Ms J Morgan v Panelex Wood Agency Ltd and F G Hawkes: 1600173/2025
EMPLOYMENT TRIBUNALS
Case No 1600173/2025
Between
Ms J MorganClaimantPanelex Wood Agency Ltd and F G HawkesRespondent
Before
Employment Judge A WilliamsIn person for claimantMr N Smith (instructed by Counsel) for respondentDate 2 June 2026
JUDGMENT
[1]The claim for unfair dismissal is not well-founded and is dismissed.[2]The claim for wrongful dismissal is not well-founded and is dismissed.[3]The claim for holiday pay (Working Time Regulations 1998) is dismissed on withdrawal.[4]The claim for pregnancy and maternity discrimination (section 18 Equality Act 2010) is well-founded. However, it is out of time. It is not just and equitable to extend time. The claim is dismissed because the tribunal lacks jurisdiction to consider it.[5]The claim for direct sex discrimination (section 13 Equality Act 2010) is not wellfounded and is dismissed.[6]The claim for victimisation (section 27 Equality Act 2010) is well-founded.
REASONS
[1]Following a hearing on the above dates we reserved judgment. We now give our written reasons for the judgment set out above.[2]The Claimant, Ms Jessica Morgan was employed by the First Respondent as a Sales Manager from 2nd April 2020 to 22nd October 2024.[3]By way of an ET1 Claim Form received on 20th February 2025 the Claimant brought claims for unfair dismissal, pregnancy and maternity discrimination, direct sex discrimination, victimisation, unpaid holiday pay and notice pay. She says that the Respondents subjected her to a campaign of discrimination which ultimately led to her dismissal. She also states that following her dismissal and her bringing these proceedings, the Respondent subjected her to a detriment amounting to victimisation.[4]The Respondent denies all claims. It denies any discriminatory comments or conduct. It maintains that the Claimant resigned of her own volition.
The Hearing
[5]On Day 1 we had a reading day. On Day 2 we dealt with a number of disclosure and bundle issues and the Claimant was cross-examined. On Day 3 the Claimant’s cross-examination was concluded. The Claimant cross-examined the Second Respondent Mr Hawkes on Day 3 and 4 and we received written and oral submissions from both the Claimant and Mr Smith. At all stages it was explained to the Claimant what would happen next in the hearing and what was expected of her. Breaks were given to the Claimant between each stage of the hearing to prepare for the next stage.[6]Co-operation between the parties in preparation for the hearing was difficult. During the hearing we dealt with a number of applications for late disclosure, the majority of which the parties were able to agree. We dealt with one application from the Respondent to un-redact certain emails between the Claimant and her son’s school. We directed the Claimant to amend her redactions for reasons given orally during the hearing.[7]We had received in advance of the hearing a bundle of 447 pages and supplementary bundle of 105 pages from the Claimant. We told the parties we had read the pleadings, witness statements, and those documents specifically referred to in witness statements, but that we should be taken to any documents specifically they wanted to rely on.[8]We heard oral evidence from the Claimant and Mr Hawkes only. We explained to the Claimant that the non-attendance of a witness may impact the weight that can be attached to their evidence because the opposing party has not had an opportunity to challenge it in cross-examination. Both parties relied on the witness evidence of witnesses who did not attend the hearing.
List of Issues
[9]The importance of the List of Issues was explained to the Claimant at the beginning of the hearing. Both parties agreed the List of Issues prepared by EJ Brace was correct, subject to one clarification from the Respondent which was that it was not relying on the potentially fair reason of redundancy in relation to the unfair dismissal claim. The Claimant withdrew one allegation of pregnancy and maternity discrimination during the hearing (8.1.3). The holiday pay claim was agreed and paid during the hearing and the Claimant confirmed she wished to withdraw the claim.[10]All parties were agreed that the issues for determination were as follows. We explained to the parties that we needed only hear evidence and submissions relevant to the issues in the List of Issues. The parties agreed that the Hearing should deal with matters relevant to liability only.
List of Issues
[1]Time Limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 10 October 2024 may not have been brought in time.1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Were the unfair dismissal and breach of contract complaints made within the time limit in sections 111 of the Employment Rights Act 1996 and/or Article 7 ET Extension of Jurisdiction (England & Wales) order 1994? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination / act complained of / date of payment of the wages from which the deduction was made?1.3.2 In respect of the unauthorised deductions complaint and if not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.3.4 If it was not reasonable practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[2]Unfair Dismissal2.1 Was the Claimant dismissed? The Respondent says that the Claimant resigned. The Claimant does not claim constructive dismissal.2.2 If the Claimant was dismissed, what was the reason or principal reason for dismissal?2.3 Was it a potentially fair reason?2.4 If the reason was redundancy, did the First Respondent act reasonably or unreasonably in all the circumstances, including the First Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:2.4.1 The First Respondent adequately warned and consulted the Claimant;2.4.2 The First Respondent adopted a reasonable selection decision, including its approach to a selection pool;2.4.3 The First Respondent took reasonable steps to find the claimant suitable alternative employment;2.4.4 Dismissal was within the range of reasonable responses.[3]Remedy for unfair dismissal – not considered at this hearing[4]Wrongful dismissal/Notice pay 4.1 The Respondent accepted that if the Claimant was found to have been dismissed, notice pay is owed.[5]Holiday Pay (Working Time Regulations 1998) – this claim was withdrawn by the Claimant during the hearing having reached an agreement with the Respondent. Unauthorised Deductions – withdrawn[7]Remedy (notice pay, holiday pay) – not considered at this hearing[8]Pregnancy and Maternity Discrimination (Equality Act 2010 section 18)8.1 Did the Respondents treat the Claimant unfavourable by doing the following things:8.1.1 On or around 6 November 2023, when the Claimant offered to do a presentation for a new client, the Second Respondent sniggered and said ‘Nobody wants to see a pregnant person, Jess’?8.1.2 During November 2023, the Second Respondent made comments about the Claimant being forgetful because she was pregnant?8.1.3 [Withdrawn]8.1.4 On or around 15 December 2023, the Second Respondent remarked at a work meeting about the Claimant ‘We at Panelex have no room for a pregnant person, between me and you, she won’t be coming back as she’s becoming difficult to manage’8.1.5 On 15 April 2024, the Claimant’s work email access was removed8.1.6 On the same day, the Claimant noticed that her contact details on the First Respondent’s website had been removed8.1.7 On 26 April 2025, the Claimant again emailed the Second Respondent about KIT days and he refused shortly thereafter8.1.8 Terminate her employment with immediate effect from 22 October8.2 Did the unfavourable treatment take place in a protected period?8.3 If not did it implement a decision taken in the protected period?8.4 Was the unfavourable treatment because of the pregnancy?8.5 Was the unfavourable treatment because of illness suffered as a result of the pregnancy?8.6 Was the unfavourable treatment because the Claimant was on compulsory maternity leave or equivalent compulsory maternity leave?[9]Direct sex discrimination (Equality Act 2010 section 13)9.1 Did the Respondents do the following things: 9.1.1 On 22 October 2024, the Second Respondent said to the Claimant, in reference to her then partner, ‘he surely earns enough for you to stay at home?’9.2 Was that less favourable treatment?9.3 If so, was it because of sex?[10]Victimisation (Equality Act 2010 section 27)10.1 Did the Claimant do a protected act as follows:10.1.1 Request that the First Respondent pay her in lieu of holiday entitlement accrued during her maternity leave10.1.2 Bring these proceedings, which include allegations under the Equality Act 201010.2 Did the Respondents do the following things:10.2.1 On 28 October 2024, ask the Claimant to return her company car10.2.2 Send a pre-action protocol letter to the Claimant10.3 By doing so, did it subject the Claimant to detriment?10.4 If so, was it because the Claimant did a protected act?[11]Remedy for discrimination and victimisation – not considered at this hearing Findings of Fact 11. The relevant facts are as follows. Where we have had to resolve a conflict in the evidence, we indicate how we have done so at the material point. We made findings on the relevant standard of proof, the balance of probabilities. That is, we were deciding what we considered to be more likely than not.
Findings of Fact
[12]We made findings of fact on the issues relevant to the List of Issues only, together with any necessary contextual issues.
Credibility
[13]The Claimant makes assertions about events that the Respondent categorically denies. Many of the events described by the Claimant were reliant on her oral evidence, as was Mr Hawkes’ denial. In closing submissions, the Respondent invited us to make findings about the overall credibility of the Claimant which should permeate our findings of fact on all of the disputed events. We therefore make the following overarching findings about the credibility of the oral and written evidence which apply to many of the factual disputes we must resolve.[14]The Respondent points to certain Whatsapp messages disclosed by the Claimant, dealt with in further detail below. Far from suggesting that she is fabricating a fraudulent claim as suggested, we find they show the Claimant’s genuine response and reflections to certain events at the time they occurred. The alternative, which the Respondents asks us to find, is that the Claimant in a pre-mediated attempt to frame the Respondents almost a year before bringing these proceedings fabricated her messages to her partner and close friend. We find this to be implausible and a contention not supported on the evidence before us. The contention is also inconsistent with other elements of the Respondents’ case, in that on some issues they ask us to make findings based on the assumption that other of the Claimant’s emails and messages are genuine and show her genuine feelings and responses at the time.[15]The Respondent also relies upon the disputed e-mail referred to above which the Claimant had significantly redacted. We do not accept that she did so in a calculated attempt to hide matters from the Tribunal. We find the Claimant genuinely believed that the redactions were appropriate, in that they hid the names of minors and certain delicate information about an incident at her son’s school. She openly agreed to the Tribunal considering their contents in their entirety and, when explained to her that they contained relevant material that should be disclosed to the Respondent, she was entirely co-operative. The emails were not, as we have found below, conclusive of a contested issue in the claims. We cannot therefore find that the Claimant has been fraudulent in the way suggested.[16]We find that both witnesses generally gave straightforward evidence to the best of their ability. We find that both the Claimant and Mr Hawkes have a different recollections of certain events, but we are satisfied that both have a genuine belief in the truth of their own recollection. We are not able to find, on the evidence before us, that the Claimant in particular has fabricated her account in the intentional way suggested by the Respondent.[17]The Claimant has been inconsistent on certain matters, such as particular dates. Again, these are dealt with below when making findings on particular issues. This is not sufficient we find to undermine the reliability of the totality of her evidence. She made sensible concessions where required throughout her evidence and we are not satisfied she appeared before us with any intentional or subconscious desire to mislead.[18]Similarly, Mr Hawkes’ was unable to recollect certain events or gave somewhat vague responses to many of the questions asked for him. This does not lead us to conclude that the entirety of his evidence is unreliable but is an indication of the passage of time and his view of the importance of certain events when they happened, compared to the importance of those events to the Claimant.[19]Against that background we have considered each of the disputed issues and weighed the competing evidence of each of the witnesses and the documentary evidence before us. We make no blanket determination of credibility, rather we make findings of fact specific to each of the issues and the evidence available on those issues. Claimant’s Employment[20]The Claimant began her employment as Sales Manager. She was paid £40,000 per year as detailed in Mr Hawkes’ offer email to her on 2nd April 2020. Soon after she started, her title changed to National Sales Manager. There is some dispute as to whether she was promoted or whether she gave herself that title, but both parties agree from approximately September 2020 her title was that of National Sales Manager. Relationship between the Claimant and Second Respondent[21]The First Respondent company is a small business. Mr Hawkes, the Second Respondent, is in charge of procurement. Mr Hawkes and the Claimant were the only members of staff in the office full time for much of time the period we are concerned with in this claim. We have not heard or seen any evidence from the Director Stephen Thompstone. Mr Hawkes’ mother Janis who features in the evidence we have heard worked part time as an administrative assistant. It is apparent Mr Hawkes’ was a driving force in the business and although he states in his statement Mr Thompstone made all the ‘major decisions’ it is clear Mr Hawkes had responsibility for hiring and firing and, on a day to day basis, the Claimant reported to him.[22]The parties agree that in light of the small nature of the workforce, the Claimant and Mr Hawkes had a close working relationship. The Claimant confided in Mr Hawkes about personal matters, and the working and personal relationship was somewhat blended. They were in regular contact via informal means such as Whatsapp. It is clear that both parties held the other in high regard and for four and a half years they had a strong working and personal relationship. In many ways therefore this is a sad case and it is unfortunate that the relationship has broken down to such a degree.[23]We find the Claimant was somewhat reliant on Mr Hawkes and sought his approval. There was, we find, a power imbalance between them that went beyond the obvious power imbalance of employer/employee. He supported her both in offering her her role at the First Respondent company and supporting her development, but also personally as well by acting as a confidante. He assisted her to find a property to live in and they had a close personal relationship as well as a professional one. Claimant discloses her pregnancy[24]On 18th July 2023 the Claimant informed Mr Hawkes that she was pregnant.[25]Although not an express allegation identified in the List of Issues, it is a cornerstone of the Claimant’s case that Mr Hawkes’ demeanour towards her changed after she made her announcement. She says that although he congratulated her politely, she noticed a shift in his demeanour and she had a sense that her pregnancy was an inconvenience. In her Witness Statement and she said this was her personal feeling at the time.[26]When asked in oral evidence, she was unable to specify precisely what she meant by this. She could not give specific examples of hints that Mr Hawkes had given that her pregnancy was an inconvenience. It was put to her that this was no more than a ‘feeling’ she had, unsupported by any actual instances.[27]We find, on balance, that the ‘shift’ in Mr Hawkes’ demeanour was something largely perceived by the Claimant because of her own anxiety about the impact of her pregnancy and maternity leave on her role and position within the company, not because of any particular conduct by Mr Hawkes.[28]We have been taken to numerous Whatsapp messages between the two parties particularly in the early period of the Claimant’s maternity leave where she is, we find, clearly anxious to impress upon Mr Hawkes that she remains ready and willing to assist however she can. Mr Hawkes’ responses are reserved and repeatedly reminds her she is on maternity leave. This only seems to heighten the Claimant’s anxiety who in return contacts him more often.[29]It is clear she kept a close eye on movement within the company during her maternity leave and was particularly concerned by the hiring of another woman, Catrin Reed, ostensibly to work in HR but who was also advertised as a sales manager for Wales in marketing material.[30]We find therefore that any perceived shift in Mr Hawkes’ demeanour towards the Claimant after her pregnancy announcement was borne from her own feelings of anxiety, and not something Mr Hawkes’ expressly did or said. The Claimant subsequently formed a genuine – but ultimately unfounded - belief, we find, that the Respondent did not want her to return after her maternity leave, a sentiment she expressed to her partner before she even started her maternity leave. This anxiety only increased, we find, with Mr Hawkes’ reserved responses to her correspondence in the early part of her maternity leave. November 2023 – Fakro Presentation ‘Nobody wants to see a pregnant woman’[31]It is the Claimant’s case that prior to her commencing maternity leave, on or around 6th November 2023, she offered to assist Mr Hawkes in preparing for a presentation for a client and he responded ‘Nobody wants to see a pregnant woman Jess’.[32]The Claimant has given differing accounts of when this statement was made. In her statement she says he said it on multiple times as an explanation for why she should not see customers anymore. She says that on 6th November 2023 she and Mr Hawkes were discussing hiring a temporary replacement when she went on maternity leave and he said he “wouldn’t be making the mistake of hiring a woman again” and then again in or around early December 2023 in response to her offer to assist him preparing for the presentation for Fakro he said ‘nobody wants to see a pregnant woman, Jess’.[33]Mr Hawkes denied making the comment at all in his oral evidence and pointed to the inconsistency in the Claimant’s accounts as to when it had been said.[34]On 6th November 2023 the Claimant sent a message to her friend Lisa Grove in response to a question about when maternity leave starts: “I’d walk out and start today if it was affordable ! Had some REALLT [sic] sexist comments thrown at me recently and making out I can’t do my job! Not allowed to visit customers anymore “ no one wants to see a pregnant woman “ was what he said to me last week fuk I was upset!!”[35]She repeated the allegation again later in the conversation where she stated: “…looking to employ someone and he when mentioned a woman applied he said “I won’t be making that mistake again” undermined a lot of things Iv [sic] definitely be as if I’m incapable and he’s been wrong and Iv [sic] been right…There’s been three clients Iv [sic] offered to meet and he’s made a comment and said ‘no one wants to see a pregnant woman’”[36]We have considered the reliability of these Whatsapp messages. We find they are a reliable and contemporaneous account by the Claimant of the comments made by Mr Hawkes which she found offensive at the time and as she sets out in her Witness Statement. She was consistent in her oral evidence with her Witness Statement when she stated that the comment had been made a number of times. The alternative, which the Respondent asks us to accept, is that the Claimant has pre-emptively sent these messages to her friend in anticipation of later bringing a complaint of pregnancy or maternity discrimination based on false allegations. We find that implausible. There is no evidence that the messages have been doctored or tampered in any way. They are the genuine account by the Claimant to her friend of an incident at work she found offensive in the moment.[37]We note that on another central issue in the case, the Respondent points to the Claimant’s comment about affordability of leaving work in a Whatsapp message and asks us to accept it. In this way the Respondent is asking us to accept some elements of the Whatsapp messages as genuine and reject others. There is no basis for us to do so.[38]We have considered, as invited by the Respondent, that the Claimant did not raise umbrage with the comments at the time, despite feeling able to challenge Mr Hawkes in relation to another comment at a later date. We find that her failure to challenge the comments does not undermine her account. She refers in numerous messages to her partner that we have been taken to, to the futility of arguing with Mr Hawkes, something she expressed again in her oral evidence. She also only refers to ‘fighting back’ on one occasion, later in November 2023. We find the Claimant did not frequently challenge Mr Hawkes and in light of the nature of their relationship, the dependency, anxiety and desire to please we describe above we are satisfied that her failure to challenge does not undermine her account.[39]We therefore find that at some time on or around 6th November 2023, Mr Hawkes said on one or more occasions to the Claimant “Nobody wants to see a pregnant woman’. Forgetful comments[40]The Claimant says that on numerous occasions in or around November 2023 Mr Hawkes made comments about her being forgetful because she was pregnant. Mr Hawkes accepts commenting on the Claimant’s forgetfulness, but denies he related it to her pregnancy. He said in both his witness statement and oral evidence he frequently had to remind the Claimant to complete tasks and that she was generally forgetful.[41]We prefer Mr Hawkes’ account. In messages to her partner Elgan the Claimant expresses her frustrations with Mr Hawkes: ‘making out I don’t remember things when I know categorically something happened as I have it written down…’[42]She does not relate those comments in these messages to her pregnancy. Mr Hawkes’ evidence was clear and unchallenged that he frequently made comments about the Claimant’s forgetfulness even prior to her pregnancy. We have noted the Claimant herself refers to ‘baby brain’ in emails with clients in the documentation before us and therefore to attribute any forgetfulness herself to pregnancy. We find on the evidence before us that Mr Hawkes did not expressly make such a connection. December 2023 – Fakro Presentation Derbyshire ‘She won’t be coming back’[43]The Claimant relies upon the witness evidence of Paul Cooper, a former colleague, who she says informed her on 27th May 2025 – prior to the Preliminary Hearing in these proceedings- that prior to the Fakro presentation in Derbyshire Mr Hawkes told him “We at Panelex have no room for a pregnant person, between me and you, she won’t be coming back as she’s becoming difficult to manage”[44]Mr Cooper did not attend the hearing to give evidence or to be cross-examined. On the day prior to the hearing, the Claimant requested permission for Mr Cooper to give evidence on the first day due to his work commitments. Before the Tribunal responded, the Claimant wrote again to confirm that Mr Cooper had now stated he could not attend at all due to work commitments. We have considered the weight to attach the Mr Cooper’s evidence in those circumstances[45]We determined we should attach no weight to Mr Cooper’s statement. There were a number of legitimate challenges the Respondent sought to make to the statement – by cross-examining the Claimant on the circumstances in which it was obtained – which it was not able to make to Mr Cooper directly.[46]Mr Cooper had produced two statements, the second of which added an additional comment and further detail about the incident. The Claimant had been inconsistent in her account of when Mr Cooper contacted her to tell her about the incident, initially claiming it was on 27th May 2025 – one day before the first preliminary hearing in this claim – and then relying on Mr Cooper’s statement which stated he had contacted her on 22nd May 2025.[47]For these reasons, we determined we would not attach any weight to Mr Cooper’s statement in the absence of any opportunity for the Respondent to challenge it in cross-examination. Mr Hawkes denies making the comment at all. On the evidence before us we are not satisfied on the balance of probabilities that the comment was made as alleged. Commencement of Claimant’s maternity leave[48]On 17th November 2024 Mr Hawkes received an email from the Claimant setting out her understanding of her maternity leave entitlement. Mr Hawkes says he verbally agreed that was correct because they were both in the office at the time and the Claimant sent him the email at his request. The relationship between them continued to be cordial, and we were taken to numerous friendly Whatsapp messages during this time and over the Christmas period.[49]The Claimant commenced maternity leave on 25th January 2024. The hearing considered in detail the nature of the Whatsapp messages between the Claimant and Mr Hawkes in the weeks following. They are generally friendly and cordial. The Claimant kept a keen interest in the goings-on at the business and Mr Hawkes kept her updated.[50]We find the Claimant during this period was, at times, anxious about her position in the company. She made a number of half-joking comments about ‘having her back’ and offers of help and support, for example offering to advertise for job opportunities on Linkedin. Mr Hawkes was initially engaged but his responses become more and more curt, eventually encouraging the Claimant to ‘focus on being a mum’. We find this exemplifies the tension in the relationship by this time, in which the Claimant felt somewhat anxious about her position in the company, and Mr Hawkes wished to maintain some distance given that the Claimant was on maternity leave. As a result, the Claimant was not getting the assurances she wanted about her position in the company which only increased her feelings of marginalisation. We do not accept that this was purposeful on the part of Mr Hawkes, who we accept was trying to maintain an appropriate distance. April 2024 – Deletion of Claimant’s email[51]The Claimant alleges that on 15th April 2024 her work e-mail access was removed. She says this was part of the Respondent’s efforts to shut her out of the company whilst on maternity leave so that she did not or did not want to return.[52]Mr Hawkes says the office computer was running slow and so a new one was purchased in order to install a Sage invoicing system, and all email accounts were transferred over. When the new computer experienced similar issues, they called a computer engineer who found the Claimant’s email account had 40,000 or so spam emails which were causing the computer to slow down. Mr Hawkes said he spoke to the email provider who advised shutting down the account and setting up a generic ‘accounts@panelex’ email address for invoicing purposes. Mr Hawkes says all of the Claimant’s emails were downloaded to a USB stick and the account was shut down.[53]Mr Hawkes’ explanation is supported by the evidence of the computer engineer, Mr Pocock, who attended on 16th April 2025 to identify the issue. It is supported by the contemporaneous Whatsapp messages between the Claimant and Mr Hawkes. We do not accept the Claimant’s submission that the timings are inconsistent and that the decision had already been made to close down her account. On 15th April, the Claimant contacted Mr Hawkes and stated: “Hi Ger trying to sort out this email mess – the phone and everything is attached to jessica@panelex.co.uk so it’s all going to go to accounts???? Also now it’s been changed my reply email to customers about meing on maternity isn’t there now”[54]Mr Pocock attended the office to identify the issue on 16th April 2024. Mr Hawkes thereafter spoke to the email provider. It is only on 17th April 2024 that the Claimant realises her email account has been deleted and contacts Mr Hawkes to ask him about it on Whatsapp. The chronology established by the documentary evidence is consistent with Mr Hawkes’ explanation, which we find is inherently more plausible than what the Claimant asks us to find, which is that the Respondent purposefully removed her access to e-mails without any commercial justification. We find there was no obligation on the Respondent, in the circumstances, to inform the Claimant. She was on maternity leave and it needed to act promptly so that the invoicing system was operational. It took appropriate steps to preserve the Claimant’s emails by saving it to a USB stick. Removal of Claimant’s profile on website[55]The Claimant says that following the issue with her e-mails, she checked the First Respondent’s website and noted that her profile and contact details had been removed. She did not address the allegation in her witness statement. Mr Hawkes accepted that at one time the Claimant had a profile on the website but no longer does. There is no evidence before us as to when it was removed and for what reason and the Claimant did not pursue the allegation in crossexamination. We are unable to find on the evidence before us when or why the Claimant’s profile on the First Respondent’s website was removed. Hiring other staff[56]Around this time, the Respondent employed Catrin Reed, a former solicitor. Her role appears to have spanned a number of functions, including Human Resources and some sales. It also employed Mr Hawkes’ son Carter. The Claimant noted that both Carter and Ms Reed were listed as ‘sales managers’ for different areas on marketing material for the Respondent. We find nothing turns on the employment of Ms Reed and Mr Hawkes. The Respondent was entitled to hire staff as required during the Claimant’s maternity leave. April 2024 – Request for KIT days[57]On 26th April 2024 the Claimant wrote to Mr Hawkes requesting to arrange keep in touch (KIT) days. She says the request was refused. His reply stated: “I don’t think we agreed this before you left, and we don’t need any at the moment anyway”[58]There was some dispute before us as to whether this was in fact a refusal. We find the response is curt but not at odds with how Mr Hawkes corresponds throughout the emails and messages we have been taken to in the evidence. His response was not, we find, a flat refusal. We accept his explanation given in oral evidence that he considered it too early in the Claimant’s maternity leave – some two months out of a total 8 months at the time – to arrange KIT days and there was no operational need for them.[59]The exchange is another example of the tension, or miscommunication between these two witnesses. The Claimant was feeling anxious and, we find, seeking reassurance about her role within the company. Mr Hawkes was somewhat oblivious to this and did not recognise the importance of the request to her. His response was, we find, dismissive but not through any malicious intent. 22nd October 2024 Meeting[60]On 22nd October 2024 Mr Hawkes, Ms Reed and the Claimant met at Costa in Penllergaer services to discuss the Claimant’s return to work. Both parties agree the meeting was arranged to discuss the Claimant’s return to work.[61]The Claimant’s contention that in effect the meeting was an ambush designed to ensure she did not return to work is not borne out in our earlier findings of fact nor in the evidence surrounding this meeting. Prior to the meeting, Mr Hawkes wrote to his accountant to inform them that he was meeting the Claimant to discuss her return to work. Again, if we were to accept the Claimant’s case we would have to find that email was a pre-emptive attempt by Mr Hawkes to ‘cover up’ his true intentions at the meeting. We find that is simply not plausible.[62]Mr Hawkes asked Ms Reed to attend. In his oral evidence he said he asked her to attend as a ‘witness’. We find this a somewhat odd description of Ms Reed’s role and find Mr Hawkes felt he needed a witness because he did, by this stage, have some idea that the Claimant was unhappy and that the meeting may be a difficult one.[63]Both parties have produced what they refer to as contemporaneous minutes of the meeting. We have placed no weight on either set of minutes. The Claimant volunteered in oral evidence that whilst she had started to prepare those minutes later that evening, she had added her thoughts and feelings about the events since then and had been continually adding to them up to and including during these proceedings. They are not, therefore, contemporaneous. Ms Reed exhibits her minutes to her Witness Statement. She did not attend to give evidence, and Mr Hawkes gave vague answers when questioned about when those minutes were prepared. We find it surprising, if they were prepared contemporaneously, and given what ultimately happened at the meeting, that Ms Reed as a purported HR professional did not send them to the Claimant at the time or, did not refer to them when the Claimant began to dispute the outcome of the meeting only one month later. For these reasons we attach no weight to Ms Reed’s minutes. Both of the minutes are, we find, coloured by what happened after the meeting and are therefore not a reliable account.[64]The Claimant says Mr Hawkes told her that the role of national sales manager no longer existed at the company and that he did not know ‘where to put’ her. Mr Hawkes says he updated the Claimant on developments within the business and, before he could offer her an alternative role, she began to discuss the prospect of not returning.[65]Much was made before us about the issue of the Claimant’s son’s schooling. Mr Hawkes says the Claimant told him she intended to withdraw her son from Llandovery College because he had been assaulted and that without the financial burden of the school fees she could afford to stay at home. The Claimant accepts she mentioned the incident but denies she discussed the school fees.[66]We find that in fact little turns on this issue because there is sufficient evidence elsewhere to satisfy us that the Claimant came out of the meeting of 22nd October 2024 with the understanding that she and the Respondent had reached an agreement that would bring her employment with the Respondent to an end. In that respect, we prefer Mr Hawkes’ evidence as to the outcome of the meeting. In some respects, it is not entirely at odds with the Claimant’s own account which, taken at its highest, is that Mr Hawkes’ told her he did not know where to ‘put’ her and then steered the conversation towards the prospect of her not returning, to which she ultimately agreed.[67]We reject Mr Hawkes’ evidence that he had a role in mind for the Claimant and that he had planned to offer her a role managing a project for a coffin manufacturer. This is something he raised for the first time in his oral evidence. It is clearly a hugely important point, because it contradicts the Claimant’s perception that he never wanted her to return to work. Mr Hawkes clearly understood the importance of this conversation in these proceedings because a large amount of energy was spent on the Llandovery College issue. We find therefore had it been the case he had a role in mind for the Claimant, that would have been stated in the Respondents’ response, amended response or Mr Hawkes’ Witness Statement.[68]We find it more likely than not that both parties went into the meeting nervously, given what had happened between them in April. This is supported by Mr Hawkes’ decision to bring Ms Reed as a ‘witness’. We find there was a discussion about changes in the business, and a discussion about the Claimant’s home life. There was a discussion about the prospect of the Claimant’s return to work. We are unable to find, on the evidence before us, who prompted that conversation nevertheless we find that the parties agreed that the Claimant would not return to work, and she could keep her company car until December.[69]On considering the Claimant’s written evidence and conduct immediately following the meeting and shortly thereafter we find that she left the meeting on the understanding that she and the Respondent had reached a mutual agreement that would bring her employment to an end. She would be able to keep her company car until Christmas, and she would be paid any outstanding money due including holiday pay and her final maternity pay. It is her evidence, at its highest, that she now feels she was ‘persuaded’ to reach this agreement. She has never gone so far as to allege that she was coerced or forced into reaching that agreement. We find it something she entered into of her own volition. We are satisfied that an agreement was reached.[70]That evening, the Claimant contacted both Mr Hawkes and his mother to express her gratitude over the past four and a half years. To Mrs Hawkes, she wrote: “…I met with Geraint today and (I’m sure you already know) both agreed for me not to return for now so I can continue to enjoy my time with my family”[71]To Mr Hawkes she wrote: “Just wanted to pop a message to firstly say a huge thank you for the opportunity at panelex the last 4.5 years. Really grateful to both you and your mam for the skills you taught me and providing me and my family security with a job I loved doing. I’m glad today ended as it did I think both seem happy with the outcome”[72]On 28th October 2024, she wrote an email to Mr Hawkes to chase her final pay. She quoted an extract, seemingly from a website which set out what she considered she was entitled to by way of holiday pay. It stated: “Since you’ve mutually agreed not to return…”[73]When Ms Reed responded to her, setting out her understanding of the agreement reached at the meeting, she replied: “From my memory we agreed all above but I said about accrued holiday pay and you said you would check as you thought it wasn’t the case…Was lovely finally meeting you last week also. Hope you enjoy working there as much as I did”[74]We find the Claimant’s correspondence in the immediate and short-term aftermath of the meeting on 22nd October 2024 is not consistent with the conduct of someone dismissed summarily, rather the repeated reference to an agreement and the tone of the correspondence establishes, we find, that the Claimant left the meeting on 22nd October 2024 understanding that there was an agreement her employment would come to an end. It was only some weeks later that she began to express her dissatisfaction with what was in effect a ‘bad bargain’. ‘He surely earns enough for you to stay at home’[75]The Claimant says that during the discussion on 22nd October 2024 Mr Hawkes said, in relation to her partner Elgan, ‘He surely earns enough for you to stay at home’. Mr Hawkes accepts referring to Elgan’s ability to ‘look after’ the Claimant but says it was not in a financial sense.[76]We find that the Claimant’s domestic life and financial circumstances were discussed as part of the discussion surrounding her not returning to work. We find there may have been a discussion about her partner’s finances and that there was a reference to being ‘looked after’ but there is insufficient evidence for us to find, on the balance of probabilities, that the comment was made in the terms or context alleged. Correspondence following 22nd October 2024 – Holiday Pay and Company Car[77]After 22nd October, there followed a series of email exchanges between the Claimant and Ms Reed about the Claimant’s outstanding holiday pay. The Claimant wrote to Mr Hawkes on 28th October stating that she had not received her final pay on 25th October and seeking payment of the holiday pay she had accrued on maternity leave. It was Ms Reed who responded on the same day stating: “I thought we agreed on the car until Christmas, iphone and the parking ticket instead? … As a compromise – how about if I ask Geraint to speak to the accountants on his return to arrange sorting that payment over to you – and we can take the car back at the end of this month?”[78]The Claimant replied: “Yes that is perfectly fine! I an pop car back this week in time to catch the next roll on contract date… From my memory we agreed all above but I said about accrued holiday pay and you said you would check… Let me know what’s [sic] is what. In meantime payroll is usually 25th of month always has been if that could be processed today so not to have other things bouncing out of that account…I had an email from nest pensions last week so they have already been informed of me leaving Panelex on Friday 25th oct”[79]The Claimant returned the car on 31st October.[80]There followed an exchange of emails with the Claimant repeatedly asking for her final pay and the calculation of her accrued holiday pay. On 8th November she e-mailed Ms Reed: “Tried ringing Geraint again and at this point it is clear my calls, emails and text are being ignored. Please can this be sorted. It has been over 14days since we met and discussed my position in Panelex finishing… I acted quickly when the decision was changed for me to keep the car and eturn it so Panelex didn’t have to pay another month…”[81]On 19th November the Claimant emailed Mr Hawkes and Mr Thompstone setting out how she felt she had been ‘caught off guard’ at the meeting of 22nd October and asserted that she had been made redundant without due process. She stated she would like to return to her role. We have not been taken to a response to that e-mail. The Claimant contacted ACAS on 21st November 2024.[82]The Claimant’s ET1 claim form was received by the Tribunal on 20th February 2025. In it, she made claims of unfair dismissal, pregnancy and maternity and sex discrimination, and notice and holiday pay. The Notice of a Claim was sent to the Respondents on 2nd April 2025.[83]On 4th April 2025, the First Respondent sent the Claimant a Letter Before Action prepared by Ms Reed on behalf of the First Respondent. It was titled ‘Our Claim: Overpayment of Salary’. It stated that the First Respondent is ‘now aware’ that the Claimant was mistakenly overpaid throughout her employment and was paid a £40,000 net salary rather than a £40,000 gross salary as agreed. The letter claims the overpayment totals £58,333.32. The letter invites the Claimant to pay the sum outstanding by cheque to the Second Respondent within 14 days and warns that should the Claimant ignore the letter legal proceedings will be issued against her with no further notice, increasing her liability for costs.[84]The Claimant responded on 9th April 2025, disputing the claim and noting that no issue was ever raised throughout her employment. She stated: “I find the timing of this letter highly questionable. It was issued the day after I received confirmation of the Preliminary Hearing date from the Employment Tribunal regarding my claim against Panelex Wood Agency…”[85]The Claimant requested disclosure of the evidence on which the First Respondent relied. Ms Reed responded on 11th April. It appears there may have been some correspondence prior to 4th April, as in Ms Reed’s response she states ‘Thank you for your prompt response to our letter dated 31st March 2025’[86]We have not been taken to any correspondence of that date. In Ms Reed’s response, she states that the Claimant’s ET1 claim form is what brought the alleged overpayment to the First Respondent’s attention. The letter gives no details as to how that is. It also purports to add an additional sum of £354 to the Claimant’s debt for the cost of repairs to the company vehicle. It states that court proceedings will be issued in seven days ‘unless realistic payment proposals are made’.[87]The last correspondence on the issue from Ms Reed is dated 22nd April, in which again she requests payment and states that court proceedings will be issued on 25th April unless payment is made. The Claimant responded again on 30th April asking how the sum owed has been calculated and requesting evidence to support the sums claimed. No further action has been taken by the Respondent on the matter.[88]Mr Hawkes said in evidence, and we find, that he was aware the letter was being sent and he discussed it with Ms Reed before she sent it. Whilst he said the final authorisation was Mr Thompstone’s, we find he was aware and was in agreement with the decision. We have not heard any evidence from Mr Thompstone and there is no evidence that he was involved in any operational matters day to day. He has barely been mentioned throughout these proceedings. We find whilst Mr Thompstone may have given final authorisation, the decision to respond with a Letter Before Action was Mr Hawkes’. This accords with the oral evidence he gave that he had noted the discrepancy in the figure given in the Et1, he had checked the offer he made, and it was he that discovered the overpayment. He said he spoke to Ms Reed, and asked her to calculate what had been overpaid and contact the Claimant. The letter was therefore prompted by him.[89]Mr Hawkes said the letter was sent in direct response to the figures given by the Claimant in 9.2 of her ET1 Claim Form where she claims a figure which exceeds her £40,000 gross salary per annum: ‘Lost Earnings (6 months): £24,012’[90]We find the letter was not a direct response to the ET1. Mr Hawkes’ evidence is at odds with the Amended Grounds of Resistance filed on his behalf in which it is stated: “Following the Claimants claim to ACAS in December 24 (some two months following her resignation) the Claimant was forced to review once again holiday allowances, payee etc and it transpired as though an overpayment of salary had been made”[91]We do not accept, as Mr Hawkes’ evidence would require us to, that within a day of receiving the Claimant’s claim form – having been sent to the Respondents on 2nd April, and received therefore at the earliest on 3rd April and the Letter Before Action being dated 4th April – the Respondent had noted the discrepancy, made the relevant calculations of overpayment over a significant period, discussed and then drafted the letter before action. We find the Respondents had been notice of a potential overpayment for some time prior to receiving the Claim Form and sent the Letter Before Action, we find, in direct response to the Claimant’s decision to pursue the claim further and bring proceedings in the Employment Tribunal. The Law Unfair dismissal – Termination vs Dismissal
The Law
[92]Insofar as is relevant to this claim, section 95(1) Employment Rights Act 1996 provides that an employee is dismissed by his employer if: (a) The contract under which he is employed is terminated by the employer (whether with or without notice)[93]Whether the contract of employment has been terminated by the employer is both a question of fact and law: Whether termination was by agreement or dismissal is a mixed question. The question who really terminated the contract? is one of fact, but whether those facts amount in law to a dismissal or consensual termination is a question of law: Martin v Glynwed Distribution Ltd and Birch and anor v University of Liverpool. The question for the tribunal is ‘Who really terminated the contract of employment?’[94]Tribunals look at the substance of what occurred, not just the label used in correspondence or meetings. Where the employee is not tricked, coerced or threatened, termination may properly be found to be by mutual agreement, although it can also be sufficient where the employee is expressly invited to resign. If the employer’s words or actions in reality amount to dismissal, it will be treated as such. Riley v Direct Line Insurance Group plc; Birch and anor v University of Liverpool; Carter v Wolverhampton MBC.[95]Where an employer presents an ultimatum, such as resign or be dismissed, a tribunal may find that the termination was a dismissal rather than mutual agreement. The distinction is fact-sensitive: Birch and anor v University of Liverpool; Scott and ors v Coalite Fuels and Chemicals Ltd; Gateshead MBC v Mills; Thomas v Commissioner of Police for the Metropolis; Llewellyn Ryland Ltd v Jones; Sandhu v Jan de Rijk Transport Ltd.[96]What starts as a dismissal may become a voluntary resignation if the employee negotiates satisfactory financial terms and leaves because of them. Sheffield v Oxford Controls Co Ltd 1979 ICR 396, EAT[97]Where the words used are ambiguous, whether or not it amounts to a dismissal or resignation is an objective test having regard to all the surrounding circumstances. The Tribunal might consider how a reasonable employee or employer might have understood the words used in all the circumstances. Direct sex discrimination[98]Under Section 13(1) Equality Act 2010 read with section 9, direct discrimination takes place where a person treats the Claimant less favourably because of, in this case, sex, than that person treats or would treat others. Under s23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[99]In many direct discrimination cases, it is appropriate for the tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of sex. However in some cases, for example where there is only a hypothetical comparator, these questions cannot first be answered without first considering the ‘reason why’ the Claimant was treated as she was. Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11[2003] IRLR 285.[100]Decisions are frequently reached for more than one reason. Provided the protected characteristic has a significant influence on the outcome, discrimination is made out. Nagarajan v London Regional Transport [1999] IRLR 572 HL.[101]The case law recognises that very little discrimination today is overt or even deliberate. Witnesses can even be unconsciously prejudiced.[102]It is necessary to look at the ‘mental processes’ of the alleged discriminator. The protected characteristic need not be the only reason for the less favourable treatment, it may not even be the main reason, but we must ask ourselves whether the decision or action was significantly influenced by the protected characteristic. Pregnancy and maternity discrimination[103]Section 18 Equality Act 2010 provides that an employer discriminates against a woman if it treats her unfavourably during the ‘protected period’ of her pregnancy because of the pregnancy or an illness resulting from the pregnancy (s.18(2)). Such claims do not require the Claimant to assert she has been treated less favourably than someone who is not pregnant.[104]The ‘reason why’ considerations are similar to those in relation to a direct sex discrimination claim. The pregnancy or maternity leave need not be the only factor for the alleged discriminator’s actions, it is enough if it has had a ‘significant influence’ on the actions or words. As with sex discrimination, the law recognises that such conduct can be both consciously or subconsciously motivated Onu v Akwowu and anor; Taiwo v Olaigbe and anor 2014 ICR 571 CA Victimisation[105]Section 27 Equality Act 2010 provides that a person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act[106]A protected act includes, insofar as relevant to these proceedings, bringing proceedings under the Equality Act, and doing any other thing for the purposes of or in connection with the Act.[107]A ‘detriment’ in the context of victimisation claims is not defined by the Act but should be given the same broad interpretation as in other areas of discrimination law. The EHRC Employment Code gives a helpful summary: “Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage… there is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment”[108]The critical question is one of causation. Why did the employer subject the employee to the detriment? Was it because they had done (or might do) the protected act? Or was it wholly for other reasons? Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065. The ‘reason why’ test is essentially the same as in direct discrimination cases. The Claimant need not show that the detriment was solely because of the protected act. If protected acts have a significant influence on the employer’s decision, causation will be made out. Nagarajan v London Regional Transport 1999 ICR 877 HL. A ‘significant influence’ should be ‘an influence which is more than trivial’ Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931 CA[109]The ‘reason why’ test can be satisfied whether or not the discriminator consciously or subconsciously permitted the protected act to determine or influence his or her treatment of the Claimant. Time Limits[110]The test to be applied regarding time limits and discrimination complaints is set out in section 123(1) of the Equality Act 2010, as follows: Proceedings…may not be brought after the end of—a. the period of 3 months starting with the date of the act to which the complaint relates, orb. such other period as the employment tribunal thinks just and equitable.[111]In addition, section 123(3) of the Equality Act 2010 states that “conduct extending over a period is to be treated as done at the end of the period.” In other words, if there is a course of conduct which is discriminatory, and the last act of discrimination occurred within the applicable time limit, the whole course of conduct is treated as being in time.[112]There must be a continuing course of discriminatory conduct, as opposed to a discriminatory act which has continuing consequences. The Tribunal will look at the substance of the complaints and decide whether they can be said to part of one continuing act of discrimination. For the purposes of establishing whether or not complaints are in or out of time, the Claimant must be able to show a reasonably arguable basis for the contention that various complaints of discrimination are so linked as to be continuing acts or constitute an ongoing state of affairs.[113]The Tribunal does not have the power to decide any complaint unless it was presented within 3 months of it occurring or the Tribunal decides that the complaint was presented within “such other period as [it] thinks just and equitable.” For those complaints that are out of time, the Claimant will need to explain to the Tribunal the following: 1. Why she failed to present his claim within the prescribed 3 month time limit; 2. Why she did not present his claim any earlier than he did; 3. Why she thinks that it would be just and equitable to allow his claim to proceed, even though it was presented out of time.[114]In deciding whether to allow the complaint to proceed, the Tribunal will weigh the prejudice to the Claimant of not being permitted to proceed with her claim against the prejudice to the Respondent of allowing it to proceed. The Tribunal will also take into the account how out of time the complaint is, why it was not presented within the applicable time limit, why it was presented at the time that it was and any other factors which may be relevant. Analysis and Conclusions Unfair Dismissal 2.1 Was the Claimant dismissed or did she resign? (Issue 2.1)[115]Applying our findings of fact above, we find the Claimant’s contract of employment was not terminated by her employer. The Claimant’s contract of employment came to an end by mutual agreement. Whilst the Claimant may have later felt she had been persuaded to enter that agreement, that is not the test we must apply. We have not found that the Respondent used words which amount to a dismissal of the Claimant. At its highest, the Claimant’s claim is that she was told the First Respondent did not ‘know where to put’ her. Those words are not tantamount to a dismissal. We have concluded in considering the Claimant’s actions and correspondence after the meeting that the parties reached a mutual agreement as to how the Claimant’s employment should come to an end. The Claimant’s claim for unfair dismissal therefore fails. Pregnancy and Maternity Discrimination (section 18 Equality Act 2010) 8.1. Did the Respondent treat the Claimant unfavourably by doing the following things: 8.1.1. On around 6 November 2023, when the Claimant offered to do a presentation for a new client, the Second Respondent sniggered and said ‘nobody wants to see a pregnant person Jess’?[116]Applying our findings of fact above, we find the Second Respondent did make this comment as alleged.[117]We are satisfied the comment does amount to unfavourable treatment. It suggests that the way a pregnant woman looks will make her off-putting to clients to the extent that she should not be seen. 8.1.2. During November 2023 the Second Respondent made comments about the Claimant being forgetful because she was pregnant[118]Applying our findings of fact above, we have found the Second Respondent did not relate the Claimant’s forgetfulness to her pregnancy. 8.1.3. On 17 November 2023, the Claimant emailed the Second Respondent asking for ‘keep in touch’ days and never received a response[119]The Claimant withdrew this allegation during the hearing. 8.1.4. On or around 15 December 2023 the Second Respondent remarked at a work meeting about the Claimant ‘We at Panelex have no room for a pregnant person, between me and you she won’t be coming back as she’s becoming difficult to manage’[120]Applying our findings of fact above, we have found the Second Respondent did not make this comment. 8.1.5. On 15 April 2024 the Claimant’s work email access was removed[121]We have found that the Claimant’s work email was changed on or around 15th April. This has never been in dispute. We are not satisfied that the action amounts to less favourable treatment because, applying our findings of fact above, the Respondent had proper cause to remove the Claimant’s email account from the computer. It took precautionary steps so that the Claimant did not lose her e-mails by saving them to a USB stick and it was appropriate, we find, for it not to give the Claimant a warning because she was on maternity leave. The Claimant was not treated unfavourably. 8.1.6. On the same day the Claimant also noticed that her contact details on the First Respondent’s website had been removed[122]It is not in dispute that the Claimant’s contact details are no longer on the First Respondent’s website. We have not been able to find that this was on or around the same day, and the Claimant has not been able to establish why the details were removed. We cannot therefore find that the removal of the Claimant’s contact details was unfavourable treatment as the Claimant does not establish a facts from which we can decide, in the absence of any other explanation, that the Respondents’ conduct was discriminatory. 8.1.7. On 26 April 2024 the Claimant again emailed the Second Respondent about KIT days and he refused shortly thereafter[123]Applying our findings of fact above, whilst we have found that Mr Hawkes did state KIT days were not required at that time, he did not flatly refuse the request. We have found that he did so for legitimate reasons, namely because the Claimant was then very early on in her maternity leave, and so we cannot find that his response was unfavourable treatment. 8.1.8. Terminate her employment with immediate effect from 22 October 2024[124]We have found the Claimant’s employment was not terminated. 8.2. Did the unfavourable treatment take place in a protected period?[125]The comment on or around 6th November 2023 was made when the Claimant was pregnant and therefore within a protected period. This was not disputed in the hearing before us. 8.3. Was the unfavourable treatment because of the pregnancy[126]The comment made was, we find, because of the pregnancy. The comment relates directly to how a pregnant woman looks and the desirability – or otherwise – of her being seen publicly at work because of the way she looks. That is inherently discriminatory. The Respondents have not put forward any explanation for the conduct, because it was denied throughout.[127]The Claimant’s claim for pregnancy and maternity discrimination therefore succeeds. Direct Sex Discrimination (EqA 2010 Section 13) 9.1. Did the Respondents do the following things: 9.1.1. On 22 October 2024, the Second Respondent said to the Claimant, in reference to her then partner, ‘he surely earns enough for you to stay at home’?[128]Applying our findings of fact above, we have found that this comment was not made. The Claimant’s claim for direct sex discrimination therefore fails. Time Limits[129]The Claimant’s claim for pregnancy and maternity discrimination is out of time. We have found that the Claimant was not dismissed and therefore there is no ‘discriminatory’ act which amounts to a course of conduct, the last of which is within time.[130]The last ‘act’ relied upon by the Claimant is 26th April 2024. The only act which we have found amounts to unfavourable treatment occurred on or around 6th November 2023. It is therefore significantly out of time.[131]We have considered whether it is just and equitable to extend time. We have determined it is not. The claim is significantly out of time. Although there are matters occurring since then which prompted the Claimant to make a claim, the comment in itself is a ‘standalone’ comment and there is no good reason why the Claimant could not have brought her claim in time. The Claimant has not explained why the claim was not brought within time. The Claimant has not put before us any reason why it is just and equitable to extend time. Simply because we have been able to hear evidence and make findings on the issue does not make it just and equitable to extend time in circumstances where the claim is so significantly out of time. We remind ourselves that an extension of time on just and equitable grounds should not be presumed, and we can find no reason why the exception should be applied.[132]The Claimant’s claim for pregnancy and maternity discrimination is therefore out of time. Victimisation (EqA 2010 section 27) 10.1. Did the Claimant do a protected act as follows: 10.1.1. Request that the First Respondent pay her in lieu of holiday entitlement accrued during her maternity leave;[133]The Claimant did make a request that she was paid in lieu of holiday entitlement accrued during her maternity leave, as set out clearly in her email of 28th October 2024 to Mr Hawkes, to which Ms Reed responded. 10.1.2. Bring these proceedings, which include allegations under the Equality Act 2010?[134]Clearly, there can be no dispute that these proceedings were brought by the Claimant. 10.2. Did the Respondents do the following things: 10.2.1. On 28 October 2024, ask the Claimant to return her company car 10.2.2. Send a pre-action protocol letter to the Claimant[135]Ms Reed clearly requests in her response to the Claimant on 28th October that ‘as a compromise’ she return the company car. We have been taken to the pre-action protocol letter in the Claimant’s supplementary bundle. The Respondent does not dispute these acts. 10.3. By doing so, did it subject the Claimant to detriment?[136]We find that the request for the Claimant to return the company car amounts to a detriment. The Claimant agreed to the termination of her employment on terms, including that she could keep the company car until Christmas. The Respondent reneged on that agreement very soon thereafter and as soon as the Claimant sought payment of the sums to which she was entitled. The Claimant was no longer able to rely on the Respondent’s promise of a company car in the months immediately after she found herself without work or income. We are satisfied that this amounts to a detriment.[137]The Letter Before Action or Pre-Action Protocol letter did subject the Claimant to a detriment. We have considered the tone, and find it to be extremely aggressive. Despite the Claimant’s repeated requests, the Respondent did not provide a breakdown or evidence to support the significant sum being claimed. We find that receiving that letter will have caused the Claimant significant distress and does amount to a detriment. 10.4. If so, was it because the Claimant did a protected act?[138]We find that both actions by the Respondents were because the Claimant did a protected act. The request to return the company car was as a direct response (couched in terms of a ‘compromise’) to the Claimant’s request for the wages legally owed to her. The car was used as a bargaining chip for the Claimant to receive that money which she had made clear from the outset she desperately needed. The Claimant’s evidence was clear that she was willing to agree to any terms to receive her money because she was concerned that Mr Hawkes had previously failed to pay the final wages of former employees. The Respondents, having had the car returned, then failed to make those payments and responded more and more sporadically to the Claimant. As soon as the car had been returned and the Claimant had lost her bargaining power, the Respondents lost interest in engaging with her on the sums owed. For these reasons we are satisfied that the offer of a ‘compromise’ was because the Claimant did a protected act.[139]The Respondent has sought to argue that the Letter Before Action was sent only because of the figures provided by the Claimant in her ET1 form and as such the Claimant’s claim fails because she fails to establish a causal link between her protected act and the detriment. We reject this. We have found that the Respondents were already on high alert to an alleged overpayment since the ACAS early conciliation period, because of the comments in its ET3 response. Even if the figures in the ET1 confirmed that suspicion, we find the Respondents were ready to respond aggressively to any formal claim with a Letter Before Action, given the speed with which the letter was sent after notification of a claim was sent. We find the decision to react in this manner was Mr Hawkes’.[140]The Letter Before Action was a grossly disproportionate response regardless of the legitimacy of the Respondent’s concerns. The tone of the letter is aggressive and threatening, particularly to a Litigant in Person. It is effectively a demand for payment, rather than a genuine attempt to resolve matters. There had been no attempt to resolve matters informally before it was sent, indicating we find that it was a knee jerk reaction taken in anger in response to the receipt of the claim form. It is telling that when the Claimant sought to engage with the First Respondent, seeking disclosure and a detailed breakdown, the First Respondent simply repeated its threats to issue court proceedings and ultimately abandoned the issue altogether. The Claimant had put figures on her ET1 claim form as to what she thought she was owed if successful in her claim. Ms Reed was a trained solicitor and ought to have known that unrepresented parties often plead figures that are either over-inflated or irrecoverable in law. It is surprising, therefore, that she wrote in such aggressive terms to the Claimant what is effectively a demand for debt.[141]For these reasons we are satisfied that the fact the Claimant had brought these proceedings were a material influence on the Respondents’ decision to send her a Letter Before Action, and the Claimant’s victimisation claim succeeds.[142]A remedy hearing will therefore be listed and directions to that hearing issued shortly.