Mrs Z T Sarkany v Flight Club Darts Ltd: 2201677/2024
EMPLOYMENT TRIBUNALS
Case No 2201677/2024
Between
Mrs Z T SarkanyClaimantFlight Club Darts LtdRespondent
Before
Employment Judge BatyIn person for claimantMr J Fireman (instructed by counsel) for respondentDate 4 February 2025
JUDGMENT
[1]By consent, the claimant’s complaint of unlawful deduction from wages succeeds and an award of £574.44 (subject to any tax or national insurance contributions which may be payable) is made, payable by the respondent to the claimant.[2]The tribunal does not have jurisdiction to hear the claimant’s complaints of pregnancy/maternity discrimination and harassment related to pregnancy/maternity at paragraphs2.6.1 and2.6.2 of the agreed list of issues. Accordingly, those complaints are struck out. Furthermore, these complaints were presented out of time and it would not have been just and equitable to extend time. The tribunal would not therefore have had jurisdiction to hear these complaints and they would have been struck out for that reason too.[3]The claimant’s complaints of pregnancy/maternity discrimination and harassment related to pregnancy/maternity at paragraph 2.6.3 of the agreed list of issues were presented out of time and it was not just and equitable to extend time. The tribunal does not therefore have jurisdiction to hear these complaints and they are struck out. If the tribunal had had jurisdiction to hear these complaints, they would have failed. Case No: 2201677/2024[4]The claimant’s remaining complaint of pregnancy/maternity discrimination (at paragraph 2.6.4 of the agreed list of issues) and her complaint of constructive unfair dismissal both fail. JUDGMENT having been sent to the parties on 7 February 2025 and written reasons having been requested by the claimant on 20 February 2025 in accordance with Rule 60(3) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:
REASONS
The complaints
[1]By a claim form presented to the employment tribunal on 10 February 2024, the claimant brought complaints of constructive unfair dismissal, pregnancy/maternity discrimination and harassment related to pregnancy/maternity and unlawful deduction of wages. The respondent defended the complaints.[3]At the start of the second morning of this final hearing, after the tribunal had done its preliminary reading, Mr Fireman stated that the complaint of unlawful deduction from wages would not be contested by the respondent. He said that the respondent was content to pay the sum of £574.44 sought in respect of this complaint in the claimant’s schedule of loss. This was subject to - 1 - any tax and national insurance payable, although Mr Fireman said that he thought that, given that the claimant’s employment had long since terminated, it was unlikely that there would be any tax to be deducted from that sum.[4]The claimant agreed to this. Accordingly, judgment by consent in this sum was issued, as reflected in the written judgment sent to the parties on 7 February 2025.
The issues
[5]There had been a preliminary hearing on 24 May 2024 before EJ Hodgson, at which the issues of the complaint were agreed between the judge and the parties and at which this final hearing was listed.[6]Whilst the claimant had been happy to proceed with that preliminary hearing without an interpreter, she had requested a Hungarian speaking interpreter for the final hearing. A Hungarian speaking interpreter was present throughout the final hearing.[7]However, particularly as there had been no interpreter at the preliminary hearing, the judge at the start of final hearing took some time to ensure that the issues set out in the list of issues really were the issues of the claim. In the course of this, he set out in summary for the claimant’s benefit what the law in relation to the complaints which she had brought was. He also highlighted the jurisdictional issues which the tribunal would in any event have to consider, both in terms of time limits and in relation to whether the tribunal had jurisdiction to hear the complaints brought at paragraphs2.6.1 and2.6.2 of the list of issues (which were allegations of conduct by customers/guests at the respondent’s venue rather than allegations of conduct by the respondent or its employees or agents).[8]The judge explained that, whilst there was no dispute as to whether the dismissal related complaints were in time, the tribunal would have to consider whether or not the earlier complaints were in time, whether they formed conduct extending over a period with in time complaints such that they were deemed to be in time, and, if not, whether it was just and equitable for the tribunal to extend the time limit.[9]In relation to paragraphs 2.6.1 and 2.6.2, the judge explained that the tribunal would have to consider whether it had jurisdiction to hear those complaints of pregnancy/maternity discrimination and harassment, in light of the fact that the allegations were against customers/guests at the respondent’s venue and not against employees/agents of the respondent. The claimant confirmed that these complaints were about the actions of customers/guests and not about the actions of employees of the respondent.[10]Mr Fireman said that he wanted to apply at this stage for the allegations at2.6.1 and2.6.2 to be struck out on the basis that the tribunal did not have jurisdiction to hear them. The judge said that the evidence in relation to those allegations would need to be considered in any event in the context of the - 2 - constructive unfair dismissal complaint (Mr Fireman did not disagree with this) and therefore it would be better, rather than spending time on a separate strikeout application at the start of the hearing, for the tribunal to consider this in its decision on liability generally. We therefore proceeded on that basis.[11]As part of this discussion, one change to the original list of issues was agreed. That was the addition of the words “and the respondent failed to pay her for holiday pay correctly” to paragraph 2.3 (which set out the claimant’s alleged reasons for why she resigned). The agreed list of issues is set out below (although, as the judge made clear to the parties, the tribunal would also need to determine the jurisdictional issues set out in the paragraphs above). It reflects the list of issues as set out in the case management orders from the preliminary hearing, save for the change agreed above and a couple of minor typographical errors being corrected. The wages claim set out below was, as indicated above, determined by consent. The Issues2.1 N/A.2.2 We discussed the issues and identified the following claims:2.3 The claimant alleges she was constructively and unfairly dismissed. She alleges she resigned because the employer failed to “provide a safe job under my pregnancy,” and she was paid £2 less per hour than she should have been paid and the respondent failed to pay her for holiday pay correctly.2.4 The claimant alleges she is owed wages. She will give further details in accordance with the order below.2.5 The claimant alleges harassment/direct maternity discrimination.2.6 She relies on the following allegations:2.6.1 Allegation one – daily drunk guests pushing past her and saying words to the effect “oh you are pregnant, that’s me you had sex with.”2.6.2 Allegation two – daily drunk guests saying things like “did you plan this baby or is it an accident?”2.6.3 Allegation three – by the respondent failing to transfer the claimant to an office job from reception. It is the claimant’s case that she should have been transferred when she told the respondent she was pregnant in around March 2023. She alleges she should have been transferred to the reservation team.2.6.4 Allegation four – by dismissing the claimant. - 3 -2.7 Allegations one – three are put as harassment (pregnancy/maternity) and direct pregnancy/maternity discrimination. Allegation four is put as an act of direct discrimination (pregnancy/maternity). Remedy2.8 At the full merits hearing, the tribunal may determine any remedy.
Remedy
[12]The final hearing had been listed to consider liability and, if applicable, remedy as well, and the parties and the tribunal agreed to proceed on that basis.
The evidence
[13]Witness evidence was heard from the following: For the claimant: The claimant herself. For the respondent: Ms Vikki Iggulden, who is employed by the respondent and, at all times relevant to this claim, was employed as Head of HR; Ms Anna Hayes, who is employed by the respondent and, at all times relevant to this claim, was employed as a Senior HR Adviser.[14]An agreed bundle numbered pages 1-293 was produced to the tribunal.[15]The tribunal read in advance the witness statements and any documents in the bundle to which they referred.[16]At the start of the hearing, the claimant referenced a further document which she wanted to add to the bundle. This related to holiday pay. The judge asked her to forward a copy to the respondent and said that, once the respondent had had a chance to see it, the issue of whether it should be adduced to the hearing could be decided at the beginning of the second day of the hearing, after the tribunal had done its preliminary reading. The claimant duly sent the document to the respondent. At the start of the second day of the hearing, after the unlawful deduction from wages complaint had been determined by consent, the judge asked whether the claimant wanted to adduce this document to the hearing. Mr Fireman said that he had assumed that, in light of the determination of the unlawful deduction from wages complaint, this was now historic. I asked the claimant if she wanted to ask questions of either of the respondent’s witnesses about this document or refer to it. She said that she did not. I asked whether it was necessary for the document to be adduced. The claimant said that it was not. Accordingly it was not adduced to the hearing.[17]At the start of the hearing, the judge explained for the claimant’s benefit how the hearing would proceed, explaining what cross-examination was and - 4 - what submissions were. The claimant said that she had not realised that she would have the opportunity to question the respondent’s witnesses. The judge explained that she would and suggested that she try and put together a list of the questions which she wanted to ask the respondent’s witnesses. The claimant had time to do that as the tribunal adjourned for the remainder of the first day of the hearing in order to do its reading and the respondent’s witnesses did not give evidence until the third day of the hearing. The claimant duly prepared a list of questions for those witnesses and was able to cross-examine them effectively.[18]At one point during Ms Iggulden’s evidence, the claimant said that the version of the respondent’s handbook in the bundle was not the version which she had seen at the time when she was employed. There was discussion as to whether there was another version which the claimant might adduce as evidence. The handbook in the bundle was dated September 2022, which was right in the midst of the time when the claimant was employed. Furthermore, the judge said that those sections of the handbook which the claimant appeared to have relied on in relation to maternity and which she set out in some of her emails to the respondent appeared to be the same as those set out in the handbook provided in the bundle. He therefore queried whether it was necessary to produce another version of the handbook, even if the claimant had one. The claimant said that she did not want to adduce a further version of the handbook but just wanted the tribunal to note the point that she thought that this version was different to the one which she had seen when she was an employee. The tribunal noted this and the hearing moved on.[19]A timetable for cross-examination and submissions was agreed between the tribunal and the parties at the start of the hearing. This was largely adhered to.[20]Both parties produced written submissions, which the tribunal read in advance of hearing their oral submissions.[21]Just before the tribunal adjourned to deliberate upon its decision, the claimant said that she wanted to give a heartfelt thank you to the judge and the other members of the tribunal panel for being so supportive in relation to her case and taking the time to explain everything, particularly in light of the fact that she did not have a legal background. She said she was very grateful for this support. She also thanked the interpreter very much for her assistance.[22]The tribunal then adjourned to consider its decision on liability. When the hearing reconvened on the final day of the hearing, the tribunal gave the parties it’s decision and the reasons for that decision orally.
Findings of Fact
[23]We make the following findings of fact. In doing so, we do not repeat all of the evidence, even where it is disputed, but confine our findings to those necessary to determine the agreed issues. - 5 -[24]We begin with an overview, before going on to make our more detailed findings of fact. Overview[25]The respondent describes itself on its website as the “home of social darts”. It operates a number of venues across the UK which are open to customers and guests from the general public and which offer food, drink, and darts related games. At the time of the events which are the subject of this claim, it had around 13 such venues in the UK.[26]The claimant was employed by the respondent from 13 September 2021 until 19 November 2023, at which point her employment terminated as a result of her resignation, which she submitted by email on 31 October 2023.[27]The claimant was at all times employed at the respondent’s Bloomsbury venue in London. She was employed as a receptionist. As well as reception duties of meeting and greeting guests, she was ordinarily expected to take guests from reception to the main area of the Bloomsbury venue, which was downstairs from the reception, and to show them how to operate the various games which the respondent offered.[28]At all relevant times, the manager based at and responsible for the Bloomsbury venue was Ingrida. The claimant has been clear that she makes no complaint about any of the actions of Ingrida or any other manager or employee at the Bloomsbury venue.[29]The respondent’s HR function was a centralised one and was based at a separate location. The HR team was small. Ms Iggulden was the Head of HR at the time and Ms Hayes was an HR adviser who was the primary point of contact for any HR issues which arose from any of the 13 venues. Although members of HR would from time to time visit the individual venues, they were not based at those venues. If there were HR issues at venues which needed escalating, it was expected that management at the individual venues would escalate such issues to HR.[30]At the end of March 2022, the claimant informed the respondent that she was pregnant.[31]Three individual risk assessments in relation to the claimant took place: on 1 April 2022, on 27 July 2022 and on 30 August 2022. They were all conducted with the claimant by Ingrida at the Bloomsbury venue and signed off by both the claimant and Ingrida.[32]The claimant’s last day of work prior to her maternity leave was 23 September 2022; from then on she took holiday up to the point when her maternity leave actually started on 10 October 2022.[33]The claimant’s maternity leave ended in October 2023. However, she took holiday following the end of her maternity leave such that she never - 6 - returned to work prior to the termination of her employment on 19 November 2023. In summary, therefore, the claimant was away from work after 23 September 2022 for the remainder of her employment.[34]As noted, the claimant submitted her resignation on 31 October 2023, with her employment terminating on 19 November 2023. Respective reliability of evidence[35]Before going on to set out our more detailed findings of fact, we make some findings about the respective reliability of the evidence given by the claimant and by the respondent’s witnesses. This is necessary in relation to some of the factual findings which we need to make, particularly in situations where there is no contemporaneous documentary evidence in relation to the particular finding. The respondent’s witnesses[36]The respondent’s witnesses gave clear and coherent evidence, which was for the most part consistent, both with the contents of their witness statements, with each other and with the contemporaneous documentation. The claimant criticised Ms Hayes in particular for not being able to recall certain details. However, Ms Hayes candidly accepted where she could not remember details of conversations, and it is hardly surprising that she could not remember all details of conversations in relation to events which took place 2½ years ago.[37]Where there was the occasional inconsistency, this was not of a material nature. An example which the claimant dwelt on in her questioning and her submissions was Ms Hayes’ witness statement at paragraph 24, where she stated that there was no contact with the claimant for the 12 months of her maternity leave (apart from, as she corrected herself prior to affirming the truth of her witness statement, the occasion when the claimant brought her new baby to the venue at which she worked and Ms Hayes, who happened to be there at the time, congratulated her). It was, however, clear from the email chains that the claimant contacted the respondent in August 2023 about how much outstanding holiday she had, which was some 10 months after the start of her maternity leave. Whilst it was, therefore, correct that there was some contact in the latter part of the 12 month maternity leave period, the inaccuracy in Ms Hayes’ statement was clearly accidental and not material to the issues of the case. There is nothing about that example which casts any doubt on the reliability of Ms Hayes’ evidence in general.[38]Furthermore, both of the respondent’s witnesses sought to answer the questions put to them and did their best to assist the tribunal. We did not, therefore, have any concerns about the reliability of their evidence. The claimant[39]There are a number of areas where we had concerns about the reliability of the evidence given by the claimant. We say this taking into account the - 7 - difficulties arising from the fact that the claimant’s evidence needed to be translated from Hungarian into English. However, there were certainly some areas where the claimant appeared unwilling to answer the question put and other areas where the evidence given by her appeared incoherent on the face of it. Furthermore, notwithstanding that she is a litigant in person, there were numerous areas where her oral evidence developed far beyond the allegations made by her during her employment, in her claim and in her witness statement. There are a number of examples.[40]The claimant failed on at least three occasions to properly answer the question of whether she had raised a request to move to the reservations team during any of her three risk assessment meetings. This was a key fact which went to the heart of one of the allegations of the claim (2.6.3). She provided opaque answers about requesting a safe job and then stated that she had in fact heard from her manager, Ingrida, that the option to be transferred to the reservations team had been refused earlier in the year. This was not mentioned in either her witness statement or claim form and was not evidenced in any of the correspondence within the bundle. It was also the evidence of both of the respondent’s witnesses that they had no recollection of any request for a transfer of role to the reservations team being put to them by Ingrida or anyone else prior to the claimant herself mentioning it directly to HR much later on (in an email of 13 September 2022 to Ms Iggulden).[41]In her evidence, the claimant maintained that she had made several complaints about her working environment in April, May and June 2022. All of these complaints were said to be made, on her own evidence, to management or staff working at the venue in which she was employed rather than to members of the HR Department. The claimant has been unequivocal in her evidence before this tribunal, in her claim form and in her resignation letter that her complaints are solely about HR, and that she has no complaints about her colleagues working at the venue. If, in fact, she had during this period made several requests for adjustments or complaints about feeling unsafe to these individuals and nothing had been done, it is difficult to understand why she would feel so positively about them and solely direct her complaints at HR, with whom she did not have any formal contact until July 2022.[42]At one point during her evidence, the claimant suggested that she did not know whether she had received enhanced maternity pay from the respondent, before seemingly moving away from this assertion. The claimant had been meticulous in ensuring that she received what she considered to be her correct holiday pay and had engaged in lengthy email correspondence with the respondent to make her points in this respect. It is, therefore, difficult to believe that she would not have taken the same approach with maternity pay if indeed she had any concern that she might not have been paid precisely what she was owed.[43]The claimant’s evidence about her resignation letters, and in particular her assertions that they referred to issues which occurred during her maternity leave (in particular regarding holiday pay) and not solely to issues relating to the period of her pregnancy before going on maternity leave, is not credible. She - 8 - goes into a lot of detail about the “safe environment” issues relating to her period of working when pregnant prior to her maternity leave. She does not mention the subsequent holiday pay issues which date from October 2023. Her explanation that the use of the word “problems” in amongst the lengthy narrative about the earlier events was the reason why the letter in fact also (as she asserts) referred to issues relating to holiday pay in October 2023 is not plausible.[44]Finally, the claimant’s mindset and lack of perspective is decipherable from the documentation. She implied in her witness statement that the respondent was pushing her to go on maternity leave 11 weeks early, whereas the relevant email simply informed her of her right, if she wished, to do this. The concept of how quickly things ought to have been done for her, in particular complaining when anything took more than a couple of days to do, indicated a lack of awareness of what was reasonable in the context of a small HR department where Ms Hayes, in particular, was dealing with queries from around 13 different venues in total. Finally, the claimant maintained in her witness statement that she had never received a response to an email sent by her to Ms Iggulden on 25 August 2022; however, Ms Iggulden’s response on 31 August 2022 can be seen on page 85 of the bundle and, in the interim, a further risk assessment in relation to the claimant had been completed on 30 August 2022. In short, this lack of perspective is indicative of a mindset which, consciously or unconsciously, results in a skewed perspective of the facts.[45]For all these reasons, we have concerns about the reliability of the claimant’s evidence.[46]Therefore, where there is a contradiction in the evidence of the claimant and that of the respondent’s witnesses in circumstances where there is no contemporaneous documentation to evidence what happened, we are inclined to prefer the evidence of the respondent’s witnesses to that of the claimant. More detailed findings of fact[47]As noted, at the end of March 2022, the claimant informed the respondent that she was pregnant. April 2022 risk assessment[48]A risk assessment was carried out on 1 April 2022. The risk assessment confirmed that manual handling (moving flowerpots outside the respondent’s venue) would be carried out by colleagues and not the claimant and that the claimant could use a heat curtain at reception when it was cold. It confirmed also that when the claimant was working alone she would be provided with support by her manager (Ingrida). Whilst it is not referenced on the risk assessment form, it does not appear to be in dispute that one further adjustment for the claimant was also the provision of a chair for her to use whilst working on reception.[49]The risk assessment was signed by Ingrida and by the claimant. There is nothing in the risk assessment which indicates that the claimant was not happy with the adjustments made. - 9 -[50]The claimant at this tribunal maintained, in somewhat vague terms, that some of the adjustments were not implemented. However, HR were not informed of this suggestion at the time, and the primary responsibility for implementing agreed adjustments was with Ingrida, about whom the claimant makes no complaint.[51]Furthermore, even if, as the claimant has asserted at this tribunal, the adjustment about providing a chair for her to use when she was at the reception desk involved the use of a chair that was already there, that does not imply any fault on the part of the respondent; the key point is that the claimant was provided with a chair to assist her and whether it was there already or was subsequently provided by the respondent is not relevant.[52]On 10 June 2022, the claimant provided her MAT B1 to the respondent. The MAT B1 stated that the claimant’s due date was likely to be in the week of 2 November 2022. The claimant’s email correspondence with HR[53]On 7 July 2022, having obtained Ms Hayes’ email from her local manager, the claimant for the first time contacted HR (Ms Hayes). She did so by email.[54]All of the claimant’s lengthy correspondence with HR (both with Ms Hayes and subsequently with Ms Iggulden) took place by email. This is despite Ms Iggulden subsequently having offered to have a conversation with the claimant by phone or to meet her in person, which the claimant declined to do. It is, therefore, agreed that all correspondence between the claimant and HR was by email only. We have had sight of these emails in the bundle.[55]From 7 July 2022, there followed lengthy email correspondence between the claimant and HR about the claimant’s holiday entitlement and how much holiday she could take prior to commencing her maternity leave. It is clear from that correspondence that the claimant was very keen to be able to stop working by mid-September 2022 prior to commencing her maternity leave, whether by taking holiday or otherwise. The majority of the correspondence between the claimant and HR in the period from 7 July 2022 up to the point when she eventually stopped working prior to taking maternity leave (on 23 September 2022) concerned this issue. It is not an issue of dispute before this tribunal and the claimant indeed has confirmed that she does not dispute the respondent’s calculation of the amount of holiday which she had outstanding and was entitled to take during this period. However, in her email correspondence with HR, the claimant was very persistent and determined in her assertions about what she maintained she was entitled to in relation to holiday leave.[56]In an email of 15 July 2022 to Ms Hayes, the claimant stated that “I’m risk pregnant that’s why I would like take my holidays from middle of September when I’m 8,5 months pregnant…. My job is sitting the guests, running up and down plus dealing with drunk guests.”. That statement is entirely within the - 10 - context of the claimant’s arguments about holiday entitlement and her assertion about when she wanted to stop working prior to her maternity leave (in other words, in the middle of September 2022); it is not an assertion that at that point (in July 2022) she considered that the nature of her job was putting her at risk.[57]She goes on in that email, and in the same context, to quote a particular section of the respondent’s handbook, which we were referred to at this hearing: “We will take account of your condition and the work you normally do. We try and make adjustments if we believe you cannot carry out your usual work. Alternately we look for other suitable work for you to do. If we cannot find suitable work for you to undertake, we will suspend you from work on full pay. We do this until the risks to you/your baby’s health have passed or suitable alternative work becomes available.”[58]Again, taken in its proper context, the claimant’s quoting of this part of the handbook is about what the respondent should do to ensure that she could stop working around mid-September 2022; it is not a suggestion that she should be suspended on full pay at that point in July 2022.[59]Ms Hayes responded to the claimant about her ongoing demands regarding holiday leave. However, notwithstanding this context, Ms Hayes also acknowledged in her reply that issues she may be facing during her pregnancy needed to be discussed with Ingrida to see if any adjustments to her role needed to be made. July 2022 risk assessment[60]Consequently, a further risk assessment took place on 22 July 2022. It was again conducted at the Bloomsbury venue by Ingrida with the claimant and signed off by both Ingrida and the claimant.[61]No recommendations for adjustments are set out in the text of this risk assessment. The sole remark written by Ingrida on the assessment is “Zsofia said that on few occasions customers accidentally push her while moving and it’s hard to move when is crowded”. However, no adjustments in relation to this are set out.[62]A great deal of emphasis has been placed by the claimant on this risk assessment. An analysis of the yes/no tick-box answers to the many questions filled in on the risk assessment form suggests that the claimant’s job cannot be modified in order to eliminate risk; that she cannot be redeployed to another department or task; and that the manager does consider that there is a risk to the health and safety of the employee. It is this risk assessment which the claimant relies on at this tribunal in her submission that the respondent should, therefore, in accordance with the handbook, have suspended her on full pay. It would follow from that that she should have been suspended at that point.[63]Ms Hayes was a relatively junior employee who was new to the job. We accept that, in an ideal world, she should on receiving this risk assessment have contacted Ingrida to check that Ingrida genuinely believed what the form - 11 - appeared to show, namely that there was a health and safety risk to the claimant. However, she did not do so.[64]However, we also accept the evidence of both Ms Hayes and Ms Iggulden that it is likely that Ingrida filled this form in in error. That is because, if Ingrida genuinely thought there was a risk to the claimant carrying on working, she would almost certainly have contacted HR herself, both because of the health and safety implications for the claimant and because of the operational implications for her as manager of the claimant having to stop work at that point; however, she did not contact HR at all. Furthermore, for something so serious, we would expect there to have been something more specific written by Ingrida in the risk assessment form itself stating in terms that the claimant could not carry on working; however, there isn’t anything of this nature. In addition, the third risk assessment, which took place only a month later, did not identify any such health and safety risk; if there had been such a risk, it is unlikely that it would have been alleviated a month later in the claimant’s pregnancy. Furthermore, if Ingrida and the claimant had agreed that she could not carry on working and therefore needed to be suspended on full pay, we have no doubt that, if the claimant had not been suspended shortly after the risk assessment, she would herself have informed HR; however she did not. In this context, we note that the claimant is not someone who shrinks from raising an issue and pursuing that issue (as she did with the holiday leave issue); we therefore have no doubt that, if she had believed in July 2022 that she should have been suspended at that point and that this was what had indeed been agreed between her and Ingrida, she would have made that point very clear in correspondence to HR at the time; however she did not.[65]We therefore accept that the form was filled in incorrectly by Ingrida and that Ingrida did not in fact consider that the job could not be modified in order to eliminate the risk; and did not in fact consider there to be a risk to the health and safety of the claimant. Claimant’s further email correspondence with HR[66]The emails between Ms Hayes and the claimant continued beyond this risk assessment. The emphasis again was more about the claimant’s holiday leave rather than workplace conditions. In early August 2022, the matter was escalated to Ms Iggulden who took over the correspondence with the claimant.[67]Whilst there continued to be a lot more emphasis on the holiday leave issue, the claimant did on occasion raise other matters with Ms Iggulden. On 19 August 2022, for example, she emphasised that the fact that the toilets in the venue were downstairs from where she worked at reception caused her problems.[68]Ms Iggulden sought to have a phone call with the claimant to understand the issues more, and alternatively she suggested meeting the claimant at the venue to discuss them. However, the claimant repeatedly refused to speak to Ms Iggulden and asked to continue any correspondence by email. The claimant has said at this hearing that this was because English was not her first language and - 12 - she found it easier to deal by email. However, it was nevertheless unhelpful because it would have been easier for Ms Iggulden to understand her problems had they been able to have a conversation. In any event, Ms Iggulden was, quite rightly as an HR professional, attempting to understand what the problems were so that she could put in place suitable solutions to them.[69]At this point, the claimant stated in an email of 25 August 2022 that she needed to contact someone who could help her like ACAS or a solicitor and she did indeed in due course speak to ACAS in September 2022.[70]In her 25 August 2022 email, the claimant referenced the issue with the toilets and also made complaints about guests at the venue who were drunk pushing her and making inappropriate comments in relation to her pregnancy. At this point, she stated that the respondent needed to provide her with a safe job or suspend her with full pay for a couple of weeks. 30 August 2022 risk assessment[71]Following this email, a further risk assessment at the venue was arranged which took place on 30 August 2022. A large variety of adjustments were agreed between Ingrida and the claimant and both parties signed to agree them. However, it is clear from the risk assessment form that Ingrida did not consider that it was unsafe for the claimant to continue working (provided that the adjustments agreed were made). Responsibility for implementing those adjustments was with the manager at the local level, in other words with Ingrida, about whom the claimant makes no complaint.[72]On 31 August 2022, Ms Iggulden emailed the claimant, confirming her understanding that the claimant had met with Ingrida, completed a further risk assessment and agreed some further reasonable adjustments, and asking her to confirm that she was now comfortable with all of the adjustments. The claimant did not reply to this email. Understandably, Ms Iggulden assumed therefore that the claimant was comfortable with the adjustments.[73]The next email from the claimant, on 6 September 2022, was about her holiday entitlement again (not workplace safety), and there were then a succession of further emails on this issue between the claimant and Ms Iggulden in early September 2022.[74]Only in an email on 13 September 2022 did the claimant, as well as including further issues about holiday entitlement, make further reference to safety. It was in this email that she stated “why I wasn’t transferred to reservations team?”. And she referenced other issues including the issue of the stairs and going to the toilet.[75]On the same day, Ms Iggulden replied and explained that she would be happy to agree for the claimant to use the DDA lift when she needed to access the bathroom. The claimant has said at this tribunal that she found this humiliating and that it did not help practically because it still took several minutes to use the lift to go downstairs. However, there is no evidence that she told HR, - 13 - with whom all of her correspondence was by email, about this at the time and we accordingly find that she did not. The reservations team[76]The claimant has asserted at this tribunal that she should have been transferred to the respondent’s reservations team and that she should have been transferred to the reservations team from the point at which she informed the respondent that she was pregnant. She also asserted (incorrectly) that this would further be of assistance to her because the reservations team worked from home.[77]The respondent’s reservations team is based, not at the venue where the claimant worked in Bloomsbury, but at a separate location in Islington. Contrary to the claimant’s assertion, the reservations team are not permitted to work at home all of the time, but are permitted to work at home on only one day per week, with the rest of their working time spent in the office.[78]There is no dispute that the claimant was not at any stage transferred to the reservations team.[79]We reiterate that the claimant has no complaint about the behaviour of her manager, Ingrida, or any of the management team at her venue; her complaint is only about the actions of HR. The claimant maintained at this tribunal that she had told Ingrida that she ought to transfer to the reservations team and was told by Ingrida that that was not possible.[80]However, whether she told Ingrida or not (and we make no finding about that), we accept the evidence of Ms Hayes and Ms Iggulden that no request for a transfer of the claimant to the reservations team was made to them, either by the claimant herself or by Ingrida or anyone else, prior to 13 September 2022. On 13 September 2022, the claimant herself made a reference to the reservations team in the email to Ms Iggulden referenced above.[81]The claimant’s last day of work prior to holiday/maternity leave was 23 September 2022. There was therefore less than two weeks between Ms Iggulden being notified of any suggestion that the claimant wanted to transfer to the reservations team and her ceasing work. As Ms Iggulden explained in evidence, which we accept, it was not clear whether there was a vacancy in the reservations team; that team did different work to the work which the claimant did in her existing job; and there would need to be a period of two weeks training for anyone starting in the reservations team, by the end of which the claimant would have ceased working. We accept that it would not, therefore, have been practicable for the respondent to transfer the claimant to the reservations team, even if there had been a vacancy there.[82]The reasons for not transferring the claimant to the reservations team were therefore as follows: prior to 13 September 2022, because the respondent’s HR Department was not even aware that this was something which the claimant - 14 - might want to do; and after 13 September 2022, for the reasons set out in the paragraph above. Providing a “safe job” during the claimant’s pregnancy[83]Taking into account the contemporaneous correspondence and what HR were told by the claimant, we do not consider that the respondent failed to provide a safe job during the claimant’s pregnancy. Risk assessments were done, particularly when the claimant highlighted anything that made HR think that there may be a risk, and adjustments were agreed. The claimant has suggested at this tribunal, in somewhat vague terms, that certain adjustments were not implemented. Responsibility for implementation of agreed adjustments lay with the claimant’s manager at the local venue where those adjustments were being implemented, in other words with Ingrida, about whom the claimant makes no complaint. To the extent that any agreed adjustments were not implemented (and we make no finding that to that effect), HR were not made aware that those adjustments were not implemented. When further items arose and HR were made aware, Ms Iggulden made a further adjustment, for example in relation to the DDA lift. The claimant’s maternity leave[84]As noted, the claimant’s last working day was 23 September 2022. She took holiday after that and then commenced her maternity leave on 10 October 2022.[85]She did not contact HR again until August 2023, when she raised a query about how much outstanding holiday she had. There was then further correspondence between her and Ms Hayes in HR in August and September 2023 about the amount of the claimant’s outstanding holiday leave. There is no dispute at this tribunal about this. Pay for holiday in October/November 2023[86]The claimant emailed Ms Hayes at 12:06 PM on 31 October 2023. The email states: “I hope this finds you well. Everything is fine with the holiday, unfortunately my payment is wrong this time. As you said the minimum wage is £11.90/h plus tronc. I received only £9.85/h plus tronc. That’s mean £90 is missing, can you have a look and fix it ASAP please. I know you can do a separate payment as I had before so please don’t add to my next payment. Thank you”[87]The issue raised is, therefore, not about the amount of the claimant’s holiday leave entitlement. It is a new issue about what the claimant alleges is an incorrect pay rate applied to holiday pay which relates to the period from midOctober 2023 onwards.[88]The chronology and interaction of this email and the claimant’s resignation email of the same date are important and we will return to them in due course. However, we first address the issue of whether or not the holiday pay calculation for October/November 2023 was correct or not. - 15 -[89]Ms Hayes replied to the claimant’s email at 16:12 PM on 31 October 2023. She stated that she had double checked the claimant’s holiday pay with the payroll team and that it was correct.[90]The claimant disputed this in an email of 1 November 2023 in response to Ms Hayes.[91]Ms Hayes replied in an email of 3 November 2023 maintaining the respondent’s position. In that email, she set out certain components of the calculation. As part of that narrative, she stated “Your rate differs across the period (either £8.91 or £9.65), so the system will calculate it based on the split pay rate”. Whilst this email is not clear, that would seem to indicate that historic pay rates were used rather than the rate of £11.90.[92]The claimant alleges at this tribunal that she was paid incorrectly in relation to holiday which she took from the end of her maternity leave in October 2023 until the termination of her employment on 19 November 2023. The allegation in the original list of issues was that there was a £2 per hour deficit because the respondent applied historic hourly rates to the calculation of holiday rather than the £11.90 hourly rate which (it is agreed) was the correct rate to apply to it; this broadened slightly by agreement at the start of this hearing to include an allegation simply that the respondent failed to pay her for this holiday pay correctly. There is no dispute that the number of days holiday for which she was paid was correct.[93]Although it does have an employee responsible for payroll, the respondent essentially uses an external payroll provider called Fourth, whose system carries out the calculations on pay and holiday pay. Those holiday pay calculations, particularly for an employee with variable hours like the claimant, are complex.[94]Ms Hayes, who conducted email correspondence with the claimant in late October and early November 2023 about the matter, relied on information provided by Fourth/her internal payroll employee. Ms Hayes is not a payroll specialist.[95]As noted, the respondent accepts that the correct hourly rate to be used for calculation of this period of holiday was £11.90.[96]To be clear, having looked at the evidence available to us, we cannot say with any certainty whether or not the respondent calculated this holiday pay correctly or not. In one sense, that is not surprising: whilst the respondent still maintains that it paid the holiday pay correctly, the concession regarding the unlawful deduction from wages complaint (which was in relation to this allegedly unpaid holiday pay) came about because the respondent, even at this hearing, was not in a position to show precisely how it was calculated. Notwithstanding the complexity of the calculation in relation to an employee with variable hours, it is a point of concern that the respondent is not able to do this, even at this hearing. Providing information through which an employee can understand what - 16 - they are paid and how it has been calculated is of great importance. The respondent should have been able to do this at the time the claimant originally raised a query. That is a point which the respondent will no doubt want to reflect upon going forwards.[97]However, we nonetheless need to make a finding of fact on the balance of probabilities. The claimant’s original allegation was that the wrong hourly rate was used and that that was why she was underpaid. The respondent produced a table (at pages 289-290 of the bundle) which set out a calculation of what was actually paid and used the rate of £11.90. However, the claimant asserts that, in that calculation, the correct rate is used, but the average hours used as part of the calculation are consequently lower than the average hours which should have been used; and that the calculation is therefore still wrong.[98]We note the email from Ms Hayes to the claimant of 3 November 2023 (on page 99 of the bundle). As noted, Ms Hayes, although not a payroll expert herself, got her information from the internal payroll employee and/or Fourth. In that email, Ms Hayes states that “Your rate differs across the period (either £8.91 or £9.65), so the system will calculate it based on the split pay rate”. This implies that historic hourly rates (rather than the £11.90 rate) were used to calculate this holiday pay.[99]Again, while stressing that, from the information available, we cannot be absolutely clear what the position was, we find that in the light of this email, on the balance of probabilities, the claimant’s holiday pay was calculated using the historic hourly rates. It was therefore incorrect, resulting in the holiday pay paid to the claimant being roughly £90 per week less than what should have been paid. The claimant’s resignation[100]As noted, the claimant’s email raising the holiday pay query was sent at 12:06 PM on 31 October 2023. Ms Hayes’ response to that email was at 16:12 PM that day. Between these two emails, the claimant sent a further email, at 13:00 PM on 31 October 2023, to Ms Hayes. The text of that email is as follows: “I hope this email finds you well. After my holiday I’m not returning back to work. I don’t feel safe working with people who do not care about me. I worked with an amazing management team and colleagues, they supported me during my risk pregnancy last year. I’m super grateful for that. The HR team treated me unfairly and ignored my problems. I mentioned how the stairs were difficult to go up and down (as the toilet, staff room, kitchen is downstairs), and I received verbal and mental harassment from drunk customers but HR never responded back to this problems. I tried to deal with HR for almost 3 months and that was so stressful. I had to change my maternity leave date 3 times as I didn’t feel safe to work. HR had plenty of time to provide a safe job for me as it is in the handbook and they should support us not make our lives more complicated and stressful. Thank you for everything Bloomsbury team members and I cannot wish for better colleagues. - 17 - Please see attached my notice.”[101]Attached to this email (and therefore sent at the same time as the email), was a further letter which stated as follows: “Dear Ingrida, Thank you for this opportunity you have given me to learn. My experience with Flight Club has been very rewarding. I appreciate having the opportunity to work with this amazing team. I would like to further my career somewhere else. Please accept this letter as my two weeks notice. My last day in Flight Club Bloomsbury will be on 19th November 2023. Date 31.10.2023”[102]The claimant maintains that the attached letter (addressed to Ingrida) was simply a standard resignation letter which she got from the internet. However, even if she started with something from the internet, we do not accept that this was a pro forma letter only as it is clearly tailored to her personal circumstances. Furthermore, what is evident from both the email and the letter is how happy the claimant says she was with Ingrida and the team at the Bloomsbury venue (which is consistent with her position at this tribunal that she has no complaint about any of them); the criticism is reserved for HR.[103]We leave any findings of fact as to the reason for the claimant’s resignation to our conclusions below. The Law Constructive unfair dismissal
The Law
[104]In order to successfully make a complaint of unfair dismissal an employee must first prove on the balance of probabilities that he or she was dismissed by the employer. Section 95(1)(c) of the Employment Rights Act 1996 (“ERA”) states that: “there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct.” This form of dismissal is commonly referred to as constructive dismissal. In the leading case on the subject, Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, the Court of Appeal ruled that the employer’s conduct which gives rise to a constructive dismissal must involve a repudiatory breach of contract. In order to claim constructive dismissal the employee must establish on the balance of probabilities that:(i) There was a fundamental breach of contract on the part of the employer; - 18 -(ii) The employer’s breach caused the employee to resign;(iii) The employee did not delay too long before resigning, thereby affirming the contract and losing the right to claim constructive dismissal.[105]Individual actions by an employer that do not in themselves constitute fundamental breaches of any contractual term may have the cumulative effect of, for example, undermining the trust and confidence inherent in every contract of employment. A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a “last straw” incident, even though the “last straw” by itself does not amount to a breach of contract or even unreasonable conduct (although it would be rare for objectively reasonable conduct to constitute a “last straw”). It suffices if it contributes to the employer’s earlier breaches (if any) and/or cumulatively undermines trust and confidence.[106]An employer must not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee (Malik v Bank of Credit and Commerce International SA [1997] ICR 606.[107]As noted above, it is possible for an employee to waive (or acquiesce to) an employer’s breach of contract by their actions. In those circumstances, an employee will affirm the contract and will be unable to rely upon any breach which may have been perpetrated by the employer in seeking to argue that they have been constructively dismissed. Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation (see dicta in WE Cox Toner (International) Ltd v Crook [1981] ICR 823). Equally, affirmation can be implied by the innocent party calling on the guilty party for further performance of the contract by, for example, claiming sick pay. Pregnancy/maternity discrimination[108]Under section 18(2) of the Equality Act 2010 (“EQA”), a person discriminates against a woman if, in the protected period in relation to a pregnancy of hers, that person treats her unfavourably because of her pregnancy or because of illness suffered by her as a result of it.[109]The protected period begins when the pregnancy begins and ends, if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy and, if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.[110]Under section 18(4) of the EQA, it is also prohibited to treat a woman unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave. - 19 -[111]Unlike other forms of direct discrimination, there is no requirement for a comparator in relation to pregnancy/maternity discrimination.[112]Under section 39(2) EQA, an employer must not discriminate against an employee of his by dismissing that employee or by subjecting that employee to any other detriment. Detriment can be anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. However, an unjustified sense of grievance alone would not be enough to establish detriment.[113]Section 39 EQA requires that the action is done by A (the employer or someone for whom the employer is legally responsible such as an employee or agent of A - see sections 109 and 110 EQA). It is not possible to bring a pregnancy/maternity discrimination complaint in the employment tribunal for the actions of a third party. Pregnancy/maternity harassment[114]Under section 26(1) EQA, a person(a) (A) harasses another person(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[115]Pregnancy/maternity is a protected characteristic for the purposes of harassment.[116]In deciding whether conduct has the effect referred to above (but not the purpose referred to above), each of the following must be taken into account: the perception of B; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect.[117]In Richmond Pharmacology v Dhaliwal, Mr Justice Underhill, then President of the EAT, said: ‘Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended’. The EAT affirmed this view in Betsi Cadwaladr University Health Board v Hughes and ors EAT 0179/13. The EAT observed that ‘the word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence’. Indeed the CA in HM Land Registry v Grant further stated in this context that ‘tribunals must not cheapen the significance of these words since they are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment’.[118]Section 40(1) EQA provides that an employer(a) (A) must not, in relation to employment by A, harass a person(b) (B) who is an employee of A. - 20 -[119]Sections 26/40 require that the action is done by A (the employer or someone for whom the employer is legally responsible such as an employee or agent of A – see sections 109 and 110 EQA). It is not possible to bring a complaint in the employment tribunal for the actions of a third party. This was made clear in Unite the Union v Nailard 2019 ICR 28, CA. An employer will not be liable under section 26 EQA for failing to protect an employee against third party harassment, unless the employer’s failure to safeguard the employee itself satisfies the statutory definition. Burden of proof[120]In respect of discrimination and harassment, the burden of proof rests initially on the employee to prove on the balance of probabilities facts from which the tribunal could decide, in the absence of any other explanation, that the employer did contravene one of these provisions. To do so the employee must show more than merely that she was subjected to detrimental treatment by the employer and that the relevant protected characteristic applied; there must be “something more” to indicate a connection between the two (Madarassy v Nomura International plc [2007] IRLR 246). If the employee can establish this, the burden of proof shifts to the employer to show that on the balance of probabilities it did not contravene that provision. If the employer is unable to do so, we must hold that the provision was contravened and discrimination or harassment did occur.[121]However, if the tribunal can make clear positive findings as to an employer’s motivation, then it need not revert to the burden of proof (Martin v Devonshires Solicitors [2001] ICR 352 (EAT)). Time limits - EQA[122]The EQA provides that a complaint under the EQA may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the employment tribunal thinks just and equitable. The primary time limit is adjusted in relation to periods of time spent in ACAS early conciliation.[123]The EQA further provides that conduct extending over a period is to be treated as done at the end of the period and that failure to do something is to be treated as occurring when the person in question decided on it.[124]In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 CA, the Court of Appeal stated that, in determining whether there was “an act extending over a period”, as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as the indicia of “an act extending over a - 21 - period”. The burden is on the claimant to prove, either by direct evidence or by inference from primary facts, that alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.[125]As to whether it is just and equitable to extend time, it is for the claimant to persuade the tribunal that it is just and equitable to do so and the exercise of the discretion is thus the exception rather than the rule. There is no presumption that time will be extended, see Robertson v Bexley Community Centre [2003] IRLR 434 CA. This is the exercise of a wide, general discretion and may include the date from which a claimant first became aware of the right to present a complaint. Conclusions on the issues[126]We make the following conclusions, applying the law to the facts found in relation to the agreed issues. Jurisdiction (issues2.6.1 and2.6.2 )[127]We begin by addressing the jurisdictional points in relation to the complaints of pregnancy/maternity discrimination and harassment at issues 2.6.1 and 2.6.2. It is not in dispute that the actions which the claimant complains of in these two allegations were actions allegedly undertaken by guests/customers at the respondent’s venue and that they were not done by employees/agents of the respondent.[128]The EQA is clear that, for the tribunal to have jurisdiction in a pregnancy discrimination complaint in the employment context, the discrimination must be perpetrated by the respondent or someone for whom the respondent is legally responsible, such as an employee or agent of the respondent. Similarly, in a case of harassment, the action must be done by the respondent or someone for whom the respondent was legally responsible, such as an employee or agent. It is not possible to bring a complaint in the employment tribunal in relation to the actions of a third party, such as a customer/guest.[129]Accordingly, the tribunal does not have jurisdiction to hear these complaints and they are struck out. Transfer to the reservations team (issue 2.6.3 - pregnancy/maternity discrimination/harassment)[130]As we have found, the reasons for not transferring the claimant to the reservations team were as follows: prior to the claimant’s email of 13 September 2022 requesting such a transfer, because the respondent’s HR Department was not even aware that this was something which the claimant might want to do; and after 13 September 2022, because it would not, for the reasons set out in our findings of fact above (to which we cross-refer in full), have been practicable to transfer the claimant to the reservations team, even if there had been a vacancy there. - 22 -[131]The reason was not because of the claimant’s pregnancy. This complaint of pregnancy discrimination therefore fails.[132]In terms of the pregnancy harassment complaint, we accept that the failure to transfer the claimant to the reservations team amounted to unwanted conduct from the claimant’s perspective. Furthermore, the request was made in the context of the claimant’s pregnancy and would not have been made without that context; therefore, whilst the failure to transfer the claimant to the reservations team was not because of her pregnancy, it was related to it.[133]However, the conduct neither had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. It was a wholly reasonable decision not to transfer the claimant to the reservations team. Furthermore, we remind ourselves that the language used in the statute is not something minor or trivial and that, as well as the perception of the claimant, we are also bound to take into account the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Given the lateness of the request and the very good practical reasons for not acceding to it, it cannot be reasonable for the failure to transfer the claimant to the reservations team to have the effect of violating her dignity or creating an intimidating, hostile etc environment for her.[134]This pregnancy/maternity harassment complaint therefore also fails. Constructive unfair dismissal Failed to “provide a safe job under my pregnancy”[135]As we have found, the respondent did not fail to provide a safe job during the claimant’s pregnancy. Paid £2 less per hour than she should have been paid and the respondent failed to pay her for her holiday pay correctly[136]As we have found, the claimant was paid incorrectly in relation to her holiday pay for the period from mid-October 2023 onwards, resulting in the holiday pay paid to the claimant being roughly £90 per week less than what should have been paid. Did this amount to a breach of the implied term of trust and confidence?[137]We do not doubt that the discrepancy was a mistake and that there was no intention by the respondent to pay the claimant less than her entitlement. It thought at the time (and indeed still does) that it paid the claimant correctly.[138]The claimant first queried the calculation of this holiday pay in her email to Ms Hayes on 31 October 2023 at 12:06 PM. In it, she pointed out that she thought that the wrong hourly rate had been used and that around £90 a week was missing and asked if it could be fixed. At that stage, her email was merely a - 23 - query and a request to adjust the payment. The respondent was not until that point even aware of any potential discrepancy. We do not, therefore, consider that there was any breach of the implied term of trust and confidence at that point.[139]Ms Hayes replied to the claimant later that day at 16:12 on 31 October 2023. She stated that she had double checked with her payroll team and that the holiday calculation was correct. In the light of our finding that the claimant was paid incorrectly, we do consider that there was a breach of the implied term of trust and confidence at this point. Pay is a key part of the employment relationship and, even if the amounts in question were relatively small, they were certainly not insignificant from the claimant’s point of view (over £500 in total). There was no reasonable and proper cause for a payroll error. Furthermore, given the importance of pay, we do consider that, whilst the error was not calculated to destroy or seriously damage the relationship of trust and confidence, it was likely to seriously damage the relationship of trust and confidence between the claimant and the respondent.[140]There was therefore a breach of the implied duty of trust and confidence, due to the incorrect payments of holiday pay and for that reason alone. Did the claimant resign in response to a breach of contract?[141]To recap, we did not find that there was a breach of contract through a failure to provide the claimant with a safe working environment while she was pregnant; we did find there was a breach of contract (implied term of trust and confidence) as a result of the failure to pay the claimant her holiday pay correctly in October/November 2023.[142]However, we found that that breach of contract took place at the sending of Ms Hayes’s email of 16:12 PM on 31 October 2023. The claimant sent her resignation email to Ms Hayes before then, at 13:00 PM on 31 October 2023. Of the two resignation letters of that date, the second one (on page 97 of the bundle) was sent as an attachment to the first one (on page 96 of the bundle); they were, therefore, sent at the same time. It follows, that, as the claimant’s resignation predated the breach of contract in relation to holiday pay, she could not have resigned because of that breach of contract. As the claimant did not resign in response to a breach of contract, the constructive dismissal complaint fails.[143]In terms of the reason for the claimant’s resignation more broadly, the claimant has asserted at this tribunal that the reason was in part because of the respondent not providing a safe job for her during her pregnancy in 2022 and in part the October 2023 holiday pay issue.[144]We do not, however, accept that the October 2023 holiday pay issue was any part of the reason for her resigning. She raised that query in an email sent less than an hour before she sent her resignation email. That query was therefore in her mind shortly before she sent her resignation email. However, strikingly, neither the resignation email nor the separate resignation letter - 24 - attached to that email reference it at all. Rather, the resignation email goes into considerable detail about the claimant’s allegations about HR’s alleged failings in relation to the working environment while she was pregnant (whilst at the same time effusively complimenting her management team at the venue where she worked); and the separate resignation letter attached to it states that she found her experience at the respondent very rewarding and that she would “like to further my career somewhere else”.[145]We reiterate that the claimant’s evidence that the word “problems” contained in the resignation email was a reference to the holiday pay issue is implausible and we do not accept it.[146]If the holiday pay issue had been part of her reason for resigning, she would have mentioned it. However, she did not. For this reason, and because of the concerns we have about the reliability of the claimant’s evidence more generally, we find that it did not play any part in her decision to resign.[147]In terms of the real reason for her resignation, we find on the balance of probabilities that it was a mixture of what she saw as the failures of HR in relation to the period of her pregnancy and, as the second resignation letter states, a desire to move on and further her career elsewhere. We reiterate that we did not accept the claimant’s evidence that the second resignation letter was simply a template from the internet and that, by implication, the reference to furthering her career somewhere else was not something that she meant. There are too many elements to this relatively short letter which are personalised to the claimant’s situation. We therefore accept that she did state of her own volition that she would like to further her career somewhere else and that she meant it.[148]Therefore, as none of the reasons why the claimant resigned were matters which were or contributed to a breach of the implied term of trust and confidence, the constructive unfair dismissal complaint fails for this reason too. Affirmation[149]For completeness’ sake, we find that, even if the claimant’s alleged treatment by HR during her pregnancy had amounted to a breach of trust and confidence (which we found was not the case), the claimant had affirmed that breach by carrying on working.[150]The conduct in question ended in September 2022. The claimant did not resign until 31 October 2023, over a year later. During this period, there was no indication that she would resign and she carried on in employment and was in receipt of enhanced maternity pay and holiday pay. It may be understandable that she would not want to resign before the end of her maternity leave and before she had received all that maternity and holiday pay. However, the consequence of her remaining employed for such a long period and receiving remuneration from the respondent, without any indication that she would be resigning, is enough for us to conclude that, had there been a breach, she had affirmed that breach. - 25 -[151]The constructive unfair dismissal complaint would, therefore, have failed for that reason too. Allegation 2.6.4 (dismissal)[152]We turn to allegation 2.6.4, which is the pregnancy/maternity discrimination allegation that the claimant was dismissed and that the dismissal was because of pregnancy/maternity.[153]As the claimant was not constructively dismissed, there was no dismissal. As there was no dismissal, the factual basis of this allegation is not made out and it fails. Jurisdiction - time limits[154]Finally, we turn to the issue of time limits. It is accepted that both the unfair constructive dismissal complaint and the dismissal related discrimination complaint at 2.6.4 were presented to the tribunal within the three month time limit.[155]However, the other three allegations (of discrimination/harassment) were all presented out of time.[156]All of them relate to the period prior to the claimant stopping work in September 2022. The claimant commenced ACAS early conciliation on 29 November 2023; it concluded on 10 January 2024; and the claim was presented on 10 February 2024. It follows that, taking into account the time limit and extensions because of ACAS early conciliation, any complaint which relates to a period before 30 August 2023 is prima facie out of time. All of these complaints are therefore prima facie about a year out of time.[157]There is no successful in time complaint to which these earlier complaints could be connected as part of conduct extending over a period, such that they would be deemed to be in time. Therefore, these complaints were all presented out of time.[158]We turn then to the issue of whether it would be just and equitable to extend time. We have seen no good reason in any of the evidence before us as to why it would be just and equitable to extend time. Furthermore, the claimant was aware of her ability to bring claims back in September 2022 and indeed spoke to ACAS in September 2022. That is a further reason as to why, if she had wanted to bring claims, she could have brought them back in September 2022. However she did not.[159]We do not, therefore, consider that it is just and equitable to extend the time limit. The tribunal does not, therefore, have jurisdiction to hear these complaints.[160]The complaint at 2.6.3 is therefore struck out for that reason. - 26 -[161]The complaints at2.6.1 and2.6.2 would also have been struck out for that reason, had they not already been struck out because the tribunal did not have jurisdiction in relation to them as they were complaints about the actions of guests/customers rather than employees/agents of the respondent. Written reasons[162]After the judge had delivered the reasons for the tribunal’s decision orally, he explained that he would, in a moment, ask the parties whether they wanted the written reasons for the decision and that they would be able to request them either now at the hearing or within 14 days of the judgment being[163]Before doing so, the judge explained, for the claimant’s benefit, two things. First, he said that, if a party wished to appeal the tribunal’s decision, that party would need the written reasons in order to do so, although he stated that an appeal could only be founded if there was an error of law by the tribunal or if its decision on the facts was perverse; there were no grounds for appeal if a party simply disagreed with the factual findings that the tribunal had made. Secondly, he explained that, if written reasons were produced, they would be published online on the tribunal’s website and that the tribunal had no discretion as to whether or not to do this. He added that the reasons were searchable by name and that the tribunal was aware that potential future employers might carry out such a search. The judge made these remarks because he was concerned about whether it was in the claimant’s own best interests for the written reasons to be produced and consequently published online.[164]The judge then asked the parties whether they wanted the written reasons. Both parties said they would like to think about it and made no request at that point.[165]The judgment was subsequently sent to the parties on 7 February 2025. The claimant then requested written reasons on 20 February 2025 and these written reasons have accordingly been provided.
The Law
[1]By email presented to the tribunal on 9 April 2025, the claimant applied for reconsideration of the judgment sent to the parties on 7 February 2025.[2]Under Rule 70(2) of the Employment Tribunal Rules of Procedure 2024 (“the Rules”), such an application is to be refused, without the need for a hearing, if an Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked.[3]Rule 69 of the Rules provides that, except where it is made during the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the tribunal within 14 days of the later of the date on which the written record of the judgment sought to be reconsidered was sent to the parties or the date that the written reasons were sent, if these were sent separately. Substance of the application[4]The claimant’s application for reconsideration is as follows: “I am writing to request a reconsideration of the judgment in my case. The reason for my request is the recent availability of new and relevant evidence that was not accessible to me at the time of the final hearing. This evidence demonstrates that certain witnesses for the Respondent were not reliable. I was only able to obtain this information after the hearing, following further discussions. I respectfully submit that this evidence could not have been reasonably acquired earlier and that it may have had a significant impact on the outcome of the case. For these reasons, I ask the Tribunal to consider allowing a reconsideration of the judgment. Could you please advise me on the appropriate procedure for submitting this new evidence to the Tribunal?[5]The application does not provide the alleged new evidence or even summarise what that evidence is; it does not state why it was not accessible at the time of the hearing; nor does it even state in what respect the judgment (which is multi-faceted, dealt with a variety of allegations, and the reasons for which run to some 27 pages), should be varied or revoked. In the absence of any details, it is impossible to know in what respect the claimant seeks reconsideration of the judgment or, even if one knew, whether it would be in the interests of justice to reconsider it.[6]On the basis of this application, there is therefore no reasonable prospect of the original decision being varied or revoked.[7]The application for reconsideration is therefore refused.[8]I would add that, even on the terms of the application, the claimant simply says that the evidence she says she has, which she says relates to reliability of witnesses, “may” have had a significant impact on the outcome of the case. I appreciate that none of the details have been provided, but that phraseology in itself appears indicative of a generalised attempt to relitigate the whole case; that is not the purpose of reconsideration. Time limits[9]Furthermore, the judgment was sent to the parties on 7 February 2025. Written reasons were subsequently requested by the claimant. These were then sent to the parties on 5 March 2025. The application for reconsideration was made on 9 April 2025. That is considerably after the 14 day period provided by Rule 69, which runs from 5 March 2025 (the date the written reasons were sent to the parties).[10]No explanation has been given as to why the application for reconsideration could not have been made within the 14 day period. Indeed, in an email of 18 March 2025 to the tribunal, the claimant stated that she had “obtained new evidence that I wish to present to the tribunal”. That email was sent to the tribunal within the 14 day period for making an application for reconsideration. It appears that the claimant therefore already had the information which she now asserts is the basis for her application in her possession within that period, but has given no explanation as to why she did not make an application for reconsideration within that period.[11]The covering letter sent to the parties with the judgment set out clearly the time deadlines for making applications for reconsideration, so the claimant had been made fully aware of these.[12]There is therefore no good reason why the application could not have been made within the 14 day deadline set out in Rule 69.[13]The application for reconsideration is therefore also refused as it was made out of time.