Mrs C Shorney-Jones v Multiple Sclerosis Society: 1602271/2023

EMPLOYMENT TRIBUNALS

Case No 1602271/2023

Between

Mrs C Shorney-JonesClaimant

Multiple Sclerosis SocietyRespondent

Before

Employment Judge R Russell

Mr R Wayman (instructed by Counsel) for claimant

Mr S Crawford (instructed by Counsel) for respondent

Date 28 June 2024

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]The following complaints of pregnancy and maternity discrimination are well-founded and succeed (using the numbering of the updated agreed List of Issues):(a) Allegation

1.1.1

(b) Allegation

1.1.2

1.1.3 (formerly

1.1.4 )

(d) Allegation 1.1.6 (formerly 1.1.7)

[2]The remaining complaints of pregnancy and maternity discrimination are not well-founded and are dismissed.

[3]The following complaint of victimisation is well-founded and succeeds: (a) Allegation 2.3.5

[4]The remaining complaints of victimisation are not well-founded and are dismissed. 10.2 Judgment - rule 61 February 2018 Case No: 1602271/2023 JUDGMENT having been sent to the parties on 01 July 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]By way of a claim form presented on 04 October 2023 the Claimant brings a claim of pregnancy discrimination and victimisation. ACAS early conciliation began on 25 July 2023 and ended on 05 September 2023. By way of a response dated 13 December 2023 the Respondent defends the claim.

[2]The Tribunal received witness statements from the Claimant and, for the Claimant, from Adele Gilmour and Fiona McDonald. For the Respondent, we received witness statements from Barbara Spreadborough, Carolyn Woolley, and Edward Tait. All witnesses were questioned on their evidence.

[3]We had a digital bundle spanning 488 pages. References below to page numbers are to page numbers in the bundle. We have considered those pages to which we were directed by the parties.

[4]The Tribunal was assisted by the clear and comprehensive written and oral submissions of Mr Wayman and Mr Crawford. Mr Crawford had also prepared an opening note, which we considered together with his submissions. We also had before us a key documents list, chronology, and cast list.

[5]The hearing took place via video. There were occasional connectivity interruptions. Notwithstanding these, the Tribunal was satisfied that all parties could participate fully in the hearing.

[6]Reasonable adjustments were discussed with the parties at the outset and during proceedings. The Claimant was visibly upset at points during her evidence. Additional breaks were therefore allowed by the Tribunal to which the Respondent had no objection.

[7]Oral judgment was given on the final day of the hearing. Judgment was sent to the parties on 01 July 2024. Written reasons have been prepared at the request of the Claimant. The request was made on 10 July 2024 and sent to Employment Judge Russell on 30 July 2024.

Issues

[8]The issues the Tribunal had to decide were agreed by the parties. They were based on those discussed at a Case Management Preliminary Hearing before EJ Cawthray on 10 January 2024 [79-80]. The Tribunal confirmed these with the parties at the outset of the hearing. They are set out below. The original numbering has been retained. 1. Pregnancy and Maternity Discrimination (Equality Act 2010 section 18)1.1 Did the Respondent treat the Claimant unfavourably by doing the following things:1.1.1 Fail to undertake a pregnancy specific risk assessment between 27 April 2023 and 21 July 2023. [The parties agree this involves consideration of whether an obligation to carry out a pregnancy-specific risk assessment in accordance with regulation 16 of The Management of Health and Safety at Work Regulations arose.]

1.1.2 On 27 April 2023 was the Claimant told by Mr. Liddiard that she would not be provided with details regarding her maternity pay until she provided a completed MatB1 form?

1.1.3 Did the Respondent delay commencing a pregnancy-specific risk assessment at all until receipt of the Claimant’s complaint raised on 20 July 2023?

1.1.4 On 2 August 2023 did the Respondent force the Claimant to complete her own maternity request without assistance when she was on sick leave?

1.1.5 On 10 August 2023 did the Respondent force the Claimant to cancel her annual leave whilst she was on sick leave when previously HR did this for the Claimant and other staff?

1.1.6 Did the Respondent delay escalating the Claimant’s complaint of 20 July 2023 to a grievance or commence investigating it until ACAS contacted the Respondent on 17 August 2023?

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

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

1.4 Was the unfavourable treatment because of the pregnancy?

1.5 Was the unfavourable treatment because of illness suffered as a result of the pregnancy? 2. Victimisation (Equality Act 2010 section 27)

2.1 Did the Claimant do a protected act as follows: 2.1.1 Make a grievance on 20 July 2023.

2.2 Did the Respondent believe that the Claimant had done or might do a protected act?

2.3 Did the Respondent do the following things:2.3.1 Between 25 July 2023 and the Claimant’s last day of employment did the Respondent fail to communicate via the Claimant’s Gmail account but instead sent text messages and emails to the Claimant’s old Hotmail account and her work email account during her sick leave. The Claimant says she told the Respondent to use her Gmail account.

2.3.2 On 2 August 2023 did the Respondent force the Claimant to complete her own maternity request without assistance when she was on sick leave?

2.3.3 On 10 August 2023 did the Respondent force the Claimant to cancel her annual leave whilst she was on sick leave when previously HR did this for the Claimant and other staff?

2.3.4 Did the Respondent fail to answer the Claimant's email of 17 August 2023 raising a question about why her sickness absence on the Respondent’s iTrent calendar ran past the end date for her fit note?

2.3.5 Did the Respondent delay escalating the Claimant’s complaint of 20 July 2023 to a grievance or commence investigating it until ACAS contacted the Respondent on 17 August 2023?

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

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

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

Findings

[9]The Tribunal’s findings relevant to the issues we needed to decide are, on the balance of probabilities, set out below. Claimant’s role

[10]The Claimant was employed by the Respondent from 19 June 2019 until 30 September 2023. The Respondent is the UK’s largest charity for those affected by Multiple Sclerosis (“MS”).

[11]The Claimant worked as Information and Support Officer (North West Wales) for 22.5 hours per week on a compressed hours basis. The role was fixed term. She initially worked on a project called My MS, My Rights, My Choices. In 2020 the Respondent secured funding for a successor project, namely the Pontio Project. The Claimant continued to work on this project until 30 September 2023 when her employment ended by reason of redundancy.

[12]Clause 4.3 of the Claimant’s contract of employment provided that she could take up other paid employment outside of the Respondent so long as certain conditions were met. These included that she must inform the Respondent in writing before taking up such work and keep the Respondent informed of the nature and hours of any such work [98]. The Claimant worked two days per week for Parkinson’s UK.

[13]The Claimant’s job description sets out her duties [198-203]. The role location is described as ‘home based, Wales’. The job description provides a breakdown in percentages of the constituent parts of the role. 30% of the role was to provide general information and emotional support to the MS community. This could be ‘by telephone or personal visit as appropriate’. There was a 50/50 split between telephone support and home visits to service users. 20% of her role would be to act as an advocate for those affected by MS (particularly with regards to obtaining welfare benefits), 25% of the role would be to recruit, train and support a group of volunteers, and 15% of the role would be to contribute to service development and promotion including developing and maintaining positive working relationships with MS Specialist teams. Monitoring and reporting on performance comprised the remaining 10% of the role. The Claimant would be required to drive to visit service users. She would also be required to travel to hospitals when carrying out visits or for multi-disciplinary team meetings. The Pontio Project

[14]The Claimant, together with other colleagues on the Pontio Project, had concerns about the information being given to services users about the project’s closure. We find that these concerns began at least from March 2023 when a Q&A document was shared with relevant colleagues containing the Respondent’s position on why the project was closing [221]. Concerns intensified in May 2023 when a second version of the Q&A was published in the public domain.

[15]The MS community, including service users and volunteers, were upset not just at the closure of the project but because they considered that there were other sources of funding that could have been explored to keep the project, or the services it offered, going. Fiona McDonald, who was Policy, Press and Campaigns Manager (Wales) at the relevant time, sent an email to the Claimant’s line manager, Adele Gilmour, on 03 July 2023 capturing the strength of feeling amongst the MS community and attaching comments from MS community members [243-250]. Within the Pontio Project team, there was uncertainty about what arrangements might be put in place to replace all, or part, of the services that the project had provided.

[16]Issues of funding, the projects the Respondent supports, or the sincerity of the Respondent’s position in its communications with the MS community are not issues for this Tribunal to determine.

[17]The Tribunal accepts that the Claimant’s role in supporting those affected by MS is emotionally demanding. We also find that from spring 2023 onwards, those demands were increased. This was due to the strength of feeling amongst the MS community about the closure of the Pontio Project and a sense of confusion or uncertainty amongst colleagues working on the project about future funding to assist service users.

[18]The Claimant’s role with Parkinson’s UK was very similar to the role she undertook for the Respondent. Each involved the provision of information and support to those with neurological conditions. There were, however, some important differences between the roles following the Claimant notifying each employer of her pregnancy. Following a risk assessment by Parkinson’s UK when the Claimant informed it of her pregnancy, risks were identified with the emotive nature of the role and home visits. The Claimant’s duties were subsequently altered by Parkinson’s UK. She was allowed to work entirely from home. She did not need to travel. She was not required to carry out home visits or hospital visits for multi-disciplinary team meetings. Her case load was adjusted so that she no longer needed to provide support to those experiencing suicidal ideation. The Tribunal finds that while the roles at both employers were very similar in all material respects, the working conditions after the Claimant had notified her employers of her pregnancy were different in each workplace. Notification to Respondent of pregnancy

[19]The Claimant notified the Respondent of her pregnancy on 26 April 2023 in an email sent to Dan Liddiard, HR Adviser [219]. This was her third pregnancy. She had hyperemesis gravidarum, which results in severe nausea and vomiting during pregnancy. Her line manager, Adele Gilmour, and colleague Fiona McDonald knew of her pregnancy around a week before then when she shared the news with them in confidence. It was not, however, until 26 April 2023 that the Respondent was notified formally.

[20]On 26 April 2023 the Claimant also sent an email to the Respondent’s All Wales account to say that she was pregnant. She explained: “It has been quite a difficult and uncertain pregnancy so far with a few complications over the last few weeks. Whilst we are not out of the woods yet, everything is ok at the moment and I am being well looked after and now Consultant led as this is a high-risk pregnancy due to my previous pregnancies” [235].

[21]In her email to Dan Liddiard the Claimant did not say that it was a high risk pregnancy. She did explain that she had been unwell and that her sickness absence over the previous month had, in fact, been pregnancy-related sickness. She explained that she would forward her MAT B1 form (a certificate enabling an employee to claim statutory maternity pay) to her employer when she was given it when she reached 25 weeks. Risk assessment: initial response

[22]On 27 April 2023 Dan Liddiard replied to the Claimant’s email informing him of her pregnancy. He told her that a member of the HR team would be in touch in the coming weeks to discuss a few things including a risk assessment [218]. He attached the Respondent’s Family Friendly Policy, which had last been updated in 2022. Paragraph 6.2 of this policy sets out the eligibility requirements for maternity pay [155]. Paragraph 6.5, in respect of evidence for statutory maternity pay, says: The employee must provide the HR team with a MAT B1 certificate that confirms the EWC. This is provided by the GP or midwife and should be issued after the 27th week of the employee’s pregnancy in order to be valid for SMP purposes.

[23]The Family Friendly Policy, at paragraph 4.2, also includes details of when the Respondent will conduct a pregnancy risk assessment and who will do it. It states: As soon as a pregnant employee has notified HR of their pregnancy, HR will arrange for a risk assessment to be carried out. Any necessary reasonable adjustments will then be made.

[24]We find that the primary responsibility for arranging a risk assessment sat with HR and that the obligation to arrange one would, according to the Respondent’s policy, be triggered as soon as an employee informed HR of their pregnancy.

[25]The Respondent has a lone working policy [443]. In it the Respondent identifies ‘home visiting’ as ‘the highest risk’ of all lone working risks. The policy is clear that lone home visiting should generally not be undertaken [444]. Other lone working risks identified by the Respondent include travel, lone activities, and ‘meeting people affected by MS who have a mental health problem’ [445]. The Claimant would encounter service users who could be verbally aggressive.

[26]The Respondent has a generic risk assessment covering all its properties [106]. This lists a range of factors and rates them according to a risk factor. Level 9 is the highest risk factor. Lone working is identified as a hazard and given a risk factor of 9 [111].

[27]The Respondent also has a template pregnancy risk assessment. This should be completed by the employer and their line manager ‘with the support of HR’ [134]. It identifies a range of hazards including work related stress [135]. Lone working is not listed as a special hazard in the template.

[28]At the relevant time, there were six colleagues in the Respondent’s HR team led by Caroline Woolley, Head of HR. Dan Liddiard and Lucy Dudley are HR Advisers, who report to Bronwyn Hughes-Thomas, Head of HR Operations. She reports to Caroline Woolley. Isabel Jaffe was HR Business Partner (Pay and Benefits). She dealt with matters relating to maternity and was due to retire at the end of April 2023. The intention was for Lucy Dudley to take on responsibility for pregnancy risk assessments as part of the handover of Isabel Jaffe’s work.

[29]In addition to the operational and advisory work carried out by HR, the team were experiencing a particularly busy period including the implementation of a new internal HR system in January 2023 (iTrent) and a pay reward review project that began in February 2023.

[30]On 26 April 2023 (the day he was notified of the Claimant’s pregnancy), Dan Liddiard forwarded the Claimant’s email to Isabel Jaffe and Lucy Dudley. He cc’d Bronwyn Hughes-Thomas [220].

[31]We find that on 26 April 2023 four members of the Respondent’s HR team knew of the Claimant’s pregnancy. Timing of risk assessment

[32]On 27 April 2023 the Claimant emailed Dan Liddiard to check her understanding of her entitlement to maternity pay. She appears to have read the relevant section of the Family Friendly Policy as she references the eligibility requirements set out in section 6.2 [218]. On 28 April 2023 Dan Liddiard replied to say that the Respondent would be in a better position to advise on maternity pay when it received the MAT B1. The Claimant wrote again to say that this was causing her anxiety and was told later that day that the Respondent would need the MAT B1 to give correct advice [218].

[33]On 02 May 2023 Adele Gilmour attended a Teams meeting with Shelley Elgin, Country Director for Wales. The Claimant’s pregnancy and her pregnancy-related illness were discussed. Adele Gilmour undertook to catch up with HR about the Claimant’s risk assessment, which she did on 03 May 2023 [226]. Adele Gilmour’s email to Dan Liddiard is brief and clear. In addition to asking about the Claimant’s entitlement to maternity pay, she asks: Do I need to do a risk assessment on Cat now that we know she is pregnant and a high risk pregnancy? Is there anything I need to do at the moment? I am having a catch up with her today so want to be clear.

[34]Dan Liddiard was not a witness in these proceedings. The bundle contained an undated note written by him for the purposes of the subsequent grievance investigation [261-262]. In this, against the date 03/05, he wrote ‘mistake by me’. He wrote that he missed the part in Adele Gilmour’s email which described the Claimant’s pregnancy as high risk. Given the brevity and clarity of her email, the Tribunal found that it was more likely than not that the Respondent had known, as of 03 May 2023, that the Claimant’s pregnancy was high risk as well as the fact that she had pregnancy related sickness.

[35]Dan Liddiard’s notes record that Lucy Dudley told him that she had gone through risk assessment training with Isabel Jaffe but that there had been no indication given as to when the risk assessment would happen. He wrote: I assumed there must be a trigger point when we do risk assessments, I thought MATB1 receipt must be when we do it. I remember various times Isabel telling me about maternities when we had spoken generally, it reminded her she needed to do risk assessments and she would say “oh I must remember to do this”. So I think I saw it as less priority when first comes through – how it seemed to me.

[36]His notes also record that he had understood the Claimant to be asking, on 28 April 2023, for a more specific breakdown of maternity entitlements due to her being on a fixed term contract and that he had ‘run this by my manager’ [261]. The Tribunal found that this was a reference to Dan Liddiard having checked the position on maternity pay with Bronwyn Hughes Thomas.

[37]On 03 May 2023 Dan Liddiard wrote to Adele Gilmour that ‘HR will do risk assessment with Cat in coming weeks once MATB1 is sent on to us’ [226]. He also explained that he was waiting on the MAT B1 to provide information about maternity pay.

[38]The Tribunal finds that as of 03 May 2023 the Respondent’s stance on when the risk assessment would take place had changed. Having originally said that HR would be in touch with the Claimant in the coming weeks, we find that the question of the timing of the risk assessment had, by then, become bound up with receipt of the MAT B1. This was contrary to what was stated in the Respondent’s policy. We also find that the Respondent was clear that responsibility for carrying out the risk assessment would lie with HR.

[39]Following receipt of the email from Dan Liddiard, Adele Gilmour met with the Claimant via Teams to relay what she had been told about the Claimant needing to wait for receipt of her MAT B1 for a risk assessment to be carried out. We find that both the Claimant and her line manager had understood the position to be as told to them by HR, namely that a risk assessment would not be undertaken for some time until the Claimant had given the Respondent a MAT B1. Pregnancy related illness and driving

[40]On 10 May 2023 the Claimant emailed Adele Gilmour to say that she had spoken with her midwife that morning due to dizziness and had been asked to refrain from driving as much as possible. Adele Gilmour replied to say ‘OK, you must not drive! Take it easy’ [230].

[41]We do not accept the Respondent’s characterisation of this email as amounting to an informal pregnancy specific risk assessment. We reach this view for two reasons. First, it had been made clear to Adele Gilmour by HR that it would conduct a risk assessment but that it would not do so until it had received a MAT B1. Adele Gilmour, as line manager, did not undertake a risk assessment. We make no criticism of Adele Gilmour in this respect. She had been told, in direct response to asking whether she needed to carry out a risk assessment, that she did not need to do so. Second, when read objectively, it cannot reasonably be said that an email response of ‘you must not drive! Take it easy’ constituted a pregnancy specific risk assessment.

[42]We find that Adele Gilmour was concerned about the Claimant’s wellbeing. On 11 May 2023 she met with Shelley Elgin and asked if someone could check on the Claimant during upcoming annual leave. She repeated to Shelley Elgin what she had been told by HR about the Claimant having to wait on a MAT B1 form before a risk assessment could be undertaken [225].

[43]On 12 May 2023 the Claimant told Shelley Elgin that she had been asked to refrain from driving as much as possible due to experiencing dizzy episodes and faints. This was in the context of the Claimant intending to visit a listening event with service users, which was due to be held on 25 May 2023 [235]. Shelley Elgin acknowledged that the Claimant seemed to be having a difficult time with her pregnancy and told her to take care of herself. We find this to be a polite, kind email from a senior employee of the Respondent. It was not a risk assessment.

[44]On 17 May 2023 Ed Jarin, HR Adviser, emailed the Claimant about another matter. In her response on 18 May 2023, the Claimant mentioned that she was pregnant, there had been complications, and she had been sick. She said that she had been told to refrain from driving [237]. We therefore find that by 18 May 2023, the Claimant had informed another member of the Respondent’s HR team of an additional factor in her pregnancy, namely that she had been asked to refrain from driving.

[45]Despite her intention to go to the listening event, the Claimant informed Shelley Elgin and Ed Jarin on 24 May 2023 that she would not be attending. She described multiple appointments with her midwife over the past couple of weeks, dizziness, and low blood pressure. For these reasons, she was unhappy to drive [238]. On 26 May 2023 Shelley Elgin asked if there was anything she could do to support the Claimant and said she was free that morning for a catch up [239]. Adele Gilmour was on annual leave at this time. Shelley Elgin was acting as line manager in Adele Gilmour’s absence.

[46]The Claimant says that, by this point, the working relationship with Shelley Elgin had become strained due to ongoing concerns about the closure of the Pontio Project. Read objectively, Shelley Elgin’s offer of a catch up appears sincere. The Claimant replied to her offer to say that she was ok but her blood pressure had been low and she had double vision. The Claimant’s email is professional and chatty. She gives details of her personal life. She suggests catching up the following week. An objective reading of this correspondence suggests an ongoing, professional relationship. We therefore do not accept that the Claimant would have been unable to seek support from Shelley Elgin or that Shelley Elgin’s offer of help was disingenuous. We do accept that there were concerns about the Pontio Project’s closure and that the Claimant was encountering these in her role.

[47]Following Adele Gilmour’s return from holiday, she met with Shelley Elgin on 06 June 2023 [241]. Shelley Elgin acknowledged the ongoing difficult situation faced by colleagues on the Pontio Project. In respect of the Claimant, Adele Gilmour explained that she was still having trouble with her pregnancy and was ‘mainly’ working through phone and technology due to not driving long distances. We find that, by early June 2023, the Claimant was not working from home exclusively for the Respondent. She was still driving some distances.

[48]Adele Gilmour was hospitalised in early July 2023. She was on sick leave from 10 July 2023 to 29 August 2023. In her absence, the Claimant sent an email to Shelley Elgin on 13 July 2023 on behalf of herself and other colleagues to ask if they could be excused from the wider team huddles [251]. She wrote: We have to deal with emotional clients/volunteers on a weekly basis who are incredibly upset about the closure of this project. It feels like the organisation has completely given up on the project, is not listening to its community and it is becoming harder and harder to do our jobs. Not because we can't, but because so many of our conversations are even more emotive than usual. I know we are meant to signpost any complaints/concerns to you, but we are not getting consent from clients to do this as they have lost faith and trust in the organisation.

[49]Shelley Elgin replied to say that she understood how difficult it was and that, while she would prefer the team to attend the huddle, she could explore other ways of keeping in touch. She said that she intended to hold one to one meetings with the team.

[50]We therefore find that by mid July 2023 there were considerable additional emotional demands being placed on the Claimant in her day-to-day work. We find that she was having to manage these demands at a time when her line manager, with whom she enjoyed a supportive working relationship, was on long-term sick leave. We also find that these demands were known to the Respondent. Shelley Elgin had been informed of the Claimant’s difficulties during pregnancy by both the Claimant and Adele Gilmour. She had acknowledged the sensitive working situation due to the Pontio Project closing. Grievance

[51]On 20 July 2023 the Claimant emailed the Respondent’s generic HR account and Carolyn Woolley, cc’ing Shelley Elgin and Adele Gilmour, to complain about the lack of care shown to her during her pregnancy. She referenced the emotive nature of her work and the expectation to carry out home visits. She complained about the lack of a response to her query regarding maternity pay. She explained what she now understood to be the case about the timing of a risk assessment, namely that the MAT B1 was not relevant to the question of risks to herself or her unborn baby [252]. She cancelled a meeting with Shelley Elgin the following day due to ongoing morning sickness and stomach pains [253].

[52]Shelley Elgin replied that day to see how she might support the Claimant. She provided the Claimant with details of the Respondent’s Employee Assistance Programme [253].

[53]Ed Jarin acknowledged receipt of the Claimant’s complaint on 21 July 2023. He asked Lucy Dudley to arrange for the risk assessment to be carried out [254]. The Claimant’s ‘out of office’ message said that she would be back at work on 26 July 2023.

[54]On 24 July 2023 Shelley Elgin, as the Claimant’s acting line manager, asked HR what needed to be done by way of completing a risk assessment as a matter of urgency. Lucy Dudley replied to say that Shelley Elgin did not need to complete any paperwork. She said that HR had arranged for the risk assessment to take place on the Claimant’s return to work on 26 July 2023 [255].

[55]We find that this was the second line manager who had checked with HR about who was responsible for carrying out the risk assessment. This was also the second response from HR to say that it was a matter for them. The Respondent’s pregnancy risk assessment will typically take around 30 minutes to complete.

[56]In her oral account Carolyn Woolley suggested that the risk assessment was a collaborative process with line managers being best placed to ‘feed into this’. The Tribunal finds that while line managers will participate in the process (the pregnancy specific risk assessment template makes clear that they will do so), responsibility for arranging and conducting the risk assessment lies with HR. This is clear from the Respondent’s Family Friendly Policy. The Respondent’s position on this was explained by Dan Liddiard to Adele Gilmour and then reiterated by Lucy Dudley to Shelley Elgin. The Claimant’s line managers did not conduct a risk assessment with her as they were told that it was not for them to do so. Claimant’s sickness absence and contact

[57]On 25 July 2023 the Claimant submitted a sick note signing her off with work related stress affecting pregnancy between 25 July 2023 and 08 August 2023 [256-257]. She provided details of her Gmail address for the Respondent to use. She asked for all correspondence to be sent to this. She submitted her MAT B1 on the same day [258].

[58]The iTrent system maintains personal contact details for employees. It is also used to record maternity leave, annual leave, and sick leave. There is no need to access email to use iTrent. So long as an employee is logged into their workplace account, they can use the single sign-on function to provide their log in details. A verification code will be sent to their phone to allow access.

[59]On 26 July 2023 Lucy Dudley emailed the Claimant’s Gmail account to ask whether she would like the risk assessment conducted in her absence. It had been scheduled for that day [263]. This email, and some others from HR, had gone to the Claimant’s spam folder. On 01 August 2023 the Claimant replied to say that she would prefer to wait for the risk assessment to be done on her return to work [263].

[60]On 26 July 2023 Ed Jarin emailed the Claimant’s work and Hotmail accounts about arranging an occupational health assessment [270]. He had taken her Hotmail address from the personal contact details recorded on iTrent. On 01 August 2023 Ed Jarin sent another email to what appears be the Claimant’s Gmail account (as her response came from this account) to say he realised that he had been using the wrong email address [269]. By this point the Claimant had received an email from Bronwyn Hughes-Thomas telling her that she needed to respond regarding the OH appointment. The Claimant had not appreciated that an email had been sent to her about this [268]. She was happy to attend an OH assessment on her return to work.

[61]On 01 August 2023 the Claimant emailed HR, Caroline Woolley, Adele Gilmour, Bronwyn Hughes Thomas, Lucy Dudley and Shelley Elgin to remind them that she had asked for her Gmail account to be used. She felt bombarded. She asked for emails to be streamlined rather than to come from multiple different people [273-274]. The Tribunal finds that this was a busier than usual period for HR and that the team were in a period of transition due to Isabel Jaffe’s retirement. It finds that different HR colleagues were dealing with different aspects of the Claimant’s employment depending on their responsibilities. We accept that some emails were initially sent to accounts other than Gmail or went to the spam folder.

[62]The Claimant asked Bronwyn Hughes Thomas on 01 August 2023 if she could record the date of her maternity leave on the Respondent’s iTrent system on the Claimant’s behalf. She wrote: ‘If possible can you record the date for me please?’ She said that otherwise she would need to go into her work emails and phone to get a verification code to access the system [274].

[63]Carolyn Woolley accepted under cross-examination that some colleagues initially had problems with accessing iTrent depending on which internet browser they were using. The Claimant had been sent a link to access iTrent via her work email. While the Claimant may have used that link as a more convenient way to access the system, we accept the Respondent’s evidence that the system could have been accessed without having to log on to email. This would have required the Claimant to log into the Respondent’s system using single sign-on but could be done without accessing email.

[64]On 02 August 2023 Bronwyn Hughes-Thomas wrote to the Claimant [271- 272]. She apologised for the number of emails from different colleagues but explained that each was dealing with a different aspect of the Claimant’s case. She noted that the iTrent system contained a different personal email for the Claimant. We find that employees are responsible for recording up-todate contact information on iTrent. Bronwyn Hughes-Thomas updated the Claimant’s details to her Gmail account after 01 August 2023.

[65]The Claimant was told by Bronwyn Hughes Thomas that HR could not complete the maternity request form for the Claimant and that she was happy for this to await the Claimant’s return. She said that she would not email the Claimant any further about the form. Carolyn Woolley accepted under crossexamination that it would technically have been possible for the Respondent to record details of the Claimant’s maternity leave so long as it had details of all the relevant information. This included details of whether pension contributions should continue. The form is accessed from iTrent. It is straightforward to complete. It involves filling in details of the start and end dates of maternity leave, the issue date for the MAT B1, and whether pension contributions should be continued [486].

[66]On 07 August 2023 the Claimant submitted another sick note for ‘stress at work affecting pregnancy’. This signed her off to 04 September 2023 [275]. The Claimant had been due to go on annual leave at the end of August 2023. On 10 August 2023 she asked Bronwyn Hughes Thomas ‘is it possible to cancel this leave please?’ as she was now signed off to the beginning of September [303].

[67]On 11 August 2023 Bronwyn Hughes Thomas told the Claimant that she could cancel her holiday as this had not yet been taken. She said that if the Claimant had any problems with this, HR could help her [302]. We find that Bronwyn Hughes Thomas had understood the Claimant to be asking whether it was possible to cancel pre-booked annual leave in these circumstances. Read objectively, the Claimant’s email did not ask Bronwyn Hughes Thomas to cancel the leave for her. The Tribunal accepted the evidence of Carolyn Woolley that employees could cancel leave themselves if the annual leave had not yet been taken. If it had been taken, a further approval process was needed to ensure that the system was not abused. In that case, HR would become involved in the process. The offer of assistance from Bronywn Hughes Thomas was genuine.

[68]The Claimant was sent details of her maternity entitlements on 11 August 2023 [279]. There was some further discussion between the Claimant and Respondent about how the payments were calculated and their accuracy.

[69]An OH appointment was arranged for 05 September 2023. The Respondent wanted to bring this forward to 30 August 2023. Where an employee is experiencing stress at work, a stress risk assessment is dealt with through the OH process. The Claimant was unable to attend this earlier date [291-292]. On 24 August 2023 the Claimant told her midwife that she intended to be on holiday the following week. We found the Claimant to give an honest account of her illness to the Tribunal. She had previously experienced post-traumatic stress following the illness of her baby in 2021. She had been prescribed medication for her mental health during her current pregnancy although was reluctant to take this.

[70]At her next midwife’s appointment on 08 September 2023, there appears to have been a deterioration in the Claimant’s health, particularly her mental health [441]. She continued to work at Parkinson’s UK two days per week but was not working for the Respondent at this time. She was observed at the appointment to be very emotional with work-related stress. She was continuing to experience nausea. A query is noted as to whether this was related to stress. She was advised to contact her GP regarding her mental health.

[71]The Tribunal found that the Claimant had been signed off work at the time she cancelled her annual leave in mid-August 2023. It found that by 24 August 2023 she had told her midwife that she intended to go on holiday. In her oral account, the Claimant was insistent that she did not go on holiday at the end of August 2023. On balance, it is unlikely that the Claimant would have gone on holiday at this time given her deteriorating health. However, even if the Claimant did go away on leave at this time, we find that this is not inconsistent with her account of experiencing work related stress. What is clear from the objective medical evidence is that there was a deterioration in the Claimant’s health between her midwife appointments on 24 August and 08 September 2023, and that her medical team had concerns about the anxiety she was experiencing.

[72]The Claimant did not return to work for the Respondent. On 17 August 2023 she emailed Ed Jarin in respect of the OH appointment and mentioned that iTrent was showing that she was on sick leave until the end of her contract. She queried whether this was a mistake or procedure [291]. He forwarded the email to Bronywn Hughes Thomas who told him on 30 August 2023 that the Claimant needed another fit note [290]. Ed Jarin contacted the Claimant on 30 August 2023 to explain that her current fit note would expire on 04 September 2023 and an OH appointment had been booked for 06 September 2023. He asked if she could have her fit note extended as she would need to attend the OH appointment before returning to work [307]. The Claimant was subsequently signed off with ‘stress at work’ from 04 September 2023 to 08 October 2023 [316]. Her employment ended on 30 September 2023 with the closure of the Pontio Project. Dealing with grievance

[73]The Claimant had submitted her initial complaint on 20 July 2023. We find that this was during the holiday period. On 18 August 2023 Bronwyn Hughes Thomas wrote to the Claimant [283]. She apologised for the delay in responding. She told her that an investigator had been appointed from outside of HR to investigate the matter under the Respondent’s grievance policy. According to the policy, the aim is for a first formal meeting to discuss the grievance to be arranged within 14 days [129]. The Claimant was not told the name of the investigator at this point.

[74]Caroline Woolley received a letter from ACAS regarding the Claimant on 18 August 2023. It was received by the Respondent on 17 August 2023. The HR team were out of the office on an away day on 17 August 2023.

[75]Barbara Spreadborough, Head of Corporate and Trust Partnerships, was asked by Bronwyn Hughes Thomas on 21 August 2023 to lead the grievance investigation. On 23 August 2023 Bronwyn Hughes Thomas wrote to the Claimant to say that Barbara Spreadborough had been appointed and had emailed the Claimant [282]. The Claimant had not received this email [281]. The Claimant provided a more detailed account of her grievance on 24 August 2023 [284]. Barbara Spreadborough wrote to the Claimant on 31 August 2023 to check her understanding of the allegations raised [311]. Following the conclusion of the grievance process, an outcome letter was sent to the Claimant’s husband (at her request) on 03 November 2023. The Claimant had by this time submitted her claim to the Tribunal on 04 October 2023. She appealed the grievance outcome on 09 November 2023 [395].

Law

[76]Discrimination by way of subjecting an employee to a detriment is unlawful by virtue of section 39(2)(d) of the Equality Act 2010 (the “Act”). The protection against discrimination applies to certain protected characteristics set out in section 4 of the Act, which include ‘pregnancy and maternity’.

[77]Section 18(2) of the Act provides that: “A person(a) (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably - (a) because of the pregnancy; or

(b) because of illness suffered by her as a result of it”. Section 18(6) defines the protected period. It is not in dispute in this case that the Claimant was in the protected period when the alleged incidents of pregnancy discrimination happened.

[78]Unfavourable treatment is not defined in the Act. We had regard to the EHRC Code of Practice on Employment. Section 15(4) of the Equality Act 2006 provides that where a code has been issued, it shall be taken into account by a Tribunal in any case where it appears to the Tribunal to be relevant. The EHRC Code of Practice on Employment does not discuss ‘unfavourable treatment’ in the context of pregnancy but does in relation to disability. It describes unfavourable treatment as having been put at a disadvantage.

[79]In determining detriment, the question is whether the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it is to her detriment or disadvantage (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL). There is no need for any physical or economic consequences. An unjustified sense of grievance is insufficient. Detriment is also given a wide interpretation under the EHRC Employment Code: ‘Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage.’

[80]The unfavourable treatment under section 18 of the Act must be because of the pregnancy or because of illness suffered as a result of it. In Indigo Design Build and Management Ltd and anor v Martinez EAT 0020/14, it was held that a Tribunal needs to look at the grounds for the treatment, that is, the reasons for it, and what was operating in the mind of the Respondent. It is not enough for pregnancy to be the background context against which the treatment occurred. It must be the “reason why” or form an important factor or an effective cause of the treatment.

[81]A claim of pregnancy discrimination does not require the Claimant to identify a comparator who has been treated less favourably, but it does require her to establish that she has experienced unfavourable treatment ‘because of’ her pregnancy or an illness related to it (section 18(2) of the Act).

[82]An employer’s failure to carry out a risk assessment under the Management of Health and Safety at Work Regulations 1999 SI 1999/3242 (‘the 1999 Regulations’) may, in the case of a pregnant worker, entitle her to bring a complaint of pregnancy and maternity discrimination under section 18. Regulation 3(1)(a) provides that every employer shall make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work.

[83]In the case of new or expectant mothers, Regulation 16(1) provides that where persons working in an undertaking include women of child-bearing age and ‘the work is of a kind that could involve a risk of harm or danger to the health and safety of a new or expectant mother or her baby’, the assessment required under Regulation 3(1) shall also include an assessment of that risk. This requirement is for an individualised risk assessment.

[84]In Madarassy v Nomura International plc

[2007] ICR 867

, the Court of Appeal held that the work must involve a potential risk to health and safety for the employer to be obliged to carry out a risk assessment under Regulation 16. The Tribunal must be satisfied that the work involved a risk to the Claimant’s health and safety. Madarassy was followed by the EAT case of O’Neill v Buckinghamshire County Council

[2010] IRLR 384

, which set out when the requirement to carry out a pregnancy risk assessment is triggered, namely(i) the employee notifies the employer in writing that she is pregnant;

(ii) the work is of a kind which could involve a risk of harm or danger to the health and safety of a new expectant mother or that of her baby; and

(iii) the risk arises from either processes or working conditions (or chemical agents, which is not an issue here).

[85]Where, as in this case, the mental processes of the alleged discriminator are in issue, the Tribunal should apply the same process of reasoning as is required in any other discrimination case. It must therefore be shown that the unfavourable treatment was ‘because of’ pregnancy. Discrimination need not be intentional.

[86]In terms of the burden of proof, section 136(2) of the Act states that if there are facts from which the Tribunal could decide, in the absence of any other explanation, that a person contravened a provision of the Act, the Tribunal must hold that the contravention occurred. This means that if there are facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic, the burden of proof shifts to the Respondent. The Respondent must then prove that the treatment was in no sense whatsoever on the grounds of pregnancy. If there is a prima facie case and the explanation for that treatment is unsatisfactory, then the Tribunal must make a finding of discrimination.

[87]In Igen v Wong

[2005] ICR 931

the court set out ‘revised Barton guidance’ on the shifting burden of proof. We bear in mind that the court’s guidance is not a substitute for the statutory language and that the statute must be the starting point. Nevertheless, the guidance remains of importance (Field v Pye and Co (KL) Limited

[2022] EAT 68

]).

[88]The burden of proof is firstly on the Claimant to show facts from which we could properly and fairly conclude that the difference in treatment was because of the protected characteristic. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the Respondent has committed an unlawful act of discrimination. “Something more” is needed (Madarassy v Nomura International plc

[2007] EWCA Civ 33

), although this need not be a great deal: “In some instances it will be furnished by nonresponse, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred..." (Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

.) It is necessary for the Tribunal to adopt a holistic approach and look at matters in the round. If the burden shifts to the Respondent, it must then provide an “adequate” explanation, which proves on the balance of probabilities that the protected characteristic was in no sense whatsoever on the grounds of pregnancy. The Respondent would normally be required to produce “cogent evidence”.

[89]Section 27 of the Equality Act 2010 provides that a person victimises another if he subjects that person to a detriment because he has done a protected act. Guidance on the causative test can be found in Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

where the House of Lords held that the causative test for victimisation was not a strict ‘but for’ test. Instead the Tribunal should focus on what was the real reason for the Respondent’s conduct. Conclusions Pregnancy discrimination

Conclusions

[90]It is not in dispute that the alleged acts took place in the protected period. Issue 1.1.1: Failure to carry out a pregnancy specific risk assessment

[91]The Claimant notified the Respondent in writing of her pregnancy on 26 April 2023. The work was of a kind that could involve risk, by reason of her condition, to the Claimant’s health or that of her unborn child. The Claimant asserts the following risks: driving, lone working, and the situation regarding the closure of the Pontio Project. She was experiencing dizziness, fainting episodes, and extreme nausea and vomiting. Her role involved driving (whether to visit service users or multi-disciplinary team meetings) and lone working. The lone working was at home and in the riskier environment of visiting services users in their homes. In addition to the risks to physical safety of driving (which she had been asked by her healthcare team to refrain from doing as much as possible), her role made considerable emotional demands of her. The very nature of her work involved dealing with those affected by MS and helping them access support. The emotional demands were exacerbated in an environment which the Respondent accepted was difficult due to the feelings amongst the MS Community around the closure of the Pontio Project. The Claimant encountered those heightened feelings in her dealings with service users. The risk to the Claimant arose from her working conditions. The risk was real. She had been signed off initially with stress affecting her pregnancy, not simply workplace stress. We have found the Claimant to be a reliable witness in testifying to the views of her healthcare team about the risks to her health and that of her unborn child. The duty to carry out an individualised pregnancy risk assessment was therefore triggered.

[92]The Respondent failed to carry out an individualised pregnancy-risk assessment. A reasonable worker, particularly in the context of a high risk pregnancy, would regard this treatment as placing them at a disadvantage. This was a detriment.

[93]Was the treatment because of pregnancy? There were primary facts from which we could properly and fairly conclude that any unfavourable treatment was because of pregnancy. We considered carefully whether the Claimant had been able to show ‘something more’ than unfavourable treatment and pregnancy. There are several facts, when considered holistically, that could lead us to conclude that the treatment was because of pregnancy. The Tribunal considered the following factors in particular:(i) The Respondent’s consistent failure to follow its own Family Friendly policy, recently updated, on pregnancy and risk assessments particularly with respect to when a pregnancy risk assessment should be undertaken and who should do it;

(ii) The Respondent’s change in view between 27 April and 03 May 2023 about when a pregnancy risk assessment should be undertaken;

(iii) The Respondent’s maintenance of its position, even when informed that the Claimant’s pregnancy was high-risk, that a risk assessment would not be carried out until a MAT B1 was submitted; and

(iv) The evidence submitted by Dan Liddiard to the grievance investigation in which he describes Isabel Jaffe saying ‘oh I must remember to do this’ in the context of discussing pregnancy risk assessments. In his view, he inferred from this that pregnancy specific risk assessments had ‘less priority’ when pregnancy was first notified to the Respondent. Read objectively, we considered that an inference may be drawn from this comment about a lack of priority being given by the Respondent to the issue of pregnancy risk assessments.

[94]Taken together, we considered that the ‘something more’ test had been made out and the burden passes to the Respondent to provide an explanation for the unfavourable treatment. The explanation must be adequate to prove that pregnancy played no part in the reason for treatment.

[95]In considering whether the Respondent has discharged the burden of proof, we considered carefully who the relevant decision-makers were. We heard from three witnesses from the Respondent. Edward Tait, a co-chair of the grievance appeal, became involved after the claim was submitted. He was unable to speak to events over the relevant period. Barbara Spreadborough led the grievance investigation. The issue we had to decide in respect of the grievance pertained to the delay in commencing the grievance. Barbara Spreadborough was appointed on 21 August 2023 and could not, therefore, give evidence on matters that occurred before this date. Carolyn Woolley, in her written account to the Tribunal, said that she first became involved in the matter on 20 July 2023 when she was sent the email from the Claimant complaining about her treatment during pregnancy.

[96]Dan Liddiard was the initial contact regarding the risk assessment. He had forwarded on the instruction to Isabel Jaffe and Lucy Dudley and cc’d Brownyn Hughes-Thomas on 26 April 2023. He was, however, still involved in the sense that he, on 03 May 2023, told Adele Gilmour that the risk assessment would not be carried out until the MAT B1 was issued. This was then the settled position of the Respondent until the Claimant raised her complaint on 20 July 2023.

[97]We acknowledged that neither Dan Liddiard (who appears to have been the person behind the decision to delay the risk assessment until receipt of the MAT B1) nor Isabel Jaffe, Lucy Dudley, or Bronwyn Hughes-Thomas were witnesses. We considered carefully the explanation given by the Respondent for their non-attendance. We accept that Isabel Jaffe no longer works for the Respondent. As for Dan Liddiard, Lucy Dudley and Bronwyn HughesThomas, Carolyn Woolley explained that the HR team had been quite distressed by events that had taken place. In her view, Dan Liddiard had apologised. She told the Tribunal that HR colleagues considered that they could not do right for doing wrong. We found this explanation unsatisfactory. It is, of course, a matter for the parties as to how they present their cases. Carolyn Woolley told the Tribunal that she hoped to present some background information to assist it. What Carolyn Woolley could not do is speak to what was in the mind of the decision-makers at the relevant time.

[98]Failure to call witness evidence from relevant persons is not necessarily fatal but may result in adverse inferences being drawn from their non-attendance. In this case, we were not given any explanation for the non-attendance of relevant decision-makers other than that the witnesses felt upset. Given the significance of the risk assessment issue in the context of the overall case and the fact that the Tribunal was told that witnesses did not wish to attend (as opposed to them not being able to attend), we acknowledge that there is little from which we can conclude that there is a non-discriminatory explanation for the Claimant’s treatment.

[99]We considered whether there might be cogent or compelling documentary evidence that could support a conclusion that pregnancy had played no part in the treatment. We heard evidence from Caroline Woolley about the pressures the HR team were under. We were invited to take Dan Liddiard’s statement prepared for the grievance investigation at face value. This statement shows contrition and that duties were being handed over to colleagues due to Isabel Jaffe’s departure. However, it also contains an observation that Dan Liddiard thought pregnancy risk assessments are less of a priority when they first come through. This evidence was not sufficiently cogent for the Respondent to discharge the burden of proof. This complaint of pregnancy discrimination is well founded and succeeds. Issue 1.1.2 – Being told by Dan Liddiard on 27 April 2023 that she would not be provided with details regarding maternity pay until receipt of MAT B1

[100]It is not in dispute that this information was not provided. The Claimant was not asking for details of her payments. It is clear in her email of 27 April 2023 to Dan Liddiard that she had read the Family Friendly Policy that he had sent. Her question was about entitlement given that her fixed term contract was coming to an end. By 28 April 2023 the Claimant had told Dan Liddiard that the situation was causing anxiety. Dan Liddiard maintained his view that he could not advise on entitlements until the MAT B1 was received.

[101]We conclude that this is a detriment. A reasonable worker might take the view that the treatment was in all the circumstances to their disadvantage. What was being sought was clarification of the policy’s operation in the more unusual circumstances of a fixed term contract coming to an end. For the reasons explained above, we conclude that there were primary facts from which we could properly and fairly conclude that any unfavourable treatment was because of pregnancy.

[102]We weighed carefully the evidence from the Respondent. Caroline Woolley explained that the Respondent waits until the MAT B1 has been received before confirming maternity pay entitlement due to a previous unfortunate experience. She was not, however, the decision maker in respect of this. We concluded that it was Dan Liddiard who had checked the position with his manager, Brownyn Hughes Thomas. Neither were witnesses in these proceedings. There was a misunderstanding about what the Claimant was asking. We have considered whether this was a simple misunderstanding or whether it is demonstrative of a lack of care being shown to a pregnant employee in circumstances where she told the Respondent that the situation was causing her anxiety. We did not consider that the Respondent had advanced cogent evidence sufficient to discharge its burden of proof. This aspect of the pregnancy discrimination claim is well-founded and succeeds. Issue 1.1.3: Delay in completing risk assessment until complaint on 20 July

[103]There was a delay in conducting the pregnancy specific risk assessment. The Claimant was not contacted by the Respondent to arrange a risk assessment until 21 July 2023 when Ed Jarin confirmed receipt of her grievance and told the Claimant that Lucy Dudley would complete the risk assessment with her. This was the second time the risk assessment had been escalated to Lucy Dudley for completion. The first was by Dan Liddiard on 26 April 2023. We accept that a reasonable worker might regard this to be to their disadvantage. It was a detriment. Viewed holistically with the factors we outlined above, we accept that there were facts from which we could conclude that there was a delay in completing the risk assessment because of pregnancy.

[104]We heard no evidence from any of the Respondent’s employees who were involved in the risk assessment issue (Dan Liddiard, Ed Jarin and particularly Lucy Dudley) to explain any possible non-discriminatory reason for the delay. We considered carefully whether there was any convincing, cogent documentary evidence that might discharge the Respondent’s burden of proof. By early May 2023 the Respondent was aware that the pregnancy was high-risk. This was reiterated in late May when Ed Jarin was told that the Claimant was concerned about driving. We acknowledged Carolyn Woolley’s account that the HR team were particularly busy at this time. We also accepted her account that a pregnancy specific risk assessment would take half an hour to complete. We noted that within days of the 20 July 2023 complaint, an appointment for a risk assessment had been arranged. We were not provided with cogent evidence to explain why, for almost three months, an appointment had not been arranged with the Claimant to undertake a risk assessment and especially when the Respondent had been aware of the Claimant’s ill health.

[105]We considered Carolyn Woolley’s adherence to her view, even under cross-examination and contrary to the Respondent’s own policies, that the Respondent’s practice is to liaise with managers regarding pregnancy specific risk assessments (rather than the responsibility lying with HR) and that there needed to be co-operation from employees. While we accept that a pregnancy risk assessment will inevitably involve discussion with an employee and input from their manager, it was for HR to arrange the risk assessment. This view, that responsibility lay with HR, was maintained by members of the HR team even in circumstances where this was questioned by Adele Gilmour and Shelley Elgin as line managers. We do not accept that the email from Adele Gilmour to the Claimant telling her ‘you must not drive!’ was an informal risk assessment and therefore mitigated any delay.

[106]In the absence of cogent evidence put forward by the Respondent from which we can conclude that there is a non-discriminatory explanation for this treatment, this complaint of pregnancy discrimination is well-founded and succeeds. Issue 1.1.4: Forcing the Claimant to complete her maternity request without assistance when off sick

[107]We found that the Claimant was not forced to complete her maternity request. She was not compelled to do so. We reminded ourselves that Bronwyn Hughes Thomas had told the Claimant that she would need to log on to iTrent to complete the relevant request but that this could await her return from sick leave. We accepted the evidence of Caroline Woolley that iTrent could be accessed without logging into email. We also accepted her evidence that while HR could complete a request on an employee’s behalf, it would need full information from that colleague including information about maintaining pension contributions.

[108]This complaint is not well-founded. We reach this conclusion for the following reasons. First, the contemporaneous written evidence in the form of an email from Bronwyn Hughes Thomas to the Claimant shows that that the Respondent expected the Claimant to return to work. The Claimant was told that the Respondent would happily wait for her to return from sick leave for the form to be completed. She was not forced to complete the form during sick leave. On the contrary, Bronwyn Hughes Thomas told the Claimant that she would not email her further about this. Read objectively, the Respondent was attempting to reassure the Claimant that the matter could wait for her return. Second, having accepted the evidence of Caroline Woolley about how iTrent works, the Claimant could have accessed the form without reading emails. Third, the process of completing the form was straightforward and simply required the input of some basic information. We do not consider that it can reasonably be said that asking the Claimant to complete the maternity request form herself is a detriment. We reminded ourselves that the matter must be considered from the position of whether a reasonable worker might take the view that this conduct was to their detriment. Notwithstanding the wide interpretation given to the meaning of detriment, we concluded that this did not reach the threshold of unfavourable treatment. Issue 1.1.5: Cancellation of annual leave in August 2023

[109]We accept the evidence of Caroline Woolley that employees can cancel annual leave via iTrent without having to access email. We accept that this would typically be done by employees themselves and that HR would usually only get involved if annual leave was being cancelled after the dates for it had passed to ensure that the system was not misused. We reminded ourselves of our findings in respect of Bronwyn Hughes Thomas’ email to the Claimant regarding annual leave. An objective reading of this is not that the Claimant was being forced to cancel annual leave herself. Bronwyn Hughes Thomas had understood the Claimant to be asking whether it is possible to cancel leave. The Claimant was told how to do this and offered help from HR if needed.

[110]We conclude that a reasonable worker would not take the view that this conduct was to their disadvantage. It does not reach the threshold of being a detriment. For this reason, this complaint is not well-founded. Issue 1.1.6: Delay in escalating grievance

[111]We accept that the delay in escalating the grievance would be considered by a reasonable worker to be to their disadvantage. It is a detriment. We accept that there are facts from which we could properly and fairly conclude that any unfavourable treatment was because of pregnancy.

[112]We considered carefully who is the decision-maker who can explain the reason for the delay. Carolyn Woolley received the complaint on 20 July 2023. We accept that she had limited involvement in the matter. Ed Jarin acknowledged the complaint on 21 July 2023. Barbara Spreadborough was not appointed until 21 August 2023 although Bronwyn Hughes Thomas had told the Claimant on 18 August 2023 that a grievance investigator from outside HR had been identified. It was also Bronwyn Hughes Thomas who asked Barbara Spreadborough to take on the role of investigator. We concluded that each of Ed Jarin and Bronwyn Hughes Thomas were involved in the early stages of the complaint with Bronwyn Hughes Thomas ultimately being the person who asked the grievance investigator to act.

[113]We considered carefully the evidence put forward by the Respondent as to any non-discriminatory reason for its treatment of the Claimant. We accept Caroline Woolley’s evidence that the HR team were out of the office on 17 August 2023 when ACAS correspondence was received. We have received no other evidence about the delay, whether orally or in documentary evidence, for the period between 20 July 2023 and 17 August 2023 other than general observations of work pressures and it being the holiday season. As Bronwyn Hughes Thomas did not attend as a witness, we were offered no explanation from her, as the person who asked Barbara Spreadborough to investigate the Claimant’s grievance, about why a grievance investigator was found in coincidental circumstances of an ACAS letter being received around the same time. We are not satisfied that the Respondent has provided cogent evidence from which we can conclude a non-discriminatory reason for the Claimant’s treatment in this respect. This complaint of pregnancy discrimination is well-founded and succeeds. Victimisation Issue 2.3.1: Failure to communicate via Gmail account

[114]It is accepted that the Claimant did a protected act, namely raise a grievance on 20 July 2023 regarding her treatment during pregnancy.

[115]We accept that the Respondent did not consistently use the Claimant’s Gmail account from 25 July 2023 onwards. On a strict reading of the issue, there was no failure by the Respondent to communicate via the Claimant’s Gmail account but there was a failure to consistently and always communicate in this way. We also accept that a reasonable worker might find this treatment to be to their disadvantage and that the Claimant found the situation to be overwhelming.

[116]We considered whether there were primary facts from which we could properly and fairly conclude that the reason for the treatment was the fact that the Claimant had done a protected act. We reminded ourselves that there needed to be something more than the protected act (grievance) and detriment for the burden of proof to shift to the Respondent. Viewed holistically, we considered that the timing between the protected act and alleged detriments and the email from Bronwyn Hughes Thomas telling the Claimant to respond about an OH appointment (in circumstances where the Respondent had corresponded to another account) were factors, in addition to our findings above about the Respondent’s failure to comply with its own family friendly policy, that could form the ‘something more’.

[117]We placed reliance on the relevant and contemporaneous written evidence from the Respondent about the reason why the Gmail account was not consistently used. We accept that the reason was not because the Claimant had carried out a protected act. We conclude that there were two reasons for the inconsistent use of the Gmail account. First, the Claimant’s contact details on iTrent gave her Hotmail address as a personal contact. Brownyn Hughes Thomas updated the contact details. Her actions were designed to remove the problem rather than being retaliatory. Second, there was a lack of a coordinated approach to dealing with the Claimant. We accept that this was a feature of this case with several individuals in a small team being involved with separate aspects of the Claimant’s employment without a single point of contact. We accept the Respondent’s explanation that this was how the work was split amongst the team rather than being retaliatory. We are satisfied that there is evidence from which we can conclude that the reason for any failure to use Gmail was not the protected act. Issue 2.3.2: Forcing the Claimant to complete her maternity request without assistance when off sick Issue 2.3.3 Cancellation of annual leave in August 2023

[118]For the reasons we explain above, we do not accept that either of these complaints amounts to a detriment. The Claimant was not forced to complete her maternity request when on sick leave. She was also not forced to cancel her annual leave herself while off sick.

[119]The request for HR to complete the maternity request on the Claimant’s behalf came at a time when it was expected that the Claimant would return from sick leave. The question to Bronwyn Hughes Thomas about whether it was possible to cancel annual leave came around a week later. In the response from Bronwyn Hughes Thomas, the Claimant is told to contact HR if she needs any help. We reminded ourselves of our findings that this was, read objectively, a genuine offer of assistance and not retaliatory in nature. Issue 2.3.4: Failure to answer email of 17 August 2023 re sickness absence

[120]We accept that Ed Jarin sent a response to the Claimant’s email of 17 August 2023 on 30 August 2023, having checked the matter with Bronwyn Hughes Thomas. The Claimant’s query was about why the iTrent system was showing her as being on sick leave to the end of her contract when her fit note expired before then. While Ed Jarin’s response might have more explicitly addressed this issue, his response is clear on the period of sickness absence and reassures the Claimant about the dates that the Respondent has recorded. We conclude that an answer was provided (albeit that it might have been phrased to deal with the point more directly) and this complaint is not well-founded. Issue 2.3.5: Delay in escalating grievance

[121]There was a delay in escalating the grievance and we accept that this was a detriment. For the reasons we discuss above, there are primary facts from which we might properly and fairly conclude that the reason for the treatment was the fact that the Claimant had done a protected act.

[122]We have considered carefully the real reason for the Respondent’s delay. We have found that the person who ultimately instructed Barbara Spreadborough to commence the grievance investigation was Bronwyn Hughes Thomas. She was not a witness in these proceedings and could not be questioned about the delay. We had no contemporaneous written evidence before us to help explain the delay such as records of any attempts that the Respondent might have taken to find a grievance investigator before it received contact from ACAS. Caroline Woolley was not involved in the grievance process other than being aware that it was ongoing. She was therefore only able to tell the Tribunal of how stretched the HR team was at this time. While a lack of resources might explain the delay, another explanation may be that the Claimant had raised a grievance against members of the HR department, who are the same people responsible for finding a grievance investigator. Moreover, we were not satisfied that the Respondent had explained the coincidental timing between the ACAS contact and finding an investigator. In sum, the Respondent had not provided cogent evidence for it to discharge the burden of proof. This complaint of victimisation is well founded and succeeds.