R Etherington v The Hound Ville Ltd and Others: 1805532/2023 and 1807749/2023
JUDGMENT
Liability issues(1) The claim for automatically unfair dismissal because of a transfer (Regulation 7 TUPE 2006 and s.94 Employment Rights Act 1996) is not upheld and is dismissed.(2) The claimant’s employment transferred from the first respondent to the third respondent on or before 5 September 2023 (Regulation 4 TUPE 2006). As a result, all claims against the first respondent are dismissed.(3) The claim of automatically unfair dismissal because of pregnancy/maternity (section 99 Employment Rights Act 1996) is upheld against the third respondent.(4) The claim for ‘ordinary’ unfair dismissal (S.94 Employment Rights Act 1996) is not upheld and is dismissed.(5) The following claims of pregnancy and maternity discrimination (S.18 Equality Act 2010) are upheld against the second and third respondent:a. Sending the claimant an email on 6 September 2023 telling her she had abused her position and used the company to obtain sufficient service to claim statutory maternity pay;b. Failing to pay the claimant maternity pay from July 2023 onwards;c. Dismissing the claimant on 6 September 2023.(6) The following claim of pregnancy and maternity discrimination (S.18 Equality Act 2010) is not upheld and is dismissed: deciding not to transfer the claimant to the Third Respondent.(7) The claimant was wrongfully dismissed by the third respondent on 6 September 2023. The claimant is entitled to one months notice.(8) A weeks holiday pay was withheld from the claimant’s wages, amounting to an unauthorised deduction in June 2023 and then again in July 2023.(9) The claimant was due additional accrued holiday pay, on the termination of her employment. Remedy Issues (1) The third respondent is ordered to pay to the claimant the sum of £435.77 in respect of the basic award for the s.99 claim. (2) The second and third respondents are ordered to pay to the claimant the sum of £14,180 as compensation for net financial losses arising out of the pregnancy-related unfavourable treatment (s.18 Equality Act 2010). No further compensation for financial loss is due to the claimant from the third respondent, in respect of the section 99 Employment Rights Act 1996 dismissal. The Recoupment Regulations therefore do not apply. Since the financial losses, basic award, and injury to feelings award for the dismissal (see below) come to less than the £30,000 tax-free limit, that sum can be paid to the claimant tax-free. If the Tribunal’s assumption in that regard is incorrect, the parties have leave to apply to the Tribunal in relation to any necessary grossing up. (Note 1) (3) The second and third respondents are ordered to pay to the claimant the sum of £7,500 for injury to feelings in relation to the pregnancy-related unfavourable pre-dismissal treatment, and £15,000 for the dismissal itself. (4) For the wages claim, the claimant is entitled to 4.5 days holiday pay, or one weeks pay, which is £423.08. The third respondent is ordered to pay that sum to the claimant. Tax is deductible. (5) For the accrued holiday pay claim, the third respondent is ordered to pay to the claimant the sum of £905.63. Tax is deductible from this sum. (Note[2](6) £1053 interest is payable on the sum set out in (2) above; and on the sum in (3) above, £3,375. (Notes 3 and 4) (7) The total award against the third respondent is the sum of (1) to (6) above, i.e. £42,872.48; of which tax may be deducted on the sum of £1337.71. (8) The total award against the second respondent is the sum of (2), (3), and (6), i.e. £41,108. (9) Where the amounts are ordered to be paid by both the second and third respondents, they are jointly and severally liable. Notes[1]Net monthly pay was £1529.62, plus employee pension contribution of £65.67 and employer contribution of £55 = £1650.29. Loss to hearing from March 2024 to 15 July 2025, is 16.5 months = £27,229.79, say £27,230. Less earnings of £1020 net pcm = 16.5 x 1020 = £16,830. Loss of earnings to hearing is therefore £10,400. Future loss of earnings is limited to 6 months. £1650 less £1020 x 6 = £3780. The total loss of earnings is £14,180.[2]The days of the holiday year accrued to 6 September = 365 less (24 + 31 + 30 + 31) = 249. 249/365 x 100 = 68.2%. Page 244 shows the respondent’s calculation as being 106.7 hours to the end of the holiday year. 68.2% of 106.7 = 72.8 hours. The hourly rate is £22,000 divided by 34 and then divided by 52 = £12.44. £12.44 x 72.8 = £905.63. Tax is deductible from this sum.[3]Interest must be considered by the Employment Tribunal. The usual rate payable is currently 8%. Bearing in mind that the discrimination occurred on 5 August and 6 September 2023, the tribunal has applied interest from 1 September, 2023, a period of 22.5 months, on the injury to feelings award. 22.5/12 x 8% x £22,500 = 0.15 x £22,500 = £3,375[4]Interest is payable from the mid-point of the financial losses award, to date. A period of 22.3 months has elapsed from 6 September 2023. Half of that is 11.15 months. Hence the interest payable is 11.15/12x 8% of £14,180 = 0.0743 x £14,180 = £1053.