Lauren De Lacey v Wechseln Ltd T/a the Andrew Hill Salon: 1400945/2017

EMPLOYMENT TRIBUNALS

Case No 1400945/2017

Between

Lauren De LaceyClaimant

Mr J Allsop, Counsel Mr D Leach (participant) Mr M Lee, CounselRespondent

Before

Employment Judge Goraj

Members

Mrs S Richards

Mr TJ McAuliffe

Mr J Allsop (instructed by Counsel) for respondent

Date 10 November 2021

JUDGMENT

ON APPLICATION BY THE CLAIMANT DATED 22 JUNE 2018 FOR PART RECONSIDERATION OF JUDGMENT ISSUED ON 8 JUNE 2018 The unanimous judgment of the Tribunal is that: - The claimant has failed to establish the allegations at paragraphs 6 (a) and (b) of the Tribunal’s letter dated 3 January 2019. The majority judgment of the Tribunal is that: - The claimant has also failed to establish the allegations at paragraph 6 (c) of the Tribunal’s letter dated 3 January 2019. The minority judgment of the Tribunal (which is attached at Annexe A) is that: - The claimant has established the allegations at paragraph 6 (c) of the Tribunal’s letter dated 3 January 2019.

REASONS

The Law

[1]By a reserved judgment which was sent to the parties on 8 June 2018 (“the Judgment”), the Tribunal held, in summary, that(a) the claimant had been unfairly (constructively) dismissed by the respondent and

(b) dismissed the claimant’s complaints of pregnancy/maternity/sex discrimination against the respondent.

[2]The claimant subsequently presented an application dated 22 June 2018 for the reconsideration of the dismissal of the discrimination elements of the Judgment (“the application dated 22 June 2018”) pursuant to Rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations dated 2013 (“the 2013 Rules). The application dated 22 June 2018 was only allowed to proceed to the limited extent identified at paragraph 6 of the Tribunal’s letter dated 3 January 2019 (“the letter dated 3 January 2019”) (pages 199-202 of the bundle). The remaining elements of the application dated 22 June 2018 were dismissed by the Tribunal as it was satisfied that there was no reasonable prospect of the issues raised resulting in the Judgment being varied or revoked for the reasons stated at paragraph 8 of the letter dated 3 January 2019

[3]Mr D Leach, the respondent’s Counsel at the liability hearing in April 2018, made a subsequent application to participate in these proceedings pursuant to Rule 35 of the 2013 Rules. This was granted by the Tribunal on 4 June 2019 in the light of the potentially very serious allegations of professional misconduct which were made against him in the application dated 22 June 2018 (page 212 of the bundle). Mr Leach’s participation in these proceedings is limited to his defence of the allegations against him identified at paragraph 6 of the letter dated 3 January 2019 and related matters.

[4]The claimant made related complaints to(a) the police

(b) the Solicitors Regulation Authority (“the SRA”) in respect of the alleged professional misconduct of the respondent’s solicitor at the relevant time, Mr J Osborne, and

(c) to the Bar Standards Board (“BSB”) in respect of the alleged misconduct of Mr Leach. The police have declined to take any further action at this time. The SRA informed Mr Osborne’s firm by letter dated 15 May 2019 that it had closed its file as there was no evidence that they had breached its rules. The investigation of the claimant’s complaint to the BSB is stayed pending the determination by this Tribunal of the allegations against Mr Leach.

[5]The Claimant has also lodged an appeal to the Employment Appeal Tribunal in respect of the dismissal by the Tribunal of the pregnancy/maternity / sex discrimination claims which is also stayed pending the outcome of the application dated 22 June 2018.

[6]The application dated 22 June 2018 has been the subject of 2 case management preliminary hearings including on 19 July 2019. This case was listed for hearing for 3 days on 4, 5 and 6 November 2019 to deal with(a) the application dated 22 June 2018 and

(b) the claimant’s outstanding claim for compensation. The judgment relating to the application dated 22 June 2019 was reserved on 6 November 2019. The bundle and associated documents

[7]The Tribunal was provided with an agreed bundle of documents for use at this reconsideration hearing (“the bundle”). The Tribunal has also had regard, where relevant, to the witness statements and documents which were relied upon at the liability hearing. The written submissions/ skeleton arguments of the parties

[8]The Tribunal was also provided with written skeleton arguments/ submissions by the parties/ the participant (including updated written submissions from the claimant on 6 November 2019) together with various legal authorities and associated guidance. The Tribunal has had regard to the contents of the written and oral submissions of the parties together with the authorities referred to therein insofar as they are relevant to the matters in issue in the claimant’s application dated 22 June 2019. The Tribunal has had regard in particular in respect of the determination of the allegations at paragraph 6 of the letter dated 3 January 2019 to the following authorities/ guidance: - Ladd v Marshall

[1954] 1 WLR 1489

. Flint v Eastern Electricity Board

[1975] IRLR 277

. Stonehill Furniture v Phillippo

[1983] ICR 556

. Wileman v Minilec Engineering Limited

[1988] IRLR144

. In re H (Minors)

[1996] AC 563

. Secretary of State for the Home Department v Rehman

[2003] 1AC 153

. In re D (Secretary of State for Northern Ireland intervening )

[2008] 1WLR 1449

. Foodco UK LLP v Henry Boot Developments Limited [2010] EWHC358(Ch). Newcastle upon Tyne City Council v Marsden

[2010] ICR 743

. SQR Security Solutions v Badu (

UKEAT/0329/15/DA

. Employment Rights Advice Limited v Craig Vernon and Volksmaster Limited (

UKEAT/0082/18/LA

. Phipson on evidence (19th edition) at paragraphs 6-57 – 6-58.

The Law

[9]The Tribunal has reminded itself in particular, that when determining an application for reconsideration a Tribunal is required to have regard to the provisions of Rules 70 -72 of the 2013 Rules including that a Tribunal may revoke or vary a Judgment (or part thereof) where it is satisfied that it is necessary to do so in the interests of justice.

[10]The Tribunal has further reminded itself in particular, that when determining the relevant factual disputes which it is required to determine in respect of paragraph 6 of the letter dated 3 January 2019 (for the purposes of determining whether it is therefore necessary in the interests of justice to revoke or vary the Judgment relating to the claimant’s discrimination claims) it is required, in summary :-(a) to apply the civil standard of proof namely whether the claimant has established that it is more likely than not that the factual matters relied upon in support of her application dated 22 June 2018 occurred

(b) when doing so however, the Tribunal is also required to take into account that that the more serious the allegation/ the more serious the consequences if the allegation is proved, the less likely it is to have occurred and

(c) accordingly, the stronger the evidence therefore required to prove the allegation on the balance of probabilities. The approach of the Tribunal

[11]It was agreed that the Tribunal would(a) determine first whether the claimant has established the factual basis of the allegations at paragraph 6 of the letter dated 3 January 2019 (or any of them ) and

(b) thereafter set out in this judgment its proposed resolution of the application dated 22 June 2018 in the light of such findings subject to any further written submissions from the parties (but not the participant Mr Leach). Witnesses

[12]The Tribunal has received witness statements/ heard oral evidence from the following witnesses: - 12.1. Ms Gemma Shillabeer stylist with the respondent. 12.2. Ms S Cooper, stylist with the respondent 12.3. Mrs F Cole, stylist with the respondent. 12.4. The claimant 12.5. Mr D Leach, the respondent’s former Counsel and participant. 12.6. Mrs S Delany, the general manager of the respondent.

[13]Ms Shillabeer (“GS”) and Ms Cooper (“SC”) attended this hearing pursuant to the terms of witness orders dated 25 October 2019 which were obtained by the claimant. The Tribunal Judge decided, in the light of the potentially serious and sensitive nature of the allegations contained in the application dated 22 June 2018, which included allegations of interference with witness evidence by the respondent, not to notify the respondent or Mr Leach of the issue of the witness orders prior to the commencement of the hearing. The Tribunal however conducted a case management hearing at the commencement of this hearing during which it advised the respondent / Mr Leach of the position regarding the issue of the witness orders. Further, it was agreed at the hearing that(a) GS and SC would give oral evidence without being required to provide a witness statement

(b) the legal representatives for the respondent and Mr Leach would been given an opportunity to take their client’s instructions/ prepare their questions prior to the cross examination of GS and SC and

(c) that GS and SC would not be in attendance in the Tribunal room whilst the other gave evidence. Background – the liability hearing in April 2018

[14]The liability hearing in this case took place on 23 - 26 April 2018. As set out in the case management order dated 1 December 2017 (pages 39 a – 39c of the original hearing bundle) that hearing was timetabled on the basis that the oral evidence of the parties would be concluded by the end of day three (25 April 2018) and that the last day of the hearing would be limited to (a) oral closing submissions(b) the deliberations and judgment of the Tribunal and (c) the determination of remedy (if relevant). A proposed timetable of evidence was agreed accordingly.

[15]On the second day of the hearing (24 April 2018), the claimant made a successful application for a witness order requiring the attendance of an additional witness (LM) who had not previously been scheduled to give evidence on her behalf. LM gave her unscheduled oral evidence to the Tribunal on 24 April 2018. .

[16]The Tribunal heard oral evidence from a total of 16 witnesses (5 for the claimant and 11 for the respondent) during the course of the liability hearing. The respondent had three principal witnesses (Mr A Hill, Mrs Delany and Ms G Low) who were the alleged discriminators in the case. The respondent’s remaining witnesses included six trainees/former trainees/stylists (including GS and SC), who were scheduled to give their evidence to the Tribunal on 25 April 2018 (after the respondent’s principal witnesses had concluded their evidence) and attended the Tribunal accordingly. The witness statements of such witnesses, including GS and SC were, in comparison to the principal witnesses, relatively short and, overall, limited to specific issues in the case.

[17]The signed witness statement of GS, then a graduate stylist, dated 24 October 2017 is at pages 91-92 of the bundle. GS’ witness statement addressed the claimant’s allegations regarding the circumstances in which GS took her trade test in July 2016. The respondent also submitted to the Tribunal a signed statement from BY dated 21 October 2017 (which is at pages 84-85 of the bundle). BY’s statement also addressed the claimant’s allegations relating to the circumstances in which BY took her trade test.

[18]It was apparent by 25 April 2018 that the witness evidence of the parties would not be concluded by the end of that day. In the circumstances, the Tribunal agreed to hear the remaining oral evidence and closing submissions on 26 April 2018 and did so accordingly. GS did not give evidence to the Tribunal on 26 April 2018 and no application was made by the claimant’s representative for a witness order securing her attendance. The hearing concluded on 26 April 2018 and judgment was reserved. The events of 4 May 2018

[19]The claimant’s application dated 22 June 2018 relies in large part on alleged disclosures by GS to the claimant during a chance meeting at a local public house on the evening of 4 May 2018. These alleged disclosures concerned the alleged wrongdoing by the respondent and /or its professional advisers, as identified in paragraphs 6 (a) and (b) of the letter dated 3 January 2019, relating to the preparation for and defence of the claimant’s Tribunal claim in April 2018. GS was a former work colleague who, prior to the events in question, was also a close friend of the claimant. The nature of the matters allegedly disclosed by GS to the claimant on 4 May 2018 are contained in paragraphs 5 - 8 of the claimant’s witness statement dated 11 May 2018 (pages 97 – 98 of the bundle) and in the claimant’s subsequent statement dated 18 June 2018 (pages 100 – 101 of the bundle) (“the claimant’s statement dated 18 June 2018”) - which was submitted in support of her application dated 22 June 2018. The veracity of the allegations (as opposed to the discussions on 4 May 2018) are considered separately below.

[20]GS’ position regarding her discussions with the claimant on 4 May 2018 is contained in(a) her written statement at pages 57 – 60 of the bundle, referred to further below, and

(b) in her oral evidence to this Tribunal. In brief summary, GS accepted that she had had a chance meeting with the claimant at a local public house on 4 May 2018 but denied that she had disclosed any alleged wrongdoing by the respondent/ its professional advisers to the claimant during such encounter.

[21]Having weighed the available evidence, the majority of the Tribunal is not satisfied that the claimant has established, on the balance of probabilities, that GS disclosed the alleged wrongdoing identified in the statements of the claimant dated 11 May 2018 and/or 18 June 2018 to the claimant on 4 May 2018. When reaching this conclusion, the majority of the Tribunal has taken into account in particular, that(a) the burden is on the claimant to establish the factual basis of her claim

(b) GS denied making any such alleged disclosures to the claimant on 4 May 2018 and

(c) the claimant has not provided any supporting witness evidence / did not make any contemporaneous notes of the alleged discussions.

[22]Notwithstanding that the claimant has failed to establish the events of 4 May 2018 on the balance of probabilities, the Tribunal is however satisfied that GS would have been in a difficult position at that time because of the conflicting loyalties towards her employer and her friend. It is therefore possible that GS may have led the claimant to believe on 4 May 2018 that the respondent / its advisers had acted inappropriately in relation to the conduct of the Tribunal proceedings in order to seek to preserve their friendship.

[23]Further, the Tribunal has, in any event, gone on to address the veracity of the allegations identified at paragraphs 6(a) –

(b) of the letter dated 3 January 2019 below. Paragraph 6 (a) of the letter dated 3 January 2019 - The allegations contained in paragraphs 7 and 8 of the claimant’s witness statement dated 18 June 2018 relating to the alleged conduct of Mr Osborne/Mr Leach in respect of the alleged exclusion of the evidence of GS The alleged events of 25 and 26 April 2018 relating to the alleged exclusion of

[24]In summary, the claimant contended at paragraphs 7 and 8 of the claimant’s statement dated 18 June 2018 that :-(a) Mr Leach and his instructing solicitor Mr Osborne told GS whilst she was in the waiting room at the Tribunal with other witnesses that she should not attend the Tribunal the following day to give oral evidence

(b) that they would tell the Tribunal that GS had booked the time off to go away for her birthday and

(c) that Mr Leach and Mr Osborne insisted upon this course of action, notwithstanding GS’ protests, because they perceived that GS was a likely to be a weak witness for the respondent. The claimant further contended in her statement dated 18 June 2018 (paragraph 2) in support of such allegations, that on the late afternoon of 26 April 2018 Mr Leach subsequently told the tribunal that GS could not attend the Tribunal that day to give oral evidence as she was away for a pre-booked birthday weekend.

[25]The claimant made additional allegations in her witness statement which was prepared for this hearing (“the claimant’s witness statement”) including(a) (at paragraphs 6 & 7 ) that Mr Leach had deliberately waited until mid-afternoon on the last day of the hearing (26 April 2018) to inform the Tribunal that he would not be calling GS as (i) he did not want GS to be summoned by way of a witness order as he knew that she would tell the truth in particular regarding the claimant’s discriminatory treatment after she had returned from maternity leave) and (ii) that by saying that GS had gone away it would make it more difficult for the claimant to witness summons GS to attend the hearing and

(b) (at paragraph 8) of the claimant’s witness statement that the respondent’s diary entry for 26 April 2018 (page 94 of the bundle) which showed that GS had booked leave for 26 April 2018 on 21 April 2018 was created after that date as GS had told the claimant that she had been told to stay away. The author of such entry is recorded at page 94 of the bundle as Sam (Delany). This allegation was not however put to Mrs Delany in cross examination and was subsequently formally withdrawn by the claimant on the final day of the Hearing (in response to the Tribunal’s request to the claimant to clarify her position regarding this matter). The Claimant’s evidence

[26]The claimant was not present in the respondent’s waiting room on 25 April 2018 and is therefore unable to give first hand testimony of what happened including any discussions between GS and Mr Leach/ Mr Osborne. The claimant largely relies on the alleged disclosures by GS on 4 May 2018 referred to above.

[27]The claimant also relies in support of her allegations relating to 26 April 2018 on the extract notes of the Tribunal relating to Mr Leach’s comments to the Tribunal on 26 April 2018 regarding the attendance of GS as a witness and the oral evidence of GS. The claimant has not however produced a copy of any contemporaneous notes which were taken by her representatives/ family at the hearing on 26 April 2018. The written evidence of GS

[28]The Tribunal has had regard to GS’ evidence contained in the bundle regarding the alleged exclusion of GS’ oral evidence from the Tribunal hearing in April 2018 and related matters including in particular, the written statements contained in the bundle which were prepared by GS in response to / following the claimant’s statement dated 18 June 2018. These statements are at pages 57 – 60 and 61 of the bundle.

[29]In summary, GS stated in her written statements as follows:-(a) she attended the Tribunal on 25 April 2018 to give her oral evidence that day but was unable to do so as the claimant’s representative ran over with his questions

(b) she had Thursday 26, Friday 27 and Saturday 28 April 2018 booked off in advance for her birthday

(d) she was not instructed by anybody to say that she was going away/ told not to attend because they did not want her to tell the truth

(e) the claimant was well aware that GS was not going away as the claimant was due to attend GS’ birthday party on 28 April 2018

(f) in the light of the fact that the evidence had run over and GS’ booked holiday on Thursday 26 April 2018, Mr Leach and Mr Osborne reviewed GS’ evidence and realised that her non- attendance on 26 April 2018 would not affect the case as GS’ evidence regarding her trade test would be covered by the evidence of BY and (f) GS had originally booked leave with the respondent for 27 and 28 April 2018 (for her birthday) but had subsequently also requested leave at short notice for 26 April 2018 as her father had arranged for her to have a tattoo that day which additional leave was granted by the respondent.

[30]In summary, GS further stated in her oral evidence as follows:-(a) she told Mr Leach on 25 April 2018 that she was not working on 26 April 2018 as she had an appointment

(b) she did not recall saying anything to Mr Leach about going away

(d) When Mr Leach returned he told the claimant that she was not needed on 26 April 2018 as her evidence and that of BY was so similar

(e) GS said that she could be available on 26 April 2018 because it was just an appointment but was told that she was not needed because they had BY’s evidence and

(f) GS was pretty sure that she told Mr Leach about having a tattoo but was not sure what she had said to him about it. The evidence of Mr Leach

[31]The evidence of Mr Leach concerning the alleged exclusion of GS’ evidence is addressed at paragraphs 5 – 35 of his witness statement (“the witness statement of Mr Leach”). In brief summary,(a) Mr Leach strongly denied that he had conspired with anyone to exclude the evidence of GS or to mislead the Tribunal regarding GS’ availability on 26 April 2018

(b) sets out the sequence of events leading to/ the reasons for his decision not to call GS on 26 April 2018 including that he decided (after consultation with the respondent) that it was not necessary for GS to attend the hearing on 26 April 2018 as GS had booked leave on Thursday 26 April 2018 for an appointment and that her evidence could, in any event, be addressed by BY and

(c) it was Mr Leach’s understanding that GS had an appointment on 26 April 2018 in preparation for her going away for her birthday at the weekend and GS had told him that it was not possible for her to attend the Tribunal on 26 April 2018

(d) Mr Leach ‘s recollection of his explanation to the Tribunal on 26 April 2018 for GS’ non-attendance that day is set out at paragraphs 27 and 28 of Mr Leach’s witness statement.

[32]In summary, Mr Leach further stated in his oral evidence as follows :-(a) he had formulated a list of the proposed order of witnesses as part of his preparation for the hearing in April 2018

(b) he could not recall when and by whom he was first told about GS’ non availability on Thursday 26 April 2018 but believes that he was probably told by Ms Low of the respondent on the afternoon of Tuesday or the morning of Wednesday 24/ 25 April 2018 ( c) when he became aware of GS’s non availability on Thursday 26 April 2018 he considered the possibility of interposing her evidence but decided not to do so as GS’ evidence was similar to that of BY (and he also had text evidence upon which he could rely in relation to GS’ evidence ) and he did not want adversely to effect the flow of evidence of Andrew Hill or Ms Low who were more significant witnesses of the respondent / increase the risk of going part heard (d) he had no discussion with GS regarding her evidence and had no reason to believe that her statement was not true or accurate in any way (e) Mr Leach denied that he had considered that the claimant would have been placed at any disadvantage by his decision not to call GS to give evidence to the Tribunal – to the contrary he believed that it would be to the claimant’s advantage as GS’ statement was likely to carry little weight in the absence of her oral evidence and further, the reduction in the number of witnesses would reduce the risks of an application for costs against the claimant arising from the delay caused by the witness order issued in respect of LM (e) nobody advised him that GS was absent on 26 April 2018 because she was having a tattoo and further he was unaware of this until the preparations for this hearing (f) Mr Leach may have assumed that GS was going away for the weekend as he was told that GS had annual leave booked for the weekend and (g) Mr Leach told the Tribunal on 26 April 2018 what he understood to be the position namely, that GS was not available on Thursday 26 April 2018 and that she was going away at the weekend however he could not recall the exact words which he used to the Tribunal. Evidence of Mrs Delany

THE LAW

[33]The written evidence of Mrs Delany concerning the alleged exclusion of the evidence of GS is addressed at paragraphs 36 – 47 of her witness statement. In brief summary, Mrs Delany stated in her witness statement that:-(a) the running order of the claimant’s witnesses was determined by the respondent’s legal team

(b) GS was scheduled to give evidence on 25 April 2018 and attended the Tribunal that day accordingly - the reason that she did not give evidence that day was because the hearing was running over

(c) it was GS’ birthday on 28 April 2018 and on 9 February 2018 she had requested (and had been granted) 2 days leave on 27 and 28 April 2018 – page 93 of the bundle

(d) on 21 April 2018 GS requested an additional day’s leave on 26 April 2018 – page 94 of the bundle which was granted on the understanding that GS’ evidence would be completed by then

(e) the reason why GS wanted a day off on 26 April 2018 was because her father had booked an appointment for GS to have a tattoo for her birthday on that day

(f) GS was embarrassed about telling Mr Leach / Mr Osborne that the absence on 26 April 2018 was because she was having a tattoo and Mrs Delany does not recollect that either of them were told the reason for GS’s leave on 26 April 2018

(g) Mr Leach/ Mr Osborne were told that GS had pre- booked leave for next 3 days because it was her birthday weekend and

(h) It was agreed that GS would not be required to attend on 26 April 2018 in the circumstances including as another witness would be giving evidence on the same point and

(i) it was nonsense to suggest that GS was excluded from the hearing in any way because the respondent/ its legal team did not like what she had to say or that she was regarded as the respondent’s weakness witness

(j) GS did not at any stage state that her statement was incorrect and no-one at any point tried to influence her answers. Mrs Delany also stated in her oral evidence that :- (a) she had not had any input into the decision about when/ if to call GS (b) she understood that GS was embarrassed about telling Mr Leach / Mr Osborne about her tattoo and that they were not told about it. Evidence of Mr Osborne

[34]The Tribunal has not heard any oral evidence regarding this matter from Mr Osborne. The Tribunal has however had regard in particular to the contents of the letter from WBW solicitors (who were acting for the respondent at the relevant time) to the SRA dated 26 September 2018 (at pages 145 – 148 of the bundle) in which(a) the allegations are denied on behalf of Mr Osborne and

(b) an account of the events in question is provided which is broadly consistent with that provided by Mr Leach. Contemporaneous documentation

[35]There is very limited contemporaneous documentary evidence. When considering the allegations the Tribunal has had regard in particular to(a) the respondent’s diary entry for 26 April 2018 (page 94 of the bundle) which records an entry on 21 April 2018 by Sam (Delany) showing a holiday booking for 26 April 2018 (page 94 of the bundle) (which the claimant no longer contends may have been fabricated) and

(b) the Tribunal’s brief (non- verbatim) notes of what Mr Leach said to the Tribunal on 26 April 2018 regarding the non – attendance of GS as set out below.

[36]Employment Judge(a) (around 11.30am on 26 April 2018 ) DL – I am not calling GS not available today and

(b) between 3 and 3.55pm – gone away for birthday.

[37]Member (around 3.12pm) - She (GS) was here yesterday. She was here when it was scheduled. It’s her birthday on Saturday. She’s gone away for the weekend. The findings of fact of the Tribunal in respect of paragraph 6 (a) of the letter dated 3 January 2019

[38]When reaching its conclusions regarding the allegations at paragraph 6 of the letter dated 3 January 2019 the Tribunal has had regard in particular to(a) the evidence referred to in this judgment and

(b) the associated written and oral submissions of the parties/ Mr Leach together with the legal authorities upon which they rely as referred to above . The events of 23- 25 April 2018

[39]The Tribunal is satisfied, on the balance of probabilities as follows: - 39.1. GS had booked leave with the respondent to be taken on 27 and 28 April 2018 for her birthday. On 21 April 2018 GS requested, and was granted, by Mrs Delany a further day’s holiday to be taken on 26 April 2018. This additional day’s leave was requested by GS when her father booked her an appointment to have a tattoo on 26 April 2018. When reaching this conclusion, the Tribunal has taken into account in particular, the oral evidence of GS and Mrs Delany together with the respondent’s diary entry at page 94 of the bundle (which the Tribunal is satisfied is a genuine diary entry). 39.2. Mr Leach decided, as part of his preparation for the hearing in April 2018, to call the respondent’s witnesses in the order set out in his document at page 1 of the bundle including(a) that he would call the respondent’s principal witnesses first namely Mr Hill, Mrs Delany and Ms Low (who had all been identified as alleged discriminators) and

(b) GS was intended to be the penultimate witness for the respondent with BY as the final witness. 39.3. Mr Leach became aware on or around the morning of Wednesday 25 April 2018 that GS had an appointment on 26 April 2018. 39.4. GS attended the Tribunal on 25 April 2018 together with a number of her colleagues in order to give their oral evidence to the Tribunal as scheduled that day. 39.5. It was apparent by 25 April 2018 that the oral evidence of the parties would not, as had previously been scheduled, be concluded by the end of that day. 39.6. Mr Leach had a brief discussion/discussions with GS on 25 April 2018 regarding her availability to give evidence to the Tribunal as a result of which Mr Leach understood that (a) GS was not available to attend the hearing on 26 April 2018 as she had booked leave for an appointment that day (b) GS had also booked leave for 27 and 28 April 2018 for her birthday and

(c) Mr Leach understood/assumed that GS was going away at the weekend for her birthday. The Tribunal is not however satisfied, on the balance of probabilities that (a) Mr Leach was aware that GS was having a tattoo on 26 April 2018 or (b) that GS indicated to Mr Leach any willingness to cancel her appointment to attend the Tribunal on 26 April 2018. 39.7. When reaching the above conclusions the Tribunal has taken into account in particular, that (a) the evidence of GS and Mr Leach concerning such matters is broadly consistent including that GS would be absent from work by reason of an appointment on 26 April 2018 (b) whilst GS recalled that she did not say anything to Mr Leach about going away Mr Leach accepted that he may have assumed this as he was told that GS had annual leave booked for her birthday weekend (c) that Mr Leach denied that he was aware that GS was having a tattoo on 26 April 2018/ that she had made any offer to attend on 26 April 2018

(d) that whilst GS said that she was pretty sure that she had told Mr Leach about having a tattoo she was not sure what she had said to him about it and

(e) Mrs Delany’s evidence that GS was embarrassed about telling Mr Leach/ Mr Osborne about having a tattoo. 39.8. Following discussions with Mr Osborne/ the respondent, Mr Leach decided that it was not necessary to call GS to give evidence on 26 April 2018 or to interpose her evidence on Wednesday, 25 April 2018. 39.9. The Tribunal is satisfied that the respondent/ Mr Leach/ Mr Osborne reached this conclusion for the following reasons namely (a) that they understood that GS was not available to give evidence on 26 April 2018 for the reasons referred to above and (b) Mr Leach was satisfied that it was not necessary for GS to give oral evidence to the Tribunal as she was not a central witness in the case and that her evidence could be addressed instead by BY who gave similar evidence in her witness statement regarding the circumstances in which she had taken her trade test . 39.10. The Tribunal has taken into account in particular, the evidence of Mr Leach, Mr Osborne and GS referred to above including that (a) GS accepted in her oral evidence that when she informed Mr Leach that she was unable to attend on 26 April 2018 he informed her after consultation with the respondent that she was not needed on 26 April 2018 as her evidence and that of BY was so similar (b) GS was not a central witness - as stated above her witness statement is limited to the issue of the circumstances of her trade test which is also addressed in the witness statement of BY. 39.11. The Tribunal is further satisfied that there was no further discussion between Mr Leach/ Mr Osborne and GS regarding the contents of GS’ witness statement/ any evaluation of her likely strengths as a witness including that (a) there was no practising of GS’ witness evidence (b) that there was no assessment by Mr Leach/ Mr Osborne that GS was the respondent’s weakest witness (c) that the respondent / Mr Leach/ Mr Osborne did not therefore conclude that they did not wish GS to give evidence and (d) that there was no agreement by Mr Leach/ Mr Osborne that they would tell the Tribunal that GS had prebooked time off to go away for her birthday as a pretext to avoid GS giving evidence on 26 April 2018/ any associated objections from GS. 39.12. When reaching such conclusions the Tribunal has taken into account in particular that (a) the respondent/ Mr Leach/ Mr Osborne denied any such discussions (b) GS denied the allegations in her statement at pages 57-60 of the bundle and GS also denied any such discussions in her oral evidence and (c) the claimant was not present during any such alleged discussions on 25 April 2018 and further that evidence upon which she relies in support of her case is largely based on the alleged disclosures which were made by GS to the clamant on the night of 4 May 2018 which are denied by GS. 39.13. The Tribunal has also taken into account the inherent unlikelihood of Mr Leach and/or Mr Osborne, who are both experienced employment practitioners subject to regulation by the SRA/BSB, being engaged in the potentially serious professional misconduct alleged by the claimant, particularly given that (a) viewed objectively the evidence of GS was of limited relevance in the case as her witness statement was restricted to the issue of the taking of her trade test which was also addressed in the evidence of BY and (b) that there is no evidence to suggest that Mr Leach / Mr Osborne had any reason to believe at the relevant time that GS was unhappy with her signed witness statement or that her oral evidence was likely to depart in any way from such statement. The events of 26 April 2018

Background

[40]The Tribunal is satisfied, on the balance of probabilities that on 26 April 2018: - 40.1. Mr Leach advised the Tribunal during the morning of 26 April 2018 that he did not intend to call GS to give evidence as she was not available that day (paragraph 36 above). The Tribunal is further satisfied that the reasons for such notification were as previously stated above. 40.2. Mr Leach further confirmed to the Tribunal during the afternoon of 26 April 2018 the position regarding GS as stated at paragraphs 36 and 37 above. 40.3. The information provided by Mr Leach to the Tribunal on 26 April 2018 reflected his understanding of the situation regarding GS as referred to previously at paragraph 39 above. 40.4. The claimant’s representative did not at any time make an application to the Tribunal for a witness order to require GS’ attendance at the Tribunal as a witness. 40.5. There is no evidence to support the contention of the claimant that(a) Mr Leach misled and/or sought to mislead the Tribunal (or the claimant) regarding the availability of GS on 26 April 2018 or

(b) that Mr Leach’s/ Mr Osborne’s decisions or actions in respect of the attendance of GS as a witness at the Tribunal on 26 April 2018 were made for anything other than wholly appropriate and proper case management reasons.

[41]In all the circumstances, the Tribunal is not satisfied that the claimant has established the factual basis for allegation 6(a) of the letter dated 3 January 2019. Paragraph 6

(b) of the letter dated 3 January 2019 - the allegations contained in paragraphs 7 & 8 of the claimant’s witness statement dated 18 June 2018 relating to the alleged conduct of Miss Low and/or Mr Osborne and/or Mr Leach relating to the alleged interference with the evidence of other witnesses.

[42]In summary, the claimant contends that during the course of the hearing in April 2018(a) Ms Low and/ or Mr Leach coached GS and other stylists about what to say in their evidence and/or

(b) that Mr Leach told them to say in their evidence to the Tribunal “I don’t know” or “I can’t remember” when their answers were not “what he wanted”. The claimant’s evidence

[43]The claimant did not witness any of the alleged conduct of Mr Leach/ Mr Osborne or Ms Low on 25 April 2019 and is therefore unable to give firsthand testimony regarding such matters. The claimant relies upon the information previously identified at paragraphs 19 -21 above. The claimant did not make any specific allegations against Mr Osborne.

[44]The Tribunal has had regard to the evidence of GS in the bundle regarding such matters including in particular, the written statements contained in the bundle which were prepared by GS in response to/following the claimant’s statement dated 18 June 2019 (pages 57- 60 /61 of the bundle).

[45]In summary, GS stated in her statement (page 60 of the bundle) that(a) she and a number of her colleagues were in the waiting room together with Ms Low on 25 April 2018

(b) they were very nervous and were therefore talking about their statements

(c) when BY made a comment about the circumstances of her trade test Ms Low responded by saying that that was not what had happened and

(d) EB and SC also recalled something similar being said and

(e) Mr Leach did not instruct them to say that they did not know or could not remember as alleged by the claimant but only to do so when they genuinely did not know the answer.

[46]In summary, GS stated in her oral evidence that(a) when BY was asked a question GL stated that it had not happened like that

(b) she felt that Ms Low was helping them/ reminding them of what had happened because they were nervous and she was their training manager. Ms Low did not however tell them / coach them on what to say – she just gave them advice about the situation. Nobody placed any pressure on GS or any other witness as to how they should give their evidence

(c) GS could not recall whether Ms Low discussed the evidence in front of Mr Leach or Mr Osborne or whether they were even in the room at the time

(d) Mr Leach did not tell anyone how to respond to the evidence other than to advise them that if they were unsure about how to answer a question/ could not remember the answer it was okay for them to say that they didn’t know or could not remember. The oral evidence of SC.

[47]In summary SC stated in her oral evidence that(a) she was in present in the Tribunal waiting room on 25 April 2018 with the other trainees/ stylists

(b) SC recalled Ms Low asking GS and other stylists questions in the waiting room

(d) the stylists were nervous and Ms Low was trying to calm them down (c) Ms Low did not coach anybody or bring any pressure to bear on any of the witnesses regarding their evidence (d) SC did not believe that Mr Leach or Mr Osborne were in the room when Ms Low was talking to the stylists and

(e) Mr Leach did not seek to coach the witnesses in any way. A number of the witnesses asked Mr Leach what to do if they didn’t know or couldn’t remember and Mr Leach told them that they were allowed to say as such. The evidence of Mr Leach

[48]The allegations relating to the alleged coaching of/ interference with witnesses is addressed at paragraphs 36- 43 of Mr Leach’s witness statement. In brief summary, :-(a) Mr Leach absolutely denied that he had “practised the evidence with any of the witnesses” including that he had, as alleged, told GS or any of the respondent’s witnesses to say that they did not know or could not remember if their evidence was “not what he wanted”

(b) Mr Leach had had a discussion with the witnesses as a group on 25 April 2018 during which he had explained, in accordance with his standard practice, that although they should try as far as possible to answer any questions, if they could not remember they should say so (d) Mr Leach did not discuss the substance of her evidence with GS - he did not need to do so as he did not consider GS’ evidence to be of any particular importance to the respondent’s case and (e) Mr Leach did not witness any of the alleged discussions between Ms Low and any of the witnesses.

[49]In summary, Mr Leach also stated in his oral evidence as follows : -(a) Mr Leach did not have any discussion with GS regarding the substance of her evidence whatsoever and had absolutely no reason to believe that her statement was not true or accurate in anyway

(b) Mr Leach was not party to any discussions between Ms Low and the other witnesses / did not speak to Ms Low about the witness evidence

(c) the waiting room in the Tribunal on 25 April 2018 was very busy with a large number of witnesses for the respondent together with parties in other cases and there was no way in which Mr Leach could have been privy to all the conversations in the waiting room that day.

[50]In summary, Mrs Delany stated in her witness statement as follows: -(a) the witnesses were nervous and asked what they should do if they were asked about something they couldn’t answer or couldn’t remember- in response to which they were told in clear terms to tell the truth and do the best that they could and

(b) the witnesses were not coached and nobody tried to influence their answers to any questions.

[51]In summary, Mrs Delany further stated in her oral evidence as follows:-(a) Mrs Delany was in attendance at the Tribunal hearing apart from the first morning and

(b) Mrs Delany did not witness any alleged coaching of the witnesses by Ms Low and (b) Ms Low left the employment of the respondent in February 2019. The findings of fact of the Tribunal in respect of paragraph 6 (b) of the letter dated 3 January 2019.

[52]When reaching its conclusions the Tribunal has had regard in particular to(a) the evidence summarised at paragraphs 43 - 51 above and

(b) the further submissions and matters referred to paragraphs 8 - 10 above. The allegations against Mr Leach/ Mr Osborne

[53]The Tribunal is satisfied, on the balance of probabilities, that: - 53.1. Mr Leach had a discussion with the respondent’s witnesses as a group on 25 April 2018 regarding the Tribunal process. As part of such discussion, and in response to questions from the witnesses about what they should do if they could not remember/ could not answer a question, Mr Leach advised them, in accordance with his standard practice, that(a) they should try as far as possible to answer any questions and

(b) however, if they could not remember something/could not answer the question they should say so. 53.2. Mr Leach did not discuss the substance of their evidence with any of the respondent’s trainees/ stylists on 25 April 2018. Further, Mr Leach was not party to any alleged discussions between Ms Low and the respondent’s witnesses on 25 April 2018 regarding their evidence. 53.3. Mr Leach and Mr Osborne acted wholly appropriately and professionally in their dealings with the respondent’s witnesses on 25 April 2018 including that they did not, at any time, seek to coach or interfere with the evidence of the witnesses.

[54]When reaching the above conclusions the Tribunal has taken into account in particular that(a) Mr Leach/ Mr Osborne denied any such conduct

(b) the allegations are also denied by the other witnesses (GS/ SC and Mrs Delany)

(c) the claimant was not present in the respondent’s waiting room on 25 April 2018 and further that the evidence upon which she relied in support of her claims is limited to the disclosures which were allegedly made by GS on the night of 4 May 2018 which are denied by GS

(d) although Mr Osborne has not given oral evidence to the Tribunal, the Tribunal has had regard to the written submissions which were provided on his behalf to the SRA/ in response to the claimant’s allegations and further that no specific allegations have been made by the claimant against Mr Osborne / suggested in any way by any of the other witnesses and

(e) the inherent unlikelihood of Mr Leach / Mr Osborne being engaged in such potentially serious professional misconduct. The allegations against Ms Low

[55]Ms Low is no longer in the employment of the respondent and has not given any evidence to the Tribunal in response to the claimant’s allegations. Having given careful consideration to the available evidence (including in particular to the evidence of GS, SC and Mrs Delany referred to above) the Tribunal is satisfied, on the balance of probabilities as follows: - 55.1. There was a discussion between Ms Low and the trainees/ stylists regarding the latter’s evidence whilst they were in the Tribunal waiting room on 25 April 2018 including, during the course of which, Ms Low disagreed with GS’ and BY’s recollections on matters. 55.2. The trainees/ stylists were nervous about the prospect of giving evidence to the Tribunal and, in recognition of such, Ms Low acted towards the trainees/stylists in a supportive manner in her role as their training manager. There was some limited discussion about the witnesses’ recollection of events, Ms Low did not however coach the witnesses or seek to pressurise them to change their evidence.

[56]When reaching the above conclusions the Tribunal has taken into account in particular that whilst it has not heard any evidence from Ms Low (who is no longer in the respondent’s employment) in response to the claimant’s allegations (a) Mr Leach and Mrs Delany have both confirmed that they did not hear any alleged inappropriate conduct on the part of Ms Low (c) the claimant was not present in the waiting room on 25 April 2018 and was therefore not privy to any such alleged discussions and (d) SG/ CS denied that there had been any improper conduct on the part of Ms Low and stated that they perceived Ms Low to be acting as a supportive manager and in recognition of the fact that the trainee/stylists were nervous about giving evidence to the Tribunal that day.

[57]In all the circumstances, the Tribunal is not satisfied that the claimant has established the factual basis for allegation 6 (b) of the letter dated 3 January 2019. Paragraph 6 (c) of the letter dated 3 January 2019 – The allegations contained in paragraphs 1 and 2 of the claimant’s statement dated 15 July 2018 relating to the alleged interference by the respondent with witness evidence. The claimant’s case

[58]The claimant’s case in respect of the above principally relies on what she was allegedly told by GS on 8 July 2018. In summary, the claimant contended at paragraphs 1 and 2 of her statement dated 15 July 2018 that she was told by GS in a bar on 8 July 2018 that(a) GS had been called into the office at the respondent and instructed to make a statement thereby causing GS to become distressed and

(b) that GS agreed with the claimant’s statement to GS on 8 July 2018 that the respondent had got the respondent’s witnesses to lie and change their statements (for the Tribunal hearing).

[59]The claimant made further allegations in the claimant’s witness statement that witnesses (including GS and SC) had felt pressurised by the respondent to change their witness statements / that their witness statements had been changed by the respondent/Mr Osborne to support the respondent’s case/disadvantage the claimant (paragraphs 11-31 of the claimant’s witness statement).

[60]The claimant relied in particular, in support of her claims on(a) what she had allegedly been told by GS on the night of 8 July 2018

(b) the respondent’s notes of the meeting with GS at pages 77 a- 80a of the bundle and

[61]The claimant did not make any contemporaneous notes of any alleged discussions with GS/, SC/ Sophie Barnes (“SB”) also a former colleague, on the night of 8 July 2018. The claimant accepted that the alleged discussions had taken place in a late-night bar (albeit she contended earlier than suggested by GS/ SC) but denied that she had had anything significant to drink that night and /or that her recollections had been impaired by alcohol.

[62]In summary, GS stated in the written statement which she prepared on or around 10 July 2018 (page 221 of the bundle) that(a) she was approached by the claimant who confronted GS (who was accompanied by SB and SC) about her blocking the claimant on social media

(b) GS responded that the claimant had twisted what she had told her and that this had placed GS in a difficult position

(c) GS told the claimant and SB that although the choice of words which she had used in her statement (for the Tribunal hearing) had been changed to improve her grammar the facts had not been changed

(d) the claimant alleged that Mrs Delany and Mr Hill were trying to turn the witnesses against the claimant (d) SC joined in the dispute between the claimant and GS and said “ you know what annoyed me about the court case, everything getting changed to be a lie”

(e) GS felt uncomfortable about the confrontation with the claimant and texted her boyfriend to request him to get her away from the situation and

(f) GS, SB and SC had been drinking that night.

[63]In summary, GS’ oral evidence regarding the incident on 8 July 2018 and associated matters was as follows :-(a) GS told the claimant on 8 July 2018 that she had blocked the claimant on social media because of the CCTV footage which the claimant had previously obtained of GS in ASDA on 26 April 2018

(b) GS did not recall agreeing with the claimant’s allegation on night of 8 July 2018 (including nodding her head in acquiescence) that the situation had arisen because the respondent had got the witnesses to lie and change their statements

(c) GS believed that SC had been talking about changes to grammar rather than to any factual changes to the witness statements (for the Tribunal hearing)

(d) GS walked away from the confrontation with the claimant on 8 July 2018 and did not hear what SB said

(e) Mrs Delany, Mrs Hill and Amanda (Head) had questioned GS in a meeting about the claimant’s statement dated 18 June 2018 and had explained to her the seriousness of the situation/ asked GS how her parents would feel (c) although Mr Hill had popped in and out of the room during that meeting he did not participate in the meeting (d) GS had become upset during the meeting but did not feel intimidated by the respondent. GS was upset because of the nature of the situation and not because of any pressure by the respondent (d) GS prepared her response (pages 57 – 60 of the bundle) to the claimant’s statement dated 18 June 2018 at home following the meeting with the respondent and (e) GS prepared her subsequent statement at page 221 of the bundle concerning the events of 8 July 2018 at the request of the respondent in the staff room on 10 July 2018. The evidence of SC

[64]In summary, SC stated in the brief statement which she prepared on 10 July 2018 regarding the events of 8 July 2018 (page 222 of the bundle) that(a) GS and the claimant were shouting at each other

(b) the claimant accused SB and SC of lying at the (Tribunal) hearing and said that she thought that they were friends

[65]In summary SC at first denied in her oral evidence to the Tribunal regarding the events of 8 July 2018 that she had made the alleged statement referred to at paragraph 62 above. However, SC subsequently accepted in her oral evidence that she could not remember much about the conversation on 8 July 2018, including whether she had made the alleged comment, as it was 18 months ago and she had been drinking heavily that night.

[66]In summary, Mrs Delany stated in her witness statement that following the receipt of the claimant’s statement dated 18 June 2018 (which had been submitted to the Tribunal in support of the claimant’s application for a reconsideration of the Judgment) she, Mrs Hill and Ms Head had held a meeting with GS to discuss the statement, the typed notes of which are at pages 77a – 80a of the bundle (b) GS became upset when she read the claimant’s statement dated 18 June 2018 and said that her words had been twisted by the claimant who was supposed to be a good friend (c) Mrs Hill asked GS if her parents knew what had happened and advised her to speak to them for support as the situation could become serious (c) GS was provided with a copy of the claimant’s statement dated 18 June 2018 and asked to write down in her own words, after speaking to her mother, what had happened including that she should be completely honest about everything (d) GS subsequently prepared the statement at pages 57 – 60 of the bundle which Mrs Delany understood had been prepared by GS at home and (e) SB advised the respondent of the subsequent incident on 8 July 2018 and GS, SC and SB were asked by the respondent to write down on 10 July 2018 their recollections of that night which are the unsigned statements at pages 221 – 223 of the bundle. The events of June/ July 2108

[67]Having given careful consideration to the available evidence, the majority of the Tribunal is satisfied, on the balance of probabilities, as follows: - 67.1. Following the receipt of the claimant’s application dated 22 June 2018 (for the reconsideration of the Judgment) and accompanying statement dated 18 June 2018) GS was asked to attend a meeting with Mrs Hill, Mrs Delany and Ms Head, Head receptionist at the respondent on an unknown date in response to the claimant’s statement dated 18 June 2018. Mr Hill came in and out of the room in which the meeting was being held from time to time but did not participate in the meeting. 67.2. GS did not receive any prior notice of the meeting/ the purpose of the meeting and became upset when she became aware of the contents of the claimant’s statement dated 18 June 2018 (and in particular what the claimant stated that she had been told by GS on the night of 4 May 2018). In summary, the respondent explained to GS the potential seriousness of the situation and advised GS to discuss it with her parents. GS was requested by the respondent to prepare a statement responding to the claimant’s statement dated 18 June 2018. GS was provided with a copy of the claimant’s statement dated 18 June 2018 for such purposes. GS was advised by the respondent to speak to her mother about the statement dated 18 June 2018 and to give an honest response. 67.3. GS subsequently prepared and submitted to the respondent her written statement at pages 57 – 60 which was prepared by her at home. 67.4. In the light of the above findings, the majority of the Tribunal is not satisfied that the Respondent acted inappropriately towards GS following the receipt of the application dated 18 June 2018 as alleged by the claimant. 67.5. On 8 July 2018, there was a subsequent confrontation between the claimant and, in particular, GS at a local late-night bar. GS was accompanied by SC and SB. The incident occurred late at night and all of the participants had been consuming alcohol. SC in particular had been drinking very heavily. The claimant had had less to drink than the remaining participants. 67.6. The claimant confronted GS about GS blocking the claimant on social media. The claimant was distressed/ angry as she and GS had previously been close friends. 67.7. GS told the claimant that she was upset because(a) of the footage which the claimant had obtained of her of at ASDA on 26 April 2018

(b) she had subsequently been required to attend a meeting with the respondent which she had found distressing and

(c) that the claimant had placed her in a difficult and distressing position. 67.8. The claimant replied to GS in the broad terms set out in the penultimate sentence of paragraph 1 of her statement dated 15 July 2018 including, in summary, alleging that the situation had arisen because the respondent had got the witnesses to lie and change their statements (for the Tribunal hearing). 67.9. The majority of the Tribunal is not satisfied that GS agreed with the claimant’s allegations as contended by the claimant. The majority of the Tribunal is satisfied, on the balance of probabilities, that GS walked away from the situation without responding to the claimant’s allegations. When reaching this conclusion, the Tribunal has taken into account in particular (a) the context of the discussion including that it took place late at night following the consumption of alcohol (b) the allegation is denied by GS and (c) it is unlikely that GS would have made such a comment in the light of the position in which she had been placed following the receipt of the claimant’s statement dated 18 June 2018 and the subsequent events referred to above. 67.10. The Tribunal is however satisfied, on the balance of probabilities, that SC made the comment to the claimant on 8 July 2018 which is attributed to her at the beginning of paragraph 2 of the claimant’s statement dated 15 July 2018 namely “my statement was changed but in court I had to go along with my statement, and with what they told us to say”. 67.11. When reaching this conclusion the Tribunal has taken into account in particular that (a) although SC initially denied in her evidence to the Tribunal that she had made such a remark she subsequently accepted that she had been drinking heavily on the night of 8 July 2018 and could not recall what had happened (b) GS stated in her note of the incident dated 10 July 2018 (at page 221 of the bundle and paragraph 62 above) that SC had something similar and (c) SB stated in her brief statement dated 10 July 2018 of the incident on 8 July 2018 (page 223 of the bundle) that “SC said to Lauren that her statement and everyone elses are a lie and their words have been twisted”. The preparation of the respondent’s witness statements

[68]In summary, the claimant contended that the respondent / Mr Osborne had interfered with the witness evidence before the Tribunal including that they had changed the witness statements of her former colleagues, GS and SC in order to strengthen the respondent’s case and disadvantage the claimant. The claimant relies in support of her case in particular on the contents of her statement dated 15 July 2018 and the statements dated 10 July 2018 of GS, SC and SB at pages 221 – 223 of the bundle (referred to previously above).

[69]The claimant expanded her allegations further at paragraphs 11 onwards of the Claimant’s witness statement.

[70]In summary, GS stated in her written statement at pages 57 – 60 of the bundle (which was written in response to the claimant’s statement dated 18 June 2018) that(a) GS prepared a written statement (for the purposes of the Tribunal proceedings) which she gave to Mrs Delany to type up for her so that she could use the correct format and grammar

(b) the statement was typed up for GS by Mrs Delany who put it in a slightly more grown up way but without changing the factual basis of the statement

(c) after Mrs Delany had typed up the statement for her GS was given a copy to sign once she was happy with the contents.

[71]In summary, GS stated in her oral evidence that(a) she prepared the document at page 55 of the bundle for the purposes of the Tribunal hearing in April 2018 – GS believes that it may have been written at home

(b) she sent her statement to Mr Osborne / Mr Leach – she believed that she dropped into the office opposite Argos

(c) GS cannot recall the document at page 56 of the bundle – GS does not believe that it was prepared by Mrs Delany as Mrs Delany was not at work at that time

(d) GS received the email from Mr Osborne dated 24 October 2017 at page 90 of the bundle together with an attached draft witness statement (f) GS was happy with the form of statement at pages 91-92 of the bundle and signed it accordingly (g) GS did not feel under pressure to accept any changes to her statement. The evidence of SC

[72]In summary, SC stated in her oral evidence that :-(a) Mrs Delany typed up the statement at page 52 with SC in the office

(b) SC did not prepare a handwritten version

(d) SC was given the draft statement at pages 53- 54 of the bundle for comments and gave feedback to Mrs Delany who made the manuscript notes on the draft and

(e) SC subsequently received a copy of the final form of statement at pages 87 – 89 of the bundle which she signed as she was happy that the statement was true. The evidence of Francesca Cole

[73]Francesca Cole (“FO”), hairstylist at the respondent, submitted a witness statement for the reconsideration proceedings in which in summary, FO(a) explained the process by which her witness statement had been produced for the purposes of the Tribunal hearing in April 2018

(b) confirmed that she had not been placed under pressure by anyone to say anything and

(c) the content of the statement which she had signed for the purposes of the Tribunal hearing in April 2018 was true. The contents of FO’s witness statement were not challenged by the claimant.

[74]Mrs Delany’s written evidence relating to the process by which the witness statements were prepared for the hearing in April 2018 is set out at paragraphs 5- 29 of her witness statement. In brief summary, Mrs Delany stated in her witness statement that :-(a) the evidence of the respondent’s principal witnesses (Mr Hill, Ms Low and herself) was prepared following meetings with Mr Osborne

(b) the evidence of the remaining witnesses was shorter and focused on specific points raised by the claimant

(c) it was therefore decided that they would be asked to record their own accounts of the events in question in writing which were then collated by Mrs Delany and forwarded to Mr Osborne

(d) some of the witnesses prepared written notes, others preferred to sit down with Mrs Delany who typed out what they wanted to say

(e) all of the witness for whom Mrs Delany prepared a typed witness statement were asked to check that it was accurate and that they were happy with the content

(f) their handwritten notes were returned to the witnesses, the majority of which were subsequently discarded

(g) after the information had been reviewed by Mr Osborne he formatted the information into a formal witness statement tidying up the wording and grammar where required

(h) Mr Osborne emailed to Mrs Delany the proposed changes to the draft statements (page 83 of the bundle) for checking by the witnesses

(i) the witnesses had the opportunity to read through the draft statements and to notify Mrs Delany of any amendments

(j) in some statements the witnesses were asked to clarify matters raised by Mr Osborne in the draft and

(k) the statements were then finalised and signed by the witnesses.

[75]Mrs Delany set out at paragraph 24 of her witness statement the process which she stated was followed in respect of SC which she further contended illustrated the process which was adopted with the junior witnesses.

[76]Mrs Delany contended that the process adopted for GS, who was the last witness to provide the respondent with a statement, was slightly different as set out at paragraph 20 of Mrs Delany’s witness statement. In summary, Mrs Delany stated that:-(a) GS prepared the written statement at page 55 of the bundle / a typed statement was also prepared (page 56 of the bundle) which was sent direct to Mr Osborne (pages 83 and 90 of the bundle)

(b) Mrs Delany was on holiday between 23 – 29 October 2017 and Mr Osborne wrote to GS direct on 24 October 2017 with a draft witness statement for checking (page 90 of the bundle). The oral evidence of Mrs Delany

[77]Mrs Delany confirmed the above account in her oral evidence and further stated, in summary, that:-(a) this was the first time that she had been involved in such a process

(b) although she checked her own statement closely she left it to the remaining witnesses to check and approve their own individual statements

(d) she did not put any pressure on any of the witnesses to make any changes to their statements

(e) it was up to the witnesses to decide what was in their statements and they signed them of their own free will and (e) Mr Hill had no involvement in the preparation of the witness statements for the staff. The evidence of Mr Osborne

[78]Mr Osborne did not attend the Hearing and the Tribunal has had no direct written or oral evidence from him. The Tribunal has however had regard in particular to(a) the contents of the emails passing between Mr Osborne and the respondent / GS referred to above and

(b) the contents of the letter dated 26 September 2017 which was sent to the SRA on Mr Osborne’s behalf (at pages 145 – 148 of the bundle) (and in particular to page 147 of the bundle). The conclusions of the Tribunal regarding the preparation of the witness statements for the liability hearing

[79]After giving careful consideration to all of the above, the majority of the Tribunal is satisfied, on the balance of probabilities, as follows: - 79.1. The process adopted by the respondent / Mr Osborne for the preparation of the witness statements for the Tribunal hearing in April 2018, including GS and SC, was as summarised above and, in particular, in the evidence of Mrs Delany and in the letter to the SRA dated 26 September 2017 (page 147 of the bundle). 79.2. In brief summary :-(a) the witnesses, other than the respondent’s principal witnesses Mr Hill, Mrs Delany and Ms Low, were requested to provide initial drafts of the statements which were supplied by way of a manuscript note and /or a typed version (which was prepared with the assistance of Mrs Delany)

(b) the drafts were sent to Mr Osborne who prepared formal draft statements for consideration by the witnesses, including in some cases, identifying matters which required clarification, such as in the case of SC ( pages 53- 54 of the bundle)

(c) the witnesses were requested to check their statement/ provide feedback, which in most cases was obtained by Mrs Delany and passed to Mr Osborne

(d) Mr Osborne made any necessary amendments and provided updated statements for approval and signature by the witnesses and

(e) the witnesses signed and returned their statements confirming that the facts contained in their statements were true. 79.3. The process adopted with regard to GS’ statement was slightly different for the reasons given above including that Mr Osborne corresponded with GS directly as confirmed by the email dated 24 October 2017 at page 90 of the bundle in the light of Mrs Delany’s absence on leave. 79.4. There is no evidence, notwithstanding the Tribunal’s findings regarding what SC said to the claimant on the night of 8 July 2018 (at paragraph 67.10 above) that the witness statements of SC or any other witnesses were changed under instruction and/or under pressure from the respondent. 79.5. When reaching the above conclusions the majority of the Tribunal has taken into account in particular that :- (a) FC, GS and SC have all denied such allegations and confirmed that the statements which they signed in respect of the Tribunal hearing in April 2018 were true and accurate (b) the evidence of Mrs Delany and Mr Osborne regarding the process by which the relevant witness statements were prepared is consistent with the available documentary evidence including Mr Osborne’s emails to the respondent dated 20 October 2017 (page 83 of the bundle ) and to GS dated 24 October 2017 (page 90 of the bundle) (c) the comments which were made by SC to the claimant on the night of 8 July 2018 were made in a confrontational situation late at night and after SC had been drinking heavily. Further SC was in a difficult position with conflicting loyalties to her employer and to the claimant and (d) that the complaint against Mr Osborne has been dismissed by the SRA and further that it is inherently unlikely that he would have acted in such away in breach of his professional duties as a solicitor and the potential consequences of such conduct. 79.6. Further, the majority of the Tribunal is satisfied that there is no cogent evidence that any amendments to the relevant witness statements for the Tribunal Hearing in April 2018 went beyond the process of clarification and amendment which occurred/ would be expected as part of the normal process for the preparation and finalisation of witness statements. 79.7. When reaching the above conclusions the majority of the Tribunal has had regard in particular to (a) the above findings regarding the process adopted by the respondent/ Mr Osborne for the preparation of the witness statements (b) that GS and SC have both confirmed in their evidence to the Tribunal that the factual basis of their statements remained unchanged and that any amendments were confined to stylistic improvements to formatting and grammar and (d) the Tribunal’s reasons at paragraph 79.5 above.

[80]In all the circumstances, the majority of the Tribunal is not satisfied that the claimant has established the factual basis for allegation 6 (c) of the letter dated 3 January 2019. The minority of the Tribunal is however satisfied, for the reasons set out in the minority judgment attached at Annexe A, that the claimant has established the factual basis for allegation 6 (c) of the letter dated 3 January 2019. The majority of the Tribunal disagrees with the minority judgment for the reasons set out above. The proposed determination of the claimant’s application dated 22 June 2018 – the provisional view of the majority of the Tribunal.

[81]It was agreed with the parties at the conclusion of the hearing on 6 November 2019, that:-(a) the Tribunal would set out in this reserved judgment its provisional view of the proposed determination of the claimant’s application dated 22 June 2018 in the light of its findings in respect of the matters identified at paragraph 6 of the letter dated 3 January 2019

(b) such provisional view would however be subject to the parties (but not the participant who has no wider interest in this case) being given an opportunity to make written representations regarding the proposed outcome of the claimant’s application dated 22 June 2018 before any final determination was made by the Tribunal. The provisional view of the majority of the Tribunal is accordingly set out below.

[82]The Tribunal stated in the letter dated 3 January 2019 that: - 82.1. The remit of the reconsideration hearing would be strictly limited to the determination of the issues identified at paragraph 6 of that letter including that it would be for the claimant to satisfy the Tribunal at such hearing that(a) the respondent/its representatives had committed such alleged misconduct and

(b) that in such circumstances it was, in any event, necessary in the interests of justice for part or all of the Judgment relating to the claimant’s discrimination claims to be varied or revoked (paragraph 7 at pages 200- 201 of the bundle). 82.2. The Employment Judge was satisfied in respect of the remaining matters raised in the application dated 22 June 2018 that there was no reasonable prospect of the Judgment being revoked or varied and that the claimant’s application in respect of such matters was refused for the reasons given at paragraph 8 of the letter dated 3 January 2019 (at page 201 of the bundle). 82.3. The claimant has an extant appeal to the Employment Appeal Tribunal in which she will be entitled, to the extent permitted by that tribunal, to pursue any alleged errors of law or perversity by the Tribunal in respect of its findings in the Judgment.

[83]In all the circumstances, the majority of the Tribunal does not, subject to any further written representations, consider, that it is necessary in the interests of justice for the purposes of Rule 70 of the 2013 Rules, to revoke or vary any part of the Judgment relating to the claimant’s discrimination claims for the following reasons: - 83.1. The claimant has failed, for the reasons explained above, to establish the factual basis for the allegations identified at paragraph 6 of the letter dated 3 January 2019 save that(a) there was some discussion by Miss Low of the evidence at the Tribunal hearing on 25 April 2018 (paragraphs

55.1 –

55.2 above) and

(b) in respect of SC’s comments on 8 July 2018 (paragraph 67 .10 above). 83.2. The Tribunal is not however satisfied, for the reasons explained in particular at paragraphs 55.2 – 56 above, that Ms Low sought to coach the witnesses and/or to bring any pressure to bear on them to change their evidence as alleged by the claimant. 83.3. Further, notwithstanding that Tribunal accepts that SC made the comment to the claimant on 8 July 2018 referred to at paragraph 67.10 above, the majority of the Tribunal is not satisfied for the reasons explained, in particular at paragraphs 55- 56 and 79 above, that the claimant has established the veracity of such allegation. 83.4. Having regard to the overall findings of the Tribunal set out above, the claimant has not established any new evidence in respect of the matters identified at paragraph 6 of the letter dated 3 January 2019 which make it necessary in the interests of justice to revoke or vary any part of the Tribunal’s findings in the Judgment relating to the claimant’s discrimination claims. The provisional view of the majority of the Tribunal is therefore that the claimant’s application dated 22 June 2018 should be dismissed.

[84]The provisional view of the minority of the Tribunal is however that(a) the findings of the Judgment of the Tribunal dismissing the claimant’s discrimination claims should be revoked and

(b) the respondent’s response in respect of such claims should be struck out for the reasons given in the minority judgment. The majority of the Tribunal disagree with the provisional view of the minority of the Tribunal for the reasons set out above. Way forward

[85]The parties have 14 days from the date of the issue of this judgment in which to make any written representations to the Tribunal (with a copy to the other party) regarding the provisional views of the Tribunal regarding the proposed determination of the claimant’s application dated 22 June 2018. The parties will also have 7 days thereafter in which to respond to any matters arising from the other’s representations. Any written representations should be strictly limited to the proposed determination of the claimant’s application dated 22 June 2018 in the light of the findings of the Tribunal regarding the matters identified at paragraph 6 (a) – (c) of the Tribunal’s letter dated 3 January 2019.

[86]If the parties (or either of them) fail to provide written representations within the timescales identified above the Tribunal will (unless it decides otherwise) make a final determination of the claimant’s application dated 22 June 2018 without further notice to the parties.

[1]Remitted Issue 11.1 The claimant was not subjected to direct sex discrimination in relation to the allegations set out in Issue 7i).

1.2 The claimant was subjected to direct sex discrimination in relation to the allegations set out in Issue 11v).

[2]Remitted Issue 2 – The direct sex discrimination in relation to the allegations set out in Issue 11v) sufficiently influenced the overall repudiatory breach so as to render the claimant’s constructive dismissal discriminatory.

[3]The claimant was therefore unlawfully discriminated against by the respondent in breach of sections 11,13 and 39 (2) (d) of the Equality Act 2010 in respect of her constructive dismissal. The nature of the Hearing

[1]The hearing was conducted as a “hybrid” remote hearing. Two members of the Tribunal panel (Employment Judge Goraj and Mrs Richards) attended the hearing centre. The remaining member (Mr Mc Auliffe) and the parties attended by video conference. A fully in person hearing was not held because: -(a) of the ongoing Covid situation

(b) the nature of the matters to be determined did not require oral evidence and

(c) that it was therefore in the interests of justice and in accordance with the overriding objective to proceed in such manner including to minimise expenditure on time and costs. BACKGROUND The Claims and ACAS Early Conciliation

[2]The claimant was employed by the respondent as an apprentice/ trainee hairdresser from September 2012 until 19 January 2017.

[3]By a claim form which was presented to the Tribunals on 20 June 2017 the claimant brought claims for :-(a) unlawful discrimination on the grounds of pregnancy and maternity and/or sex contrary to sections 11, 13 and /or 18 of the Equality Act 2010 (“the 2010 Act”) and/or

(b) constructive unfair dismissal contrary to section 95 of the Employment Rights Act 1996 (“the Act”) and/or

(c) less favourable treatment on the grounds of her part time status. Claim (c) was subsequently dismissed upon withdrawal by the claimant.

[4]The claimant contacted ACAS pursuant to the Early Conciliation process. The ACAS Early Conciliation Certificate recorded that the claimant’s EC notification was received by ACAS on 7 April 2017 and that the EC Certificate was issued by ACAS, by email, on 21 May 2017. The response

[5]The claims were resisted by the respondent on the merits and also on the grounds that Tribunal did not have jurisdiction to entertain the majority of the claimant’s discrimination claims as they were brought outside the relevant statutory time limits. Subsequent case management

[6]The matter was the subject of a number of case management preliminary hearings including on 23 August 2017, with an associated order which was sent to the parties on 6 September 2017 (“the Order”), in which the issues were then identified (paragraphs 2, 4 and 6- 18 of the Order (page 42 of the bundle). The issues to be determined by the Tribunal were subsequently confirmed/ clarified at the commencement of the liability hearing as recorded at paragraphs 10- 12 of the Liability Judgment (pages 49- 50 of the bundle). The liability hearing

[7]The liability hearing took place over 4 days on 23 – 26 April 2018 with the Tribunal deliberating in Chambers on 27 April 2018. The Tribunal heard oral evidence from 16 witnesses. The liability Judgment

[8]The Tribunal subsequently issued a reserved Judgment (dated 4 June 2017 and issued on 8 June 2018) (“the Liability Judgment”).

[9]The relevant findings of the unanimous judgment of the Tribunal in the Liability Judgment were that :-(a) the claimant’s complaints of unlawful discrimination on the grounds of pregnancy and maternity and /or sex contrary to sections 11, 13 , 18 and 39 of the 2010 Act were dismissed and

(b) the claimant was however constructively dismissed pursuant to sections 95 (1) ( c) of the Act.

[10]The Tribunal’s findings of fact are at paragraphs 16 – 96 of the Liability Judgment (pages 51 – 69 of the bundle). The Tribunal’s findings in respect of the pregnancy and maternity / sex discrimination claims.

[11]The Tribunal held in the Liability Judgment that the claimant had failed to establish a prima facie case of unlawful direct pregnancy and maternity and/or sex discrimination save in respect of two of the alleged acts of discrimination, namely: -11.1 Issue 7i of the Order - On 27 May 2015 the claimant was told that she had failed her trade test (alleged discriminators Mr Hill, Mrs Delaney and Miss Low) (“Issue 7i”), (paragraphs 113 and 114 of the Liability Judgment). The Tribunal held at paragraph 114 of the Liability Judgment that, for the reasons set out in that paragraph, the claimant had established a prima facie case that her pregnancy was an effective cause of the failure of her trade test (paragraph 114.5) (pages 72-73 of the bundle).

11.2 Issue 11 v) of the Order – Mr Hill behaved in a cold way towards the claimant (paragraph 22 of the particulars of claim) (“Issue 11v”) (paragraphs 119 and 120 of the Liability Judgment). The Tribunal held at paragraph 120 of the Liability Judgment that, for the reasons set out in that paragraph, the claimant had established a prima facie case that her pregnancy was an effective cause of Mr Hill’s failure to request her to undertake additional duties and to engage/ speak with her prior to her departure on maternity leave (paragraph 120. 5) (page 74 of the bundle).

[12]The Tribunal did not however, go on to consider whether the respondent had given a satisfactory explanation for the above treatment for the purposes of section 136 of the 2010 Act as it was not satisfied that such claims had been brought within the relevant statutory time limits (either as part of a continuing act for the purposes of section 123 (3) of the 2010 Act or that it was just and equitable to extend time to allow the them to proceed pursuant to section 123 (1) (b) of the 2010 Act). The Tribunal’s findings in respect of the complaint of constructive unfair dismissal.

[13]The submissions which the parties made at the Liability Hearing in respect of the claimant’s constructive dismissal claim are summarised at paragraphs 153 – 155 of the Liability Judgment.

[14]The Tribunal concluded, in summary, in respect of the claimant’s complaint of constructive unfair dismissal that:-(a) it was not satisfied (for the reasons given in respect of the claimant’s complaints of unlawful discrimination) that the claimant had established a discriminatory course of conduct between May 2015 and 17 January 2017) (paragraph 156 of the Judgment) and/or that there was a conspiracy led by Mr Hill to drive the claimant out of the business (paragraph 160)

(b) that the claimant had however established a number of matters, as set out at paragraph 157- 158 of the Liability Judgment, for which the respondent was not able to show proper cause, and which amounted to a breach of the implied term of trust and confidence not to act in a way which was likely or calculated to destroy or seriously damage the relationship between the parties (paragraph 159 of the Liability Judgment)/ which viewed overall were an effective cause of the claimant’s decision to terminate her employment with the respondent (pages 81-82 of the bundle). Subsequent events

[15]The claimant made an unsuccessful application for reconsideration of the Liability Judgment, on grounds which were unrelated to those subsequently pursued on appeal.

[16]The parties subsequently reached an out of court settlement of the claimant’s constructive unfair dismissal claim. The claimant’s appeal to the Employment Appeal Tribunal

[17]The claimant appealed to the Employment Appeal Tribunal (“the EAT”), against the dismissal of her unlawful pregnancy and maternity/ sex discrimination claims. Following the amendment of the original Notice of Appeal, the claimant was given leave to pursue 3 amended grounds of appeal to a full hearing of the EAT namely: -17.1 - Ground 1 - The Tribunal erred in its approach to the claimant’s claim for discriminatory dismissal contrary to section 39 (2) of the 2010 Act by failing to make the necessary findings to determine the claim and/or failing to appreciate that the discriminatory constructive dismissal was a freestanding complaint that was presented in time.

17.2 – Ground 2 – The Tribunal misdirected itself on the correct approach to determining whether it was just and equitable to extend time on the claimant’s detriment claims which was an error of law.

17.3 – Ground 3 – The Tribunal erred in law by failing to have regard to relevant factors in determining whether it was just and equitable to extend time on the claimant’s detriment claims. The EAT Hearing and Judgment

[18]The claimant’s appeal to the EAT was heard by The Honourable Mr Justice Cavanagh on 4 March 2021 with judgment being handed down on 1 April 2021 (“the EAT Judgment”). The EAT Judgment is at pages 84 to 120 of the bundle. Grounds 2 & 3 of the appeal

[19]The EAT dismissed grounds 2 and 3 of the appeal for the reasons set out at paragraphs 84 to 93 of the EAT Judgment. Ground 1 of the appeal

[20]The EAT rejected the claimant’s contentions that the allegations at Issue 7 i) and Issue11 v) were, taken alone, sufficient to amount to a constructive dismissal for the reasons explained at paragraph 66 of the EAT Judgment (including as the claimant had affirmed her contract of employment in the period between the events in May to October 2015 and her resignation on 19 January 2017).

[21]The EAT however:-(a) considered that the Issues as recorded at paragraph 12.2 of the Liability Judgment were also broad enough to encompass a claim that the series of events and incidents taken together, resulted in a discriminatory constructive dismissal (paragraph 74 of the EAT Judgment)

(b) held that the Liability Judgment did not address and dismiss the discriminatory constructive dismissal claim and further that the Tribunal did not apply its mind to whether the matters which were set out at paragraph 157 of the Liability Judgment, which gave rise to the constructive dismissal, were sufficiently influenced by sex discrimination so as to render the constructive dismissal itself an act of sex discrimination (paragraphs 75 - 78 of the EAT Judgment) (pages 111 - 113 of the bundle).

[22]In the light of the above, the claimant’s appeal was allowed on Ground 1 only and was remitted to the same Tribunal to determine the following issues (paragraph 96 of the EAT Judgment - 119-120 of the bundle) :-22.1 Whether the claimant suffered direct sex discrimination in relation to the allegations set out in Issues 7 i and 11 v?

22.2 In the light of the Tribunal’s findings on 22.1, whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory?

[23]The EAT further directed that it was for the Tribunal to decide whether it could decide such matters without further evidence or whether it wished to admit further evidence.

[24]The above matters were recorded in the EAT’s Order dated 10 May 2021. Preparation for this Hearing

[25]Following the remission of the matter back to the Employment Tribunal, the Regional Employment Judge sent to the parties on 23 April 2021 a request for comments on the proposal that, unless either party disagreed, no fresh evidence would be adduced at the Remissions Hearing. Neither party disagreed with such proposal.

[26]By an order dated 3 June 2021, Employment Judge Goraj gave further directions in respect of the preparation for the Remissions Hearing. In order to assist the parties to resolve this longstanding matter, Employment Judge Goraj included a proposal that if the claimant succeeded at such hearing the Tribunal would , having regard to the matters identified in that order (including that the parties had already reached a settlement of the claimant’s constructive dismissal claim), go on to deal with remedy on the basis that it would be dealt with by way of submissions only – which proposal was accepted by the parties.

[27]It subsequently became clear however, from the later correspondence between the parties that there were significant differences between the parties on the question of remedy which would require further documentary and oral evidence in order to make formal findings of fact. Employment Judge Goraj therefore directed by Order dated 20 August 2021, that if the claimant was successful at the Remissions Hearing the determination of remedy would be considered at a separate hearing. The Order dated 20 August 2021 also contained a provisional timetable for the conduct of the Remissions Hearing. The Bundle

[28]The Tribunal has been provided with an agreed bundle of key documents/ statements (from the Liability Hearing) (“the bundle”). The Tribunal has also, with the agreement of the parties, had regard to the following documents which were available at the Liability Hearing: -(a) the statement of Louise Allan and

(b) the documents at 45 – 55 of the original remedy bundle ( relating to the claimant’s trade test/ associated matters). The written submissions of the parties

[29]The Tribunal has also been provided with helpful written submissions by the parties which are set out in summary below The claimant’s submissions Issue 7 i) - On 27 May 2015 the claimant was told she had failed her “ trade test”

[30]In summary, the claimant relied upon the following written submissions: -30.1 The Tribunal set out at paragraph 114 of the Liability Judgment (page 73 of the bundle) the basis upon which it was satisfied that the claimant had established a prima facie case that her pregnancy was an effective cause of the failure of her trade test. Therefore, it is for the respondent to show for the purposes of section 136 (3) of the 2010 Act that it did not contravene section 39 (2) (d) of the 2010 Act by discriminating against her by subjecting her to that detriment.

30.2 The Tribunal however characterised the respondent’s evidence on such matters in the Liability Judgment as inconsistent and unclear and that it was unable to make any findings of fact regarding the respondent’s discussions regarding the outcome of the claimant’s trade test including whether it was taken by Miss Low alone (paragraphs 50 and 114.4 of the Liability Judgment).

30.3 The claimant submits that it necessarily follows from paragraph 50 of the Liability Judgment that the respondent has failed to show that it did not contravene section 39 (2) (d) of the 2010 Act as the respondent has failed to adduce sufficiently probative evidence to establish any reason for failing the trade test other than pregnancy.

30.4 The claimant relies on paragraph 13 of the “Barton guidelines” contained in Barton v Investec Securities Limited

[2003] ICR 1205

, EAT as approved in Igen v Wong

[2005] ICR 931

,CA (including that a Tribunal would normally expect cogent evidence to discharge the burden of proof).

30.5 It is clear from the findings of the Tribunal that Miss Low’s evidence about the outcome of the trade test was not accepted by the Tribunal including as to whether it was her decision alone to fail the claimant. Further, as the Tribunal was unable to identify with sufficient certainty the decision maker or makers it could not have been satisfied about the veracity of the reason given by Miss Low (paragraphs 49 and 50 of the Liability Judgment).

30.6 A respondent who cannot prove how a decision was taken, in circumstances where the evidence was not coherent or consistent enough to enable it to make the relevant findings of fact, will be unable to prove that the treatment “was in no sense whatsoever on the grounds of sex as required pursuant to paragraph 11 of the Barton guidelines.

30.7 The Tribunal should therefore find that the claimant has been discriminated against in respect of the trade test element of the constructive dismissal claim. Issue 11 v) Mr Hill behaved in a cold way towards the claimant (paragraph 22 of the particulars of claim).

30.8 The claimant contends that there is no possibility of the respondent proving that it did not discriminate against the claimant regarding such conduct having regard to the findings at paragraphs 25 (standing with Mr Hill), 26 – 27 (Mr Hill’s scissors), 62 (the admissions/ lack of explanation offered by Mr Hill) and 63.1 ( the cooling by Mr Hill of his relationship with the claimant when he became aware of her pregnancy). In the light of such matters the respondent cannot show that such detrimental treatment was “in no sense whatsoever” on the grounds of sex.

30.9 The Tribunal should therefore find that the claimant has been discriminated against by the respondent in respect of the cold way in which Mr Hill acted towards the claimant after he became aware of her pregnancy. The claimant’s constructive dismissal claim Remitted Issue 2

30.10 The Tribunal accepted the claimant’s oral evidence that the reasons for bringing her employment to an end had included the cold shouldering specifically referred to at paragraph 95 of the Liability Judgment.

30.11 It is assumed that the Tribunal also accepted all of the reasons given in the claimant’s resignation given in the claimant’s resignation at paragraph 94 of the Liability Judgment

30.12 The claimant relies on the guidance contained in paragraphs 68 and 69 of the EAT Judgment (pages 108 -109 of the bundle) including :-

(a) in principle a “last straw” constructive dismissal can amount to unlawful discrimination if some of the matters relied upon, that are not the last straw itself, are acts of discrimination

(b) regarding the causation tests cited at paragraphs 89 and 90 in the EAT Judgment of Williams v Governing Body of Alderman Davis Church in Wales Primary School

[2020] IRLR 589

EAT ( preferring the test of sufficiently influenced)

(c) it is a matter of degree, and for the Tribunal to decide on the facts of the case, as to whether discriminatory contributing factors render the constructive dismissal discriminatory paragraph 69 of the EAT Judgment).

30.13 Further, paragraph 69 of the EAT Judgment is consistent with the existing understanding that the discrimination must have been a significant or more than trivial influence on the detrimental treatment so that it was an effective reason or cause for it – as referred to in Pnaiser v NHS England

[2016] IRLR 170

30.14 On the Tribunal’s findings, Issues 7i and 11 v had more than a trivial influence on the claimant’s decision to terminate her employment with the respondent. They formed part of a cumulative sequence of events which taken together amounted to a breach of the implied term of trust and confidence and could not be described as minor or peripheral.

30.15 The claimant’s constructive dismissal was therefore directly discriminatory because of her sex. The respondent’s submissions

[31]In summary, the respondent relied upon the following written submissions in respect of the remitted issues: - Remitted Issue 1 – Whether the claimant was subjected to direct sex discrimination in relation to Issues 7i and 11 v31.1 Remitted Issue 1 is limited to the determination of whether or not either (or both) of the “straws” relied upon by the claimant in her discriminatory constructive dismissal claim were acts of direct sex discrimination such as to have the potential to render the constructive dismissal an act of direct sex discrimination.

31.2 The Tribunal is required to apply the burden of proof pursuant to section 136 of the 2010 Act in the light of the findings contained in the Liability Judgment and the key evidence.

31.3 The application of the burden of proof pursuant to section 136 of the 2010 Act was recently considered by the Supreme Court in Efobi v Royal Mail Group Limited [ 2021] IRLR 811 including in particular that:-

(a) section 136 of the 2010 Act did not eliminate the need for the claimant to prove facts on the balance of probabilities from which an inference of discrimination could be drawn. The Tribunal must take into account, in addition to the facts adduced by the claimant, any facts proven by the respondent which would prevent any inference from being drawn

(b) at the second stage of the burden of proof the employer’s explanation does not have to satisfy an objective standard of reasonableness or acceptability. Further it does not matter that the employer had acted for an unfair or discreditable reason as long as the reason had nothing to do with the protected characteristic and

(c) that it is important not to make too much of section 136 where the Tribunal is in a position to make positive findings on the evidence.

31.4 Whilst it is accepted that the Employment Tribunal has found that the respondent has not shown proper cause for its conduct in relation to the matters which are the subject of Issues 7i and 11v (paragraph 158 of the Liability Judgment)/ found that the claimant has established a “prima facie” case, the Employment Tribunal should still carefully examine the explanations of the alleged discriminators as set out in their witness statements and oral evidence before the Tribunal.

31.5 Issue 7i - the relevant decision maker was Miss Low who gave evidence that the failure of the trade test was due to the unbalanced haircuts (paragraph 113 of the Liability Judgment). The fact that the Employment Tribunal has already found the evidence of relevant witnesses in respect of this issue to be inconsistent or unclear does not necessarily lead to a finding that the notification that the claimant had failed her trade test was an act of sex discrimination if the explanations were not related to her protected characteristic of sex.

31.6 Issue 11 v - the relevant decision maker was Mr Hill who accepted in evidence that he had not signed the claimant’s leaving card or made any attempt to speak to the claimant before her departure on maternity leave (paragraphs 61- 63 and 119-120 of the Liability Judgment). The allegations that Mr Hill had sought to prevent staff from buying flowers for the claimant or that he had failed to enquire about the claimant’s welfare after she had fainted at work were not, however upheld. Other matters

31.7 When assessing the respondent’s explanations the Tribunal should take into account that it rejected in the Liability Judgment :- (a) the claimant’s case of a widespread and systematic conspiracy on the part of management to drive the claimant out of the respondent because of pregnancy/ maternity / the case of a course of conduct (paragraphs 14 and 140 of the Liability Judgment) and (b) the claimant’s case on a just and equitable extension of time (paragraphs 148- 149 of the Liability Judgment). Further, the Tribunal should take into account that one of the reasons given in the Liability Judgment for not granting the claimant an extension of time to pursue her discrimination claims was the prejudice caused to the respondent by the delay in issuing the claim and consequential adverse effect on the cogency of the evidence ( in respect of which the respondent’s witnesses were required to give evidence about matters which took place 2 ½ - 3 years after the events in question).

31.8 In the light of the above, the respondent contends that the respondent’s explanations should be taken at face value – whilst they might not be cogent or demonstrate proper cause they are not tainted by unlawful discrimination. Further, there is no scope to make adverse inferences given the evidential disadvantage faced by the respondent as a result of the claimant’s decision to delay bringing her claims in respect of Issues 7i and 11v.

31.9 Remitted Issue 1 should therefore be determined in the respondent’s favour and the remaining discrimination claim dismissed. Remitted Issue 2 – in the light of the Tribunal’s finding on Remitted Issue 1 – whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory?

31.10 If the claimant is successful in relation to Remitted Issue 1, the determination of Issue 2 is a qualitive matter for the Employment Tribunal to evaluate on the evidence in the light of the guidance of the EAT in Williams v Governing Body of Alderman Davies Church in Wales Primary School [ 2020] IRLR 589 (paragraphs 89 and 90) as explained in the EAT Judgment at paragraphs 68 and 69.

31.11 The respondent contends that even if the claimant is successful in establishing Issue 7i and /or 11 v as proven acts of direct sex discrimination they did not materially contribute to the overall repudiatory breach so as to render the constructive dismissal an act of unlawful discrimination.

31.12 Four of the matters relied upon by the claimant as being causative of her decision to resign (paragraphs 94 and 95 of the Liability Judgment) were capable of contributing to the breach of the implied term of trust and confidence ( paragraph 157 of the Liability Judgment) namely :- (a) the trade test incident in 2015 (Issue 7i)(b) Mr Hill behaved in a cold manner towards the claimant following the announcement of her pregnancy in May 2015 (Issue 11v) (c) Mr Hill demeaned and embarrassed the claimant by comparing her to Vicki Pollard at a trainee briefing in December 2016 and

(d) the last straw “dog poo” incident on 17 January 2017.

31.13 The Tribunal’s findings at paragraph 158 of the Liability Judgment are crucial to the analysis of Remitted Issue 2 as there is no mention of issues 7i and 11v being of particular weight or importance in the Tribunal’s assessment of the overall breach of the implied term of trust and confidence.

31.14 This is consistent with the chronology of the case as the claimant did not act on the matters giving rise to Issues 7i and 11 v at the relevant time and was absent thereafter on maternity leave from 18 October 2015 until the end of August/ beginning of September 2016 (paragraph 65 of the Liability Judgment).

31.15 Stepping back and reviewing the breach of the implied term of trust and confidence in the round, it was the matters that occurred after the claimant’s return from maternity leave that crystallised the claimant’s constructive dismissal and were the true cause thereof rather than the historic matters of Issue 7i and 11v. This conclusion is consistent with the finding of the EAT (at paragraph 66 of the EAT Judgment) that the claimant had affirmed her contract of employment in the period between the events in May to October 2015 and her eventual resignation on 19 January 2017.

31.16 In all the circumstances, the claimant’s constructive dismissal was not materially influenced by either Issue 7i) or 11v) and was not therefore an act of direct sex discrimination. The claimant’s residual complaint of direct sex discrimination should therefore be dismissed. The oral submissions of the parties

[32]The Tribunal has also had regard to the further oral submissions of the parties which are included with our findings/ conclusions as summarised as part of our Conclusions below.

The Law

[33]The Tribunal has had regard in particular to: -(a) the provisions of sections 11, 13, 18 and 39 (2) (d) and 136 of the 2010 Act

(b) the Guidance contained at paragraphs 15.32 – 15.36 of the Equality and Human Rights Commission: Code of Practice on Employment 2011, relating to the burden of proof

(d) the further authorities referred to above. THE CONCLUSIONS OF THE TRIBUNAL Remitted Issue 1 – Was the claimant subjected to direct sex discrimination in relation to the allegations set out in Issues 7i) and 11 v) Issue 7i (the failure of the trade test)

[34]In brief summary, the claimant further contended in oral submissions in respect of Issue 7i) that: -(a) the Tribunal made trenchant criticisms in the Liability Judgment of the respondent’s evidence on this matter. The Tribunal found the respondent’s evidence to be inconsistent and confused to the extent that it was unable to reach any clear findings regarding the decision-making process or the reasons for the failure of the claimant’s trade test

(b) the respondent has invited the Tribunal to go back to the witness statements however, if the Tribunal did not find the answer last time it will not find it now. In the light of the findings in the Liability Judgment regarding the decision- making process and the reasons for the failure, the respondent cannot establish a non-discriminatory reason for the treatment.

[35]General background - the latest statement of the law on the burden of proof is contained in the Judgment of the Supreme Court in Efobi which confirmed that there is no change in the law by reason of the enactment of section 136 of the 2010 Act. The respondent accepted, after discussion with the Tribunal, that the Tribunal had decided in the Liability Judgment that the claimant had established a prima facie case of pregnancy/ maternity / sex discrimination and that stage 1 of the test had therefore been met for the purposes of section 136 (2)/(3) of the 2010 Act. The respondent contended however, that the Tribunal had yet to consider the explanation of the respondent for the purposes of stage 2. The Tribunal is required to make an assessment for the purposes of stage 2, of the quality of the explanation. Further, it is clear from the observations in Efobi that the respondent’s explanation does not have to be reasonable/ that it does not matter that the respondent acted for a discreditable reason – it is sufficient if it is not tainted by discrimination.

[36]Issue 7i ) – The respondent contended that the Tribunal is required to consider this issue in the light in particular of paragraphs 113 and 114 of the Liability Judgment including the respondent’s explanation recorded at paragraph 113 as the issue has only been considered so far for the purposes of stage 1 of section 136 of the 2010 Act. In respect of paragraph 114.4 of the Liability Judgment the Tribunal has to ensure that it has all matters properly in mind when deciding whether to draw adverse inferences. The Tribunal is required to revisit for such purposes the questions relating to the relevant decision maker / reasons for the decision/ limited feedback in the light in particular of paragraphs 49 – 50 and 52 of the Liability Judgment in order to determine whether they were tainted by discrimination. The Tribunal should also have regard in particular to: -(a) the statements of Gemma Low and Mrs Delaney regarding such matters

(b) the documents at pages 49 – 51 of the original Liability Bundle which contain Gemma Low’s typed up notes of the assessors’ comments and

(c) paragraphs 54 of the Liability Judgment (in which the Tribunal accepted that notes were a broadly accurate account of what was written by the assessors) and paragraph 58 of the Liability Judgment. Issue 11 v) Mr Hill behaved in a cold way to the claimant between May and October 2015

[37]In summary, the claimant further contended in respect of Issue 11 v that :-(a) not speaking to the claimant before she went on maternity leave – it is not possible for the Tribunal to find an explanation because the respondent did not provide one for such treatment

(b) not requesting the claimant to stand by him – since the respondent denied this outright it is impossible for the respondent to provide a reason now and

[38]In summary, the respondent further contended that the Tribunal is required to consider Issue 11 v for the purposes of stage 2 in the light in particular of:-(a) paragraphs 61 – 63 and 119 -120 of the Liability Judgment (pages 59 -60 and 174 of the bundle) and

(b) the explanations given by Mr Hill in his witness statement at page 130 of the bundle (including paragraphs 17 and 21). Issues 7i and 11v

[39]The Tribunal was further asked by the respondent to take into account in respect of both Issues 7i) and 11v) that :-(a) the Tribunal rejected in the Liability Judgment that there had been a course of discriminatory conduct by the respondent including that there had been an orchestrated conspiracy to remove the claimant from the business (paragraph 140 of the Judgment – page 78 of the bundle ) and

(b) the findings that the Tribunal made at paragraphs 148 and 149 of the Liability judgment (pages 79 and 80 of the bundle) regarding the cogency of the evidence when assessing the quality of the respondent’s explanation for the purposes of stage 2 of section 136 of the 2010 Act . The respondent contended that the Tribunal should take into account that the person in control of the “ starting pistol” in these proceedings was the claimant. The claimant’s decision to delay the commencement of the proceedings meant that the respondent was required to give evidence regarding matters which had occurred 2 ½ / 3 years earlier and the question of inferences should therefore be considered against this background. THE TRIBUNAL’S CONCLUSIONS REGARDING REMITTED ISSUE 1

BACKGROUND

[40]The Tribunal held at paragraph 114.5 of the Liability Judgment that it was satisfied, in the light of the facts recorded at paragraphs 114.1 – 114.4, (pages 72- 73 of the bundle), that the claimant had established a prima facie case that her pregnancy was an effective cause of the failure of her trade test (Issue 7i).

[41]The Tribunal further held at paragraph 120.5 of the Liability Judgment that it was satisfied, in the light of the facts recorded at paragraphs 120.1 – 120.4 (page 74 of the bundle), that the claimant had established a prima facie case that her pregnancy was an effective cause of: -(a) Mr Hill’s failure to request her to undertake additional duties and

(b) to engage / speak with the claimant prior to her departure on maternity leave.

[42]In such circumstances, the Tribunal is satisfied that, in respect of both Issues 7i) and 11 v), the claimant has, for the purposes of section 136 (2) of the 2010 Act, established such facts from which the Tribunal could decide, in the absence of any other explanation, that the respondent had contravened the 2010 Act.

[43]The Tribunal is further satisfied in the light of the legal authorities referred to above (and this was also accepted by the parties) that, in respect of both allegations:-(a) the burden of proof has therefore passed to the respondent to prove that it did not commit any such act pursuant to section 136 (2)/ (3) of the 2010 Act

(b) in order to discharge such burden, it is necessary for the respondent to establish, on the balance of probabilities, that the treatment was in no sense whatsoever because of pregnancy / sex and

(c) as part of such process, the Tribunal is required to assess not only whether the respondent has provided an explanation from the facts from which inferences could be drawn but further, that it is adequate to discharge the burden of proof, on the balance of probabilities, that pregnancy/ sex was not a ground for the treatment in question and

(d) that if the respondent fails to discharge such burden the Tribunal must hold that the respondent has discriminated against the claimant. THE CONCLUSIONS OF THE TRIBUNAL ON ISSUE 7i

[44]The Tribunal has considered first (paragraph 96 of the EAT’s Judgment) (pages 119 – 120 of the bundle) :- “Whether the claimant suffered direct sex discrimination in relation to Issue 7 i) “That on 27 May 2015 the claimant was told that she had failed her trade test”. The alleged discriminators for the purposes of this issue are Mr Hill, Mrs Delaney and Miss Low).

[45]The Tribunal has had regard, as a starting point, to the provisions of paragraphs 113 and 114 of the Liability Judgment (pages 72 and 73 of the bundle) (the prima facie case) and associated findings together with the respective written and oral submissions of the parties as summarised above.

[46]The Tribunal has considered whether, in the light of the prima facie findings at paragraph 114 of the Liability Judgment,(a) the respondent has nevertheless provided an explanation for the failure of the claimant’s trade test in May 2015 and

(b) if so, whether such explanation is also adequate to establish that the treatment was, on the balance of probabilities, in no sense whatsoever because of pregnancy/ sex.

[47]The respondent contends that the reason why the claimant failed her trade test was because Miss Low, who was responsible for training at the relevant time, concluded that her work was not of the necessary standard, including in particular in respect of the quality of her haircuts (which were unbalanced), and that Mr Hill and Mrs Delaney accepted such assessment. The respondent relied in particular on the explanations given by Ms Low in her written and oral evidence and on the documentary, evidence contained in the notes at pages of 49 - 51 of the Liability bundle.

[48]Having given careful consideration to the proven facts and to the explanations given by the respondent, the Tribunal is satisfied that the respondent has established, on the balance of probabilities, for the purposes of section 136(2)/(3) of the 2010 Act the following: -48.1 The claimant took a trade test on 11/12 May 2015 at which her work was assessed by a number of assessors including Ms Low. (paragraphs 36,40 and 41 of the Liability Judgment – pages 55- 56 of the bundle).

48.2 The claimant’s colleague Ms E Waldron also took her trade test on 18/ 19 May 2015 and was subject to a similar process (paragraph 36 of the bundle).

48.3 The assessors made manuscript notes of their assessments which were given to Ms Low. Miss Low subsequently typed up the manuscript notes of the claimant’s assessments (on or around 3 June 2015), in order to explain to the claimant/her father the reasons why the claimant had failed her trade test. This document, which is at pages 49- 51, of the Liability Judgment, is a broadly accurate record of the manuscript notes of the assessors’ assessment of the claimant’s work (paragraph 54 of the Liability Judgment – page 58 of the bundle).

48.4 The document at pages 49 – 51 of the Liability Judgment records a number of criticisms of the claimant’s work including: -

(a) that, in the case of 3 models, the cuts were unbalanced (the assessments of Ms Low and Lois) and

(b) in respect of a male model the claimant required further guidance on the use of the comb and scissors and the choice of products (Josh). The Tribunal further accepts the explanation given by Ms Low in her oral evidence to the Liability Tribunal that unbalanced cuts could be damaging to the reputation of the respondent as a 5-star salon.

48.5 The respondent (including Gemma Low) was unaware of the claimant’s pregnancy at the time of the above assessments and did not become aware of it until 18/ 20 May 2015 (paragraph 47 of the Liability Judgment and pages 56- 57 of the bundle).

48.6 There was a subsequent brief discussion/ meeting between Mr Hill, Mrs Delaney and Miss Low on or around 23 May 2015 regarding the trade tests of the claimant and her colleague Ellie Waldron following which both of them were informed on 27 May 2015 that they had failed their trade tests. (paragraphs 49, 50 and 51 of the Liability Judgment – page 57 of the bundle ).

[49]The Tribunal has considered the above in the light of :--(a) the Tribunal’s findings at paragraph 114 of the Liability Judgment, including in particular the findings at paragraph 114.4 that the alleged discriminators were unable to give a cogent account of their discussions of on or around 23 May 2015 concerning the outcome of the claimant’s trade test

(b) the explanation given by the respondent for the outcome of the claimant’s trade test namely, that the claimant had failed her trade test because of the quality of her work and in particular her unbalanced cuts as recorded in the notes at pages 49-51 of the Liability bundle and

(c) the respondent’s explanation that the alleged discriminators ( Mr Hill, Mrs Delaney and Ms Low) were unable to give more cogent evidence of their discussions of on or around 23 May 2015 ( concerning the outcome of the claimant’s trade test ) because of the substantial passage of time since such discussions.

[50]Having given careful consideration to all of the above, the Tribunal is satisfied that the respondent has established on the balance of probabilities for the purposes of section 136(2)/ (3) of the 2010 Act that the reason why the claimant failed her trade test was because of the quality of her work and in particular the unbalanced cuts as recorded in the notes at pages 49 – 51 of the Liability Judgment .

[51]When reaching such conclusion the Tribunal has taken into account in particular: -(a) the criticisms relating to the unbalanced nature of the claimant’s cuts which are clearly identified in the assessors’ notes of the claimant’s trade test. The Tribunal further accepts the explanation given by Ms Low, who had responsibility at that time for training, that unbalanced cuts could be damaging to the reputation of the respondent

(b) that the Tribunal was satisfied at the Liability Hearing that such notes (at pages 49 – 51 of the Liability bundle) were a broadly accurate account of the assessors’ original manuscript notes (paragraph 54 of the Liability Judgment – page 58 of the bundle)

(c) the accounts given by the alleged discriminators (paragraph 49 of the Liability Judgment – page 57 of the bundle) of their recollections of the subsequent brief discussions of on or around 23 May 2015 including that it was denied that there was any discussion at that time about the claimant’s pregnancy and

(d) the recognition by the Tribunal at paragraph 148.3 of the Liability Judgment - page 79- 80 of the bundle (in relation to the claimant’s contention that it was just and equitable to extend time to allow issue 7 i) to proceed as a stand-alone allegation of discrimination) that the cogency of the respondent’s evidence concerning their discussions relating to the outcome of the claimant’s trade test was likely to have been adversely affected by the significant passage of time since May 2015 together with the consequential prejudice which would therefore have been caused to the respondent if the claimant had been allowed to pursue such an allegation to which it had not been alerted until January 2017 (nearly two years later). The Tribunal is satisfied that in the light of the above the respondent has provided an adequate explanation for the failure of the claimant’s trade test namely because of the criticisms identified by the assessors (as contained at pages 49 -51 of the Liability bundle).

[52]The Tribunal has therefore gone on to consider whether the respondent has further established, for the purposes of section 136(2)/ (3) of the 2010 Act, that its explanation is also adequate to establish that the treatment was, on the balance of probabilities, in no sense whatsoever because of the claimant’s pregnancy/ sex.

[53]Having given the matter careful consideration, the Tribunal is further satisfied that the respondent has also discharged such burden for the purposes of section 136(2)/ (3) of the 2010 Act. When reaching such conclusion, the Tribunal has taken into account in particular: -(a) the criticisms of the claimant’s performance during the trade test identified in the assessors’ notes at page 49 – 51 of the Liability bundle as referred to above. The Tribunal accepts the contentions of the respondent that this documentary evidence, which is unrelated to the claimant’s pregnancy/ sex, is the most cogent evidence of the claimant’s performance at the time of the test/ the reasons for her failure

(b) further, the respondent ( the assessors including Ms Low) were unaware of the fact that the claimant was pregnant at the time that the assessments were undertaken/ the assessors’ notes were prepared

(c) the alleged discriminators (Mr Hill, Mrs Delaney and Ms Low) deny that there was any discussion about the claimant’s pregnancy during the brief discussions/ meeting on 23 May 2015 regarding the outcome of the trade test of the claimant . Moreover, there was no evidence before the Tribunal to indicate otherwise

(d) Further, such conclusion is consistent with the findings of the Tribunal in the Liability Judgment that there was no evidence of any conspiracy orchestrated by Mr Hill and other senior members of the respondent to drive the claimant out of the business because of her pregnancy/ maternity and finally

(e) Ms Waldron (who was not pregnant) was subject to a similar process and also failed her trade test at/ around the same time as the claimant.

[54]In all the circumstances the Tribunal is satisfied that the respondent has discharged the burden of proof for the purposes of section 136(2)/ (3) of the 2010 Act in respect of Issue 7 i). This means that such conduct does not therefore fall to be taken into account for the purposes of Remitted Issue 2. THE CONCLUSIONS OF THE TRIBUNAL ON ISSUE 11v)

[55]The Tribunal has gone on to consider, for the purposes of paragraph 96 of the EAT’s Judgment - Issue 11v) “Mr Hill behaved in a cold way towards her (paragraph 22 of the particulars of claim)”. The alleged discriminator for the purposes of this issue is Mr Hill.

[56]The Tribunal has had regard to the provisions of paragraphs 119 and 120 of the Liability Judgment (page 74 of the bundle) (the prima facie case) and associated findings together with the respective written and oral submissions of the parties as summarised above.

[57]The Tribunal has considered whether, in the light of the prima facie findings at paragraph 120 of the Liability Judgment: -(a) the respondent has nevertheless provided an explanation for such treatment and

(b) if so, whether such explanation is adequate to establish that the treatment was, on the balance of probabilities, in no sense whatsoever because of pregnancy / sex.

[58]The claimant established on the facts that:-(a) there was a cooling of Mr Hill’s attitude towards the claimant after he became aware of her pregnancy in May 2015

(b) Mr Hill did not request the claimant to stand with him / assist him as previously after he became aware of the claimant’s pregnancy in May 2015 and

(c) Mr Hill did not engage with/ speak to the claimant before she went on maternity leave (paragraphs 63 and 120 – pages 60 and 74 of the bundle).

[59]The claimant also established on the facts that:-(a) prior to the announcement of her pregnancy she was held in high regard by Mr Hill in recognition of which he asked the claimant to stand with him on a regular basis / gave her a pair of his scissors –(paragraphs 25 and 27 of the Liability Judgment)

(b) that he also failed to engage/ speak to Miss Buxton before she went on her maternity leave and

(c) that he acted in such a manner notwithstanding that he stated in his oral evidence to the Tribunal that he made an effort to speak to staff on a daily basis and to speak to them about things that were relevant to them and their lives (paragraphs 21, 62 and paragraph 63.1 of the Liability Judgment – pages 52 and 60 of the bundle).

[60]The Tribunal has considered first allegations (a) and (b) (the cooling of Mr Hill’s attitude towards the claimant and not asking the claimant to stand with him/ assist as previously) in the light of the “explanations” provided by Mr Hill as recorded at paragraphs 62 and 119 of the Liability Judgment and in his witness statement.

[61]Having given careful consideration to all of the above, the Tribunal accepts the contentions of the claimant that the respondent has been unable to provide an explanation for such conduct for the purposes of section 136 (2)/ (3) of the 2010 Act as the respondent denied any such conduct ( which has been established by the claimant on the balance of probabilities) rather than provide an explanation for it (paragraphs 21, 25, 62, 63 119 and 120 of the Liability Judgment – pages 52, 53, 60,74 and 74 of the bundle).

[62]Further as far as allegation (c) is concerned (not engaging with/ speaking to the claimant before she went on maternity leave) Mr Hill accepted that this was the case but did not provide an explanation for such treatment ( paragraphs 62 and 119 of the Liability Judgment).

[63]In the circumstances the Tribunal is satisfied that the respondent has failed to provide an adequate explanation for the conduct alleged at Issue 11 v) for the purposes of section 136 (2)/ (3) of the 2010 Act.

[64]The Tribunal has therefore gone on to consider whether, in all the circumstances, the respondent (alleged discriminator Mr Hill) has unlawfully discriminated against the claimant because of her pregnancy / sex for the purposes of section 136 (2) / (3) of the 2010 Act in respect of Issue 11 v).

[65]The Tribunal is satisfied in the light of :-(a) its findings of fact and, in particular, regarding the nature, timing of the conduct and that it was also displayed to Miss Buxton in similar circumstances and

(b) the failure of the respondent to provide any adequate explanation for such conduct (let alone one that was in no sense whatsoever because of pregnancy/ sex) that it is appropriate to conclude pursuant to section 136 (2)/ (3) of the 2010 Act in respect of Issue11 v), that it constituted an act of unlawful pregnancy/ sex discrimination for the purposes of the claimant’s complaint that her constructive dismissal was discriminatory in breach of section 39 (2) (d) of the 2010 Act. REMITTED ISSUE 2 Remitted Issue 2 : In the light of the Tribunal’s finding in respect of Remitted Issue 1 whether such discriminatory matters (Issue 7i and /or 11 v) sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory?

[66]The claimant further contended that:-(a) the claimant is, as a matter of contract law, entitled to rely on waived historical breaches

(b) it is clear, as a matter of causation, that the failure of the trade test and the “cold shouldering” formed an integral part of the claimant’s decision to resign, both of which are referred to in the claimant’s letter of resignation / the Tribunal’s findings at paragraph 95 of the Liability Judgment

(c) the claimant relies on paragraphs 68 and 69 of the EAT Judgment and the associated test set out in the EAT Judgment in Williams (as referred to above) namely that discriminatory conduct does not have to be the sole or principal cause it is sufficient if it materially or sufficiently influenced the overall repudiatory breach such as to be an effective cause of the constructive dismissal

(d) the failure of the trade test and the “cold shouldering” had a significant, that is a more than minor or trivial, effect on the repudiatory breaches of the respondent / the claimant’s decision to resign and

(e) the question of whether the conduct in question was previously affirmed is irrelevant for such purposes – the Tribunal is required to consider the whole sequence of events and decide whether the discriminatory conduct loomed large enough to have influenced the constructive dismissal.

[67]The respondent further contended that:-(a) the starting point for the consideration of Remitted Issue 2 is paragraphs 68 and 69 of the EAT Judgment at pages 108-109 of the bundle (including its analysis of paragraphs 89 and 90 of Williams).The Tribunal has to consider whether any of the discriminatory matters sufficiently or materially influenced the overall repudiatory breach and also whether they caused the discriminatory dismissal. It is clear from the EAT Judgment that this has to be assessed as a matter of fact and degree and that the Tribunal should consider carefully where it falls on the range

(b) the respondent accepted, in the light of Kaur v Leeds Teaching Hospital NHS Trust 2019,ICR 1 CA, that it does not matter for such purposes whether the discriminatory matters relied upon have previously been affirmed as they can still be relied upon if they subsequently contribute to the constructive dismissal. The question of affirmation is however still relevant as it goes to the weighting of such factors as part of the qualitive analysis of whether they materially/ sufficiently influenced the overall repudiatory breach

(c) the respondent also accepted that the tests of materially or sufficiently influenced are in line with the previously recognised tests of whether the discriminatory conduct had a significant influence, which means more than minor or trivial, effect on the repudiatory breach/ breaches

(d) paragraphs 157 – 159 of the Liability Judgment ( pages 81 – 82 of the bundle) are important to the consideration of Remitted Issue 2. There were 4 matters which the Tribunal found to have contributed to the repudiatory breach of contract which led to the constructive dismissal. The respondent contended that it was the later, rather than the earlier incidents, which effected the overall repudiatory breach and that Issues 7i and 11v had only a minor or trivial influence for such purposes and were not therefore sufficient to render the constructive dismissal an act of discrimination (d) the Tribunal should also take into account for the purposes of the qualitive analysis of whether Issues 7i and /or 11 v materially/ sufficiently influenced the overall repudiatory breach, the overall context/ background to the case including that the Tribunal rejected the claimant’s contentions that there had been a conspiracy to drive the claimant out of the business and/ or that the claimant had established a continuing course of discriminatory conduct (paragraphs 140 and 141 of the Liability Judgment – page 78 of the bundle) and (e ) the respondent contended that the reasons for the claimant’s resignation was the alleged campaign against the claimant following her return to work after her maternity leave as evidenced by the contemporaneous notes of the meeting between Mrs Delaney and the claimant’s father on the 17 January 2017 ( which notes were included in the bundle at the request of the claimant) (page 160 – 161 of the bundle) and (f) in all the circumstances the Tribunal should find that any established discriminatory conduct did not sufficiently/ materially influence the overall repudiatory breach such as to render the constructive dismissal itself an act of discrimination. THE CONCLUSIONS OF THE TRIBUNAL ON REMITTED ISSUE 2

[68]The Tribunal has therefore gone on to consider, pursuant to paragraph 96 (2) of the EAT Judgment, Remitted Issue 2 namely, “In light of the Tribunal’s findings on (1) whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory”.

[69]In the light of our above findings, such “discriminatory matters” are limited to the discriminatory conduct of Mr Hill in relation to Issue 11 v) ( as summarised at paragraph 120.1 – 120.4 of the Liability Judgment (page 74 of the bundle).

[70]When considering Remitted Issue 2, the Tribunal has reminded itself as a starting point of :-(a) the guidance contained at paragraphs 68- 69 of the EAT Judgment (including the EAT authority of Williams relied upon by the EAT) (pages 108 – 109 of the bundle)

(b) the nature of the respondent’s repudiatory conduct as identified at paragraph 157 and 159 of the Liability Judgment (pages 81-82 of the bundle) and the associated analysis of the EAT at paragraphs 71 and 76 of the EAT Judgment at pages 109 -110 and 112 of the bundle).

[71]The Tribunal has further taken into account in particular that:-(a) it was agreed between the parties that,” sufficiently / materially” influenced also means conduct which is more than “ minor or trivial” (or as referred to at paragraph 69 of the EAT Judgment, more than minor or peripheral) and

(b) the fact that the conduct in question may have been affirmed for the purposes of a stand-alone complaint of discrimination does not prevent it from having a sufficient / material influence on the overall repudiatory breaches and

(c) the Tribunal is however required to have regard to the passage of time since the incident in question for the purposes of determining the extent of its influence on the overall repudiatory breaches.

[72]Having given careful consideration to our findings of fact in the Liability Judgment and to the authorities/ guidance and submissions referred to above, the Tribunal is satisfied that conduct identified at Issue 11 v) ( as summarised at paragraph 120 of the Liability Judgment – page 74 of the bundle) sufficiently / materially influenced the overall repudiatory breaches which caused the claimant’s resignation such as to render the claimant’s constructive dismissal an act of sex discrimination.

[73]When reaching such conclusion, the Tribunal has taken into account/ weighed in the balance that the established conduct in respect of Issue 11 v) ( the conduct of Mr Hill after he became aware of the claimant’s pregnancy) was only one of the four alleged acts identified at paragraph 157 of the Liability Judgment (page 81 of the bundle ) and paragraph 76 of the EAT Judgment (page 112) which were found to have contributed to the repudiatory breach of contract which led to the claimant’s constructive dismissal. The Tribunal has further taken into account :-(a) the established discriminatory conduct occurred between May – October 2015

(b) the claimant made no complaint about such conduct until the time of her resignation in January 2017 and

(c) the EAT accepted at paragraph 66 of the EAT Judgment (pages 107 - 108 of the bundle) the claimant had, for the purposes of any free standing claim of unlawful sex discrimination, affirmed her contract in respect of such conduct in view of the fact that she had gone on maternity leave and had then returned to work for approximately 3 ½ months prior to her resignation.

[74]The Tribunal is however satisfied that notwithstanding the above :-(a) the established “ cold shouldering “ treatment which Mr Hill exhibited towards the claimant after he became aware of her pregnancy in May 2015 was a significant act of pregnancy discrimination perpetrated by the proprietor/ figurehead of the business which extended, in part, from May to October 2015 ( when the claimant commenced her maternity leave)

(b) that, notwithstanding the significant passage of time between the discrimination in May – October 2015 and the claimant’s resignation it was nevertheless still regarded by the claimant as one of the “ deepest cuts” of pregnancy / sex discrimination for the purposes of paragraph 71 of the EAT Judgment (page 110 of the bundle) and

(c) that the conduct in question had a more than minor or trivial influence on the overall repudiatory breaches and the claimant’s consequential decision to terminate her employment with the respondent.

[75]When reaching such conclusions, the Tribunal has taken into account in particular :-(a) paragraphs 21, 25 , 27 and 28 of the Liability Judgment – pages 52 – 53 of the bundle ( relating to Mr Hill’s pre-eminent position in the business as its proprietor/ figurehead and the high regard with which the claimant was regarded by him prior to the disclosure of her pregnancy in May 2015)

(b) that the conduct in question extended, in part, over a period of more than 4 months ( May to October 2015)

(c) the passage of time between the alleged conduct and the claimant’s resignation in January 2017 is accounted for in part, by the fact that the claimant was absent from the business on maternity leave for nearly a year during 2015/ 2016 and

(d) the context of the further conduct by Mr Hill towards the claimant in December 2016 in respect of the “Vicki Pollard” incident (paragraphs 82 and 157.5 of the Liability Judgement - pages 64 and 81 of the bundle).

[76]Further, it is clear from the claimant’s letter of resignation dated 19 January 2017 paragraphs 94 (3) and (5) of the Liability Judgment (page 67 – 68 of the bundle) that Mr Hill’s treatment of the claimant in respect of the allegations at Issue 11 v), compared to his previous very positive treatment of her ( asking her to stand with him more than other trainees, speaking to her on a daily basis and presenting her with his scissors) were matters which were still of concern to the claimant and which contributed to the chain of events which led her to resign her employment with the respondent.

[77]Further such conduct (that after Mr Hill became aware that the claimant was pregnant he never asked her to stand with him again and did not speak to her on the last day before she went on maternity leave) was identified by the claimant in her oral evidence at the Liability Hearing, which was accepted by the Tribunal, ( at paragraph 95 (e) of the Liability Judgment – page 68- 69 of the bundle ) as one of the reasons which contributed to her decision to resign her employment with the respondent.

[78]In all the circumstances, and having carefully balanced all of the above, the Tribunal is satisfied that, for the purposes of Remitted Issue 2, the conduct identified at Issue 11 v) sufficiently influenced the overall repudiatory breach so as to render the claimant’s constructive dismissal an act of sex discrimination for the purposes of section 39 (2) (d) of the 2010 Act and the claimant therefore succeeds in this aspect of her claim.