyond psychiatric damage and includes other matters such as the lack of enjoyment of her pregnancy.

[81]We also have regard to Vento and the three bands of £1,100 to £11,200 for the lower band cases, £11,200 to £33,700 for the middle band, and £33,700 to £56,200 for the upper band. We recognise that the key factor is not the conduct of the employer in itself, but rather to compensate for the injury. However the level of seriousness of the conduct does go some way to explaining the likely nature of the injury.

[82]We consider that the appropriate award for injury to feelings would fall within the middle Vento band. This includes consideration of both the claimant’s ill health and the injury to her feelings more generally. We reach this conclusion noting that it was not a one off event, and it caused injury of such severity that we have decided an award in the lower band is not appropriate. Equally, however, it did not cause such significant injury that it should fall in the higher band, and we also take into account that the respondent did not cause the entirety of the injury and also that some of the injury was caused by the non-discriminatory treatment. That said, we consider the discrimination / detriment did form a substantial part of the injury, noting in particular that the removal of the RS shifts appears to have been the starting point from which all of the subsequent treatment followed (both discriminatory and non-discriminatory).

[83]We have also considered whether to make an award of aggravated damages within the award for injury to feelings. In this regard the claimant has relied on the following:a. The respondent making things more challenging than needed throughout the process;

b. The respondent accusing the claimant of bringing her claim for financial gain and thus not understanding the severity of the issue;

c. Continuing to deny discrimination at the remedy hearing despite the Tribunal’s previous findings and conclusions (referring to Mr Owusu-Ansah’s witness statement);

d. Not complying with case management orders;

e. Copying and pasting signatures; and

f. Generally disrespecting the proceedings (relying on criticism that the respondent received from the Tribunal in that regard).

[84]We do not consider that the procedural irregularities warrant an award for aggravated damages. Whilst no doubt frustrating for the claimant, aggravated damages are not awarded lightly and we do not consider the threshold to have been met. Likewise the respondent’s conduct in the proceedings more generally, whilst not what the Tribunal would ordinarily expect from a respondent, has not reached the threshold for aggravated damages.

[85]However, the issue of copying and pasting signatures specifically in relation to the claimant’s purported appraisal has met that threshold. In our conclusions on liability (at paragraphs 92 to 98 of the Reserved Judgment and Reasons on liability) we found on balance of probabilities that there was no appraisal. The respondent had relied throughout the proceedings on the content of that appraisal and specific comments within it that the claimant was alleged to have made at the appraisal which were damaging to her case. Having found that the appraisal did not happen, it follows that those comments were not made. Those comments included comments about her reduction in hours that related specifically to matters which we have found to be discriminatory. We also found that the claimant’s purported signature on the document was not a signature that she had provided at the relevant time and that it had been copied from another document (to give the impression that the claimant had signed it).

[86]Aggravated damages are not to punish the employer for improper conduct, they are to compensate the employee for the increased injury caused through the conduct. In this case, the claimant was faced with having to defend a Tribunal claim that relied on false documentation and had to take additional steps to disprove the authenticity of a document that, on the face of it, appeared to be contemporaneous and damaging to her case. She had to rely on additional documentary evidence which she referred the Tribunal to in order to show how her signature had been copied and pasted across. Even at the remedy hearing, despite a finding from this Tribunal that there was no appraisal, Mr Owusu-Ansah in his witness statement sought to rely on that appraisal (at paragraph 12 of his witness statement for this remedy hearing).

[87]We conclude that these things did aggravate the level of injury suffered by the claimant, both through the manner of the discrimination (i.e. falsification of documentation in order to purport to justify the discriminatory treatment) and the subsequent conduct of the respondent (continuing to defend the claim based on the falsified document, both at the liability and remedy hearings). Notwithstanding the fact that aggravated damages are not routinely awarded, we have decided that £2,000 should be awarded in this regard.

[88]Overall, in relation to injury to feelings we award £20,500, of which £2,000 are aggravated damages (and therefore the award would be £18,500 exclusive of the aggravated damages element). We consider that this recognises the level of injury caused, whilst also recognising that not all of the injury was caused by the discrimination / detriment. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

[89]We have referred to the claimant’s ill health in our above conclusions on injury to feelings. We conclude that, because the claimant’s asserted personal injury is so intertwined with her injury to feelings, there should be no separate award for personal injury – to the extent relevant to do so, her personal injury has already been factored into the level of award made for injury to feelings. In addition, the medical evidence relating to the relevant period is insufficient to assess with any specificity what personal injury has been caused by the respondent’s discrimination / detriment as opposed to anything else for which the respondent has not been found to be liable. Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

[90]We have not found there to be a causal link between the level of injury and the fact that the claimant did not have any more shifts after March 2023. In those circumstances the compensation does not need to be adjusted to reflect the prospects that the employment would have ended anyway, as the compensation awarded was for unrelated matters. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Did the respondent unreasonably fail to comply with it by failing to treat the claimant’s email of 4 May 2023 (para 146 of reserved judgment) as a grievance? Did the claimant unreasonably fail to comply with it by failing to submit a grievance on or around 4 May 2023? If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

[91]We make no reduction to the compensation awarded in respect of any alleged failure by the claimant to raise a grievance: in our liability findings (paragraph 146 of the Reserved Judgment dated 30 January 2025) we found that the claimant’s email dated 4 May 2023 would amount to a grievance (albeit the word grievance was not used in it). The claimant did not unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

[92]In relation to the respondent’s alleged failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, the claimant relies on the fact that the respondent did not deal with the claimant’s email dated 4 May 2023. We found that it should have (paragraph 146 of the Reserved Judgment dated 30 January 2025). In considering the respondent’s actions, we take on board that the claimant did not expressly refer to the email as a grievance, and also that the respondent does not have a legal or HR department of its own, being a relatively small employer.

[93]However, in his evidence Mr Osusu-Ansah recognised himself he would have expected the respondent to have responded and dealt with the email, which did not happen. Even without HR or employment law expertise, the email was self-explanatory in the sense that it was a complaint being raised by the claimant about the way she was being treated. Any employer should have appreciated that such an email deserved a response. Not only did the respondent not treat it as a formal grievance, they did not address it.

[94]In those circumstances, we conclude that the respondent’s failure was unreasonable, and it would be just and equitable for there to be an uplift in compensation. However, we do not consider that it should be the full 25% given the respondent’s small size, lack of internal HR support and the fact that the complaint was not explicitly referenced as a grievance. In those circumstances we have concluded that the just and equitable percentage would be 10%.

[95]We have considered whether there is a risk of double recovery in relation to our earlier conclusions, in particular in relation to aggravated damages. However, we do not consider that there is overlap with our earlier conclusions on injury to feelings (including aggravated damages) as the failure to deal with the claimant’s complaint did not feature in our assessment of her injury for those purposes.

[96]Therefore, the claimant is awarded the following uplift to compensation:a. Financial losses: 10% of £379.59 = £37.96

b. Injury to Feelings (including aggravated damages): 10% of £20,500 = £2,050 Total Award Inclusive of ACAS Uplift

[97]Therefore, the total award made to the claimant inclusive of ACAS uplift for both financial and non-financial losses (but exclusive of interest) are:a. Financial losses: £379.59 + £37.96 = £417.55

b. Injury to Feelings (including aggravated damages): £20,500 + £2,050 = £22,550 Interest

[98]We consider it appropriate to award interest on the compensation. We invited both parties to make submissions as to the rate of interest that we should apply. Neither party put forward any basis upon which they submitted the Tribunal should depart from the 8% judgment rate and we have decided to apply that rate.

[99]For the purposes of calculating interest, we do not consider it to be appropriate to try to separate out the award into different dates of discrimination and consider that it should all flow from the start of the discriminatory period. This was 9 December 2022 (when RS was first removed from the claimant’s rota). The calculation date is the date of this judgment.

[100]Interest in respect of injury to feelings is calculated for the period between the discrimination (9 December 2022) and the calculation date (28 January 2026). For financial losses, interest accrues from the mid-point.

[101]Between 9 December 2022 and 28 January 2026 are 1,146 days. Therefore we calculate interest as follows:a. Financial losses: 573 days x 0.08 x 1/365 x £417.55 = £55.44

b. Injury to Feelings (including aggravated damages): 1,146 days x 0.08 x 1/365 x £22,550 = £5,664.07 Proportionality and Total Award

[102]Finally, we take a step back and look at it in the round. We consider that this is a proportionate level of award, taking into account all the circumstances.

[103]Therefore, the total award made to the claimant in respect of discrimination / detriment is:a. Financial Losses: 417.55 + £55.44 = £472.99

b. Injury to Feelings including Aggravated Damages: £22,550 + £5,664.07 = £28,214.07 Unauthorised Deductions from Wages Not paying the claimant for a day of leave taken to attend an antenatal appointment, following her email of 7 February 2023

[104]The claimant has already been compensated for this in respect of her discrimination / detriment complaints and we do not therefore make any further award to her. Failure to pay the correct amount of SSP for the period from 23 March 2023 to 31 May 2023

[105]The claimant’s Schedule of Loss claims loss of SSP for the period 21 May 2023 to 31 May 2023 at £109.40 (and the respondent has said that they do not dispute this sum). However, the claimant’s claim form made clear that the alleged underpayment of SSP related to the period throughout her absence. In addition, our Reserved Judgment dated 30 January 2025 concluded that there was an unlawful deduction from wages in respect of SSP over a longer period, including April and May more generally (paragraphs 224 and 262 of that Reserved Judgment). We consider that the claimant has omitted to include the period prior to 21 May on her Schedule of Loss (having selected that date because there was a separate issue in relation to whether the last week of May was sick leave or holiday).

[106]In the absence of specific information about the claimant’s Statutory Sick Pay rates, we consider that the most appropriate calculation to use for this purpose is the average weekly earnings used for maternity pay purposes (page 323) which amounted to £284.64, or would have amounted to £301.04 if the discrimination had not occurred. In either case, this is over the minimum threshold for SSP and therefore the full rate of SSP would have been payable to her, which at that time was £109.40 per week. The claimant’s first day of sick leave was 24 March 2023: allowing for the 4 day waiting period the first day in respect of which SSP was due to her was therefore 30 March 2023. Her absence then continued for a period of 9 weeks exactly. Therefore the total statutory sick pay due to her would have been 9 x £109.40 which equals £984.60. The claimant was in fact paid £184.86 in respect of statutory sick pay during that period (all in respect of April 2023 – see paragraph 224 of the Reserved Judgment dated 30 January 2025) and therefore the total awarded to the claimant is £984.60 - £184.86 which equals £799.74 gross.

[107]For the same reasons as outlined above in relation to the claimant’s other complaints, we apply a 10% increase in compensation to reflect the respondent’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, meaning that the total awarded for unauthorised deductions from wages is £879.71 gross. Compensation for unauthorised deductions from wages do not attract interest and therefore no interest is awarded on this sum. Approved by: Employment Judge Edmonds 28 January 2026 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-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. 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/