Ms C Ganiza v American Institute for Foreign Study UK Ltd: 2201989/2024 and 2218152/2024

EMPLOYMENT TRIBUNALS

Case No 2201989/2024, 2218152/2024

Between

Ms C GanizaClaimant

American Institute for Foreign Study UK Limited RECORD OF A HEARINGRespondent

Before

Employment Judge Joffe

Ms H Curtain (instructed by counsel) for respondent

Date 22 May 2025

JUDGMENT

[1]The complaint of automatic unfair dismissal for a reason set out in regulation 3 of the Maternity and Parental Leave Regulations 1999 is not well-founded and is dismissed.

[2]The complaints of being subjected to a detriment because of pregnancy / maternity are not well-founded and are dismissed.

[3]The complaints of direct pregnancy / maternity discrimination are not wellfounded and are dismissed.

[4]The complaints of direct race discrimination are not well-founded and are dismissed.

[5]The complaints of harassment related to race are not well-founded and are dismissed.

[6]The complaints of victimisation are not well-founded and are dismissed.

REASONS

[1]The list of issues was discussed and agreed at a case management preliminary hearing in front of Employment Judge Brown on 12 June 2024. That list was as follows: Time Limits / Limitation Issues1.1 Were all of the complaints presented within the time limits set out in s123 of the Equality Act 2010 (EqA)?

1.2 Was there an act and/or conduct extending over a period, and/or a series of similar acts or failures?

1.3 Should time be extended on a “just and equitable” basis? First Claim

[2]Automatic Unfair dismissal2.1 Was the Claimant constructively dismissed by the Respondent? The Claimant relies on all the unfavourable acts in the s18 EqA pregnancy/maternity discrimination or s47C Employment Rights Act 1996 (ERA) detriment complaints below.

2.2 If the Respondent did any, or all, of those unfavourable acts, in doing so, did it breach the duty of trust and confidence between employer and employee? The Respondent denies any of the unfavourable acts, either together or on their own, amount to a breach of the duty of trust and confidence and/or otherwise a repudiatory breach of contract.

2.3 Did the Respondent, without reasonable or proper cause, act in such a way as was calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee? The Respondent denies any of the unfavourable acts, either together or on their own, amount to a breach of the duty of trust and confidence and/or otherwise a repudiatory breach of contract.

2.4 If so, did the Claimant resign in response to the breach? The Respondent asserts that the reason for the Claimant’s resignation was to avoid having to attend the capability meeting.

2.5 Did she affirm the breach?

2.6 If the Respondent constructively dismissed the Claimant, what was the reason or principal reason for dismissal one of the reasons in Regulation 3 Maternity and Parental Leave Regulations 1999, so as to be automatically unfair? The Respondent asserts that its actions were not related to pregnancy, for the reasons as set out in paragraph 3.1 below.

[3]S18 EQA: Pregnancy and Maternity Discrimination (or s13 EQA); Detriment because of her pregnancy/maternity pursuant to s47C ERA and reg.19 of the Maternity & Parental Leave etc Regulations 19993.1 Did the Respondent treat the Claimant as follows: a) On 2 October 2023 the Claimant’s manager, Tracy Dicks, arranging a probation meeting for the Claimant, for the first time; unfavourable treatment. The Respondent denies that it amounts to a detriment and/or to less favourable treatment. it related to concerns about the Claimant’s performance. b) At the probation meeting on 24 October 2023 Ms Dicks failing to address the loss of Claimant’s twin pregnancy, the current state of her pregnancy, or any measures that could be put in place for the Claimant’s health and safety; the purpose of the meeting was solely to discuss performance issues. c) The Respondent extending the Claimant’s probation; the reason was because of performance issues. d) Tracy Dicks accusing the Claimant of not being in the office on 26 October 2023 when it was clear, by emails exchanged that day, that the Claimant was in the office; Tracy Dicks was simply relaying a statement of fact to the Claimant. e) Requiring the Claimant to devise her own training plan for her extended probationary period; and not responding to the Claimant’s request for guidance on devising her own training plan; and not offering the Claimant a follow up or 1-2-1 meeting during the extended probationary period; the Respondent therefore not making any proper attempt to assist the Claimant to complete her extended probationary period successfully; f) During the extended probationary period, not giving the Claimant any training; g) After the Claimant informed the Respondent of her pregnancy, her colleague, Leyla, starting to question the Claimant on trivial matters and changing rooms which the Claimant had already mapped, without informing the Claimant; and attending housing buildings when the Claimant was present, when Leyla had not attended those buildings at those times before, apparently tracking the Claimant’s attendance; and involving herself in programmes when Leyla was not looking after the relevant students; h) After the Claimant informed the Respondent of her pregnancy, her colleague Chris starting to question the Claimant about how she was carrying out tasks - repeatedly questioning the Claimant at meetings and by emails about work the Claimant had done; i) After the Claimant informed the Respondent of her pregnancy, her colleague Debbie starting to confirm that the Claimant should undertake tasks outside the Claimant’s job role and when Debbie knew that the Claimant had not been trained to do the tasks, for example creating and itemising budget spreadsheets, instead of Beatrice creating and itemising these; j) When the Claimant contacted HR on 15 November 2023 to ask for a pregnancy risk assessment, in the circumstances that her pregnancy was high risk and she had lost her twin pregnancy, HR incorrectly advising the Claimant that she needed a MATB1 form to be completed in order to be provided with a pregnancy risk assessment; The Respondent asserts that it was simply informing the Claimant of a necessary legal requirement. k) HR telling the Claimant on 06 December 2023 that her MATB1 invalid and HR continued to fail to carry out a pregnancy risk assessment; The Respondent asserts that it needed to verify the authenticity of the MATB1. l) After the Claimant’s midwife contacted the Respondent’s HR on about 6 – 8 December 2023 to confirm the Claimant’s pregnancy, HR failing to contact the Claimant about her pregnancy and failing to offer her a pregnancy risk assessment; The Respondent asserts that there was insufficient opportunity to conduct any risk assessment before the Claimant was signed off sick. m) On 8 December 2023, rather than offering the Claimant a risk assessment, HR inviting the Claimant to attend a capability meeting because she had asked to take maternity leave, or to work from home, from 28 January 2024; The Respondent admits the invitation to a capability meeting occurred, and that it amounts to unfavourable treatment. the trigger for the meeting was the ongoing performance issues (which pre-dated the Claimant’s notice of intention to commence maternity leave). n) The Respondent withdrawing an offer to conduct the capability meeting remotely, by Teams, but instead requiring the Claimant to attend a face to face meeting; The Respondent denies that it related to the Claimant’s pregnancy asserts that both formats were offered to the Claimant because she worked partly remotely, so in the event that the date of the hearing was a “home” date, it would have to be conducted remotely. As the Claimant was not working from home on the day in question, it was not necessary for the hearing to be conducted remotely. o) The Respondent initially giving the Claimant only about 4 days’ notice of the meeting; The Respondent denies that it related to the Claimant’s pregnancy asserts that this is a standard length of notice for such a hearing. p) As a result, Leyla, Chris, Debbie and HR creating an atmosphere which isolated and pressurised the Claimant; q) By reason of all those matters, the Respondent constructively dismissing the Claimant. The Respondent denies any repudiatory breach of contract, and asserts that the reason for the Claimant’s resignation was to avoid having to attend the capability meeting.

3.2 Is the Claimant’s complaint of direct discrimination because of pregnancy / maternity properly brought under s18 or 13 EqA?

3.3 For the purposes of s18 EqA, if the Respondent acted in any of those ways, did it amount to unfavourable treatment?

3.4 If so, did the unfavourable treatment take place in a protected period and/or was it in implementation of a decision taken in the protected period? The Respondent accepts that all of the acts/omissions identified within paragraph 3.1 above took place within the protected period.

3.5 Was any unfavourable treatment: a) Because of the Claimant’s pregnancy; b) Because she was exercising or seeking to exercise, the right to ordinary or additional maternity leave.

3.6 For the purposes of s47C ERA detriment complaint, did any of the acts amount to a detriment?

3.7 If so, was the detriment done for a reason which related to pregnancy, childbirth or maternity, as defined in reg 19 Maternity and Parental Leave Regulations 1999? Second Claim

[4]Direct discrimination because of Race The Claimant relies on being mixed race. She compares herself with a white comparator.4.1 Did the Respondent treat the Claimant less favourably than it did treat, or would have treated a white comparator by: a) In about August 2023, when there were complaints about mice and insects in the Tufnell House building, the Respondent failed to support the Claimant by failing to give the Claimant information, which the Respondent had, to enable the Claimant to make complaint to a higher manager because of the seriousness of the situation. The Claimant says that the Respondent would have given a hypothetical white comparator this information. b) In about July 2023, when all bedding had gone missing from a room and needed to be replaced within a very short timescale at Hayloft House, the Respondent failed to support the Claimant by not coming to the building to help her make a complaint, reorder items and replace bedding in the rooms. The Claimant says that the Respondent would have given a hypothetical white comparator this support. c) In about September 2023 at Vega House, which was managed by black staff, and where minor complaints had been made about cleaning, including smells in corridors and crumbs in the oven (but not mice and vermin), the Respondent told the Claimant to act more aggressively and take photographs of the matters and then removed the Claimant from managing the complaints altogether, when it had taken little or no action in relation to much more serious complaints where buildings were managed by white people. (This allegation is also relied on as race harassment). d) Ignoring the Claimant when she told the Respondent that she was pregnant – the Claimant contends that the Respondent failed to offer her risk assessments when it would have offered a pregnant white employee risk assessment. The Claimant compares herself with hypothetical white comparator who had asked for risk assessments and their pregnancy was high risk.

4.2 If so, has the Claimant shown facts from which the Tribunal could conclude that the less favourable treatment was because of race?

4.3 If so, has the Respondent shown that race was no part of the reason it acted as it did?

[5]Race Harassment 5.1 In respect of allegation 4.1(c) above (September 2023 at Vega House), was the act: a) unwanted by the Claimant; and b) related to race; and c) done with the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile or degrading atmosphere? The Respondent asserts that it was unaware of the race, ethnicity or colour of those who manage any of the buildings and accordingly was not capable of having instructed the Claimant to behave differently in connection with accommodation depending on the racial identity of its managers.

[6]S27 EqA: Victimisation6.1 Did the claimant do a protected act? The Claimant relies upon commencing ACAS EC conciliation on 1 January 2024. The Respondent accepts that this constitutes a protected act.

6.2 Did the Respondent subject the claimant to any detriments as follows: a) Backdating SMP to 31 January 2024 and reporting to HMRC that the Claimant had been paid maternity pay, when the Respondent had in fact withheld that maternity pay and did not pay it to the Claimant until 7 March 2024 and 11 March 2024. b) After conciliation commenced, the Respondent gave the Claimant 3 days to return equipment (when the Claimant was away) and later 2 days, insinuating that the Claimant would steal that equipment. c) Saying that the Respondent would have to change the locks to their doors if the Claimant did not return their keys; implying, without good reason, that the Claimant would somehow cause damage to the Respondent, when the Respondent knew that the Claimant lived 100 miles from work and was highly unlikely to attend the workplace. The Respondent asserts that the Claimant’s version of events does not reflect the true position, and will rely on the content of the contemporaneous documentation in support of what it contends is the true position. It does not accept that any of its actions constitute subjecting the Claimant to a detriment.

6.3 If so, was any detrimental act done because the Claimant did a protected act and/or because the Respondent believed that the Claimant had done, or might do, a protected act? The Respondent does not accept that any of its actions constitute subjecting the Claimant to a detriment. Furthermore, in any event, the Respondent denies that any of its actions were because of the protected act. The Respondent asserts that it was obliged to pay SMP, and to report this to HMRC, as a legal requirement; and that it is standard practice (and entirely reasonable) for the Respondent to take necessary and appropriate steps to ensure the safe and prompt return of its property from an individual who had ceased to be an employee, after termination. Findings The hearing 2. We were provided with an agreed bundle of 482 pages. 3. We had witness statements and heard evidence from the following witnesses:

a. The claimant on her own behalf; For the respondent:

b. Ms D Long / Smith, former housing manager / senior program manager. I refer to her as Ms Smith;

c. Ms T Dicks, senior vice president, director of programs;

d. Ms K Garnham, vice president, human resources and facilities Findings in the claims 4. The respondent provides study programmes for US students abroad. The programmes take place in London but also in other locations internationally. For the purposes of these proceedings, we were concerned with housing provision for programmes provided in London. 5. Ms Dicks told the Tribunal about the pattern of the housing requirements. The summer programme was busy with groups of twenty staying for ten day periods. In autumn and spring there are smaller numbers staying for longer periods. Those staying for semesters are more likely to be in homestay accommodation. In the summer there will be more residence-based students. The respondent has two residences with which it has year-long contracts but may have to source other residence-based accommodation. 6. In 2022, the claimant was working as a manager with Homes for Students at Lightfoot Hall, accommodation used by the respondent. Ms Smith had come across her in that capacity and thought highly of her.

The hearing

[7]On 2 May 2023, the claimant commenced employment with the respondent as accommodation manager.

[8]The background to the claimant’s appointment was that Ms Smith had been the respondent’s accommodation manager but was looking to either change roles or leave the respondent. She had a young family and was looking for a better work / life balance as the job she was doing included going to residences and dealing with out of hours phone calls. She had been doing two roles, one of which was the accommodation manager role and found herself working approximately 60 hours per week. The respondent decided that management of accommodation needed to be a full time role in itself.

[9]Ms Smith shortlisted candidates and interviewed them; the claimant performed well. Ms Dicks was involved in the second round of interviews and signed off on the claimant’s appointment.

[10]On 28 March 2023, the claimant was sent her offer letter. Her contract stipulated a six month probation period.

[11]The accommodation manager role involved making sure there were sufficient beds for groups of students and planning with programme managers which groups would go where, making sure housing was prepared before students arrived and providing accurate information about student housing options. Ms Smith developed a detailed document about the role which she sent to the claimant on 14 May 2023. She sent it to the claimant for review and asked her to let her know if she had any questions. The claimant did not write back to Ms Smith about this document. That document referred to a responsibility for faculty housing. On 14 May Ms Smith sent the claimant a document about accommodation manager responsibilities which included faculty housing. The claimant told the Tribunal that this responsibility was removed from her later.

[12]We were told that there were essentially two parts to the role: - Sourcing and booking accommodation and making sure programmes fit into available accommodation; - Managing issues relating to the accommodation once booked, this included arranging ‘rooming’(placing students in rooms), welcome packs, kitchen and bedding packs, sorting out cleaning arrangements and dealing with complaints.

[13]We were told that some of these duties would have crossed over with the claimant’s previous role at Lightfoot House, in particular rooming, managing arrivals, ensuring there were bedding and kitchen packs and cleaning plans. The planning accommodation and booking element would have been new to her.

[14]The arrangement made with the claimant was for the claimant to work three days per week from the respondent’s office and two from home.

[15]At the point when the claimant started employment, Ms Dicks said that Ms Smith would have booked all the summer housing and housing through the September term so there would have been fewer booking issues for the claimant to manage. There would be bookings to start sorting for the following year and the management of the existing bookings.

[16]The plan the respondent had in place was for Ms Smith to train the claimant for a month after she commenced. At this point Ms Smith was working three days per week of which one was in the office. We saw an induction schedule which showed that the claimant had a week of induction training.

[17]In terms of the training provided by Ms Smith, Ms Smith explained that summer was a busy time and the training was dynamic, for example student complaints would come up and then the claimant would learn about handling those. Some tasks the claimant was already familiar with such as rooming. Ms Smith said that she had a month just devoted to the claimant’s training but after that was ‘incredibly available’ for the claimant.

[18]The claimant told the Tribunal that she did not have sufficient training at this stage. She said that her training needed a whole year because some tasks were seasonal. Ms Smith said it would take a year of experience to see how all the pieces fit together (ie a full cycle of programmes) but someone who was already doing a housing manager role should have been very familiar with the role within a month. It would not take a year to train; Ms Dicks said that a month was sufficient given the claimant’s past experience. Spreadsheets

[19]We heard evidence about how the housing was planned. Ms Smith had devised a spreadsheet which was used to plan housing for future programmes. Because there were long lead times for programmes, when the claimant started work the spreadsheet was populated up to the end of the year.

[20]Ms Smith told us that the mapping of housing was complex and the spreadsheet had to be very interactive. It automatically showed how many beds were free. Her spreadsheet included: dates, name of programme, number of students, faculty details and their dates and requirements. Repeat programmes had historical housing preferences and cleaning requirements. The accommodation manager would have to map new programme requests against what could be provided after regular programmes had been accommodated It was necessary to know the numbers of students of each sex and whether some required single rooms as well as the budget to see if a programme would fit. By having this all mapped the accommodation manager would be able to see whether a new programme could fit or whether it could fit if, for example, it changed dates.

[21]Ms Smith said that it was open to the claimant to devise her own system, for example to use a different programme or display information differently but the respondent’s witnesses were clear that any system devised by the claimant needed to do the same job as Ms Smith’s spreadsheet. Shared drive

[22]The respondent had a system of saving documents on a shared drive to which all employees had access.

[23]The claimant told the Tribunal that she preferred to use SharePoint which required documents to be shared with others by way of a link. She said it was easier for her visually to work in this format.

[24]Ms Dicks told us that the shared drive was something everyone had access to without a requirement to be sent a link. There would be folders for each term divided by area. There were proposal folders with information for particular programmes which would be added to over time. She said that it would be an unmitigated disaster if everyone decided not to use the shared drive.

[25]In early May 2023, there were clearly a lot of issues to deal with in relation to students and housing. The claimant was late to the office on various occasions, apparently due to issues travelling her home in Northamptonshire.

[26]There were some messages between the respondent’s managers which demonstrated that there were some concerns about the claimant early in her employment but these were not considered to be of great significance.

[27]On 17 May 2023, Mr McLatchie, director of student life, told Ms Smith that he had asked the claimant what her working hours were as she had been in late a few times. That same day she texted Ms Smith to say she would not be in until 11 am as she was taking her child into school.

[28]On 30 May 2023, Mr McLatchie texted Ms Smith to ask if the claimant was supposed to be in the office that day. The claimant arrived at 10:20 am

[29]On 5 June 2023, Ms Smith emailed Ms Dicks to confirm the working hours agreed with the claimant. She described the claimant’s timekeeping as having been ‘a little lax’: Confirming Chervelle's hours: Monday 9-5 Tuesday WFH Wednesday 10-6 Thursday 10-6 Friday WFH Her timekeeping has been a little lax and I have spoken to her about keeping regular hours and informing not only her line manager but other relevant colleagues if she is off, changing her work from home day for some reason or running late. I will be working with her on half a day each week I am working until September to continue training and handover. I think she has really good potential.

[30]There were also various examples given of the claimant not responding in a timely way to work-related requests in this period.

[31]On 14 June 2023, the claimant emailed Ms Dicks to ask if she could change her working from home day from Tuesday to Monday as this would be more convenient for her around her childcare. Ms Dicks said that was fine provided the claimant was available when needed on Mondays and asked her to amend the staff whereabouts sheet.

[32]From 12- 15 June 2023, we saw correspondence where the claimant appeared not to have followed up on requests from Ms Bazell about faculty housing and Ms Smith had to become involved. The claimant said in evidence that faculty housing not part of her remit, although we noted that it was referred to in the document sent through by Ms Smith. She said that Ms Smith had a relationship with this accommodation manager and ‘took the reins’.

[33]On 28 June 2023, the claimant emailed Ms Dicks to say that she would be absent as her daughter had an accident and was in A and E.

[34]In July 2023, there was an issue about missing bedding at Hayloft House. The claimant had to arrange at short notice for bedding to be available for an incoming group of students.

[35]Ms Dicks gave evidence that the claimant did not speak to her about this issue or say she needed support. She said that reordering of bedding can be done by an online order or phone call.

[36]The claimant said in evidence that she had had to go to Argos. She borrowed another employee’s ‘ Equals Card’ to pay. She had to bring back bedding for 10 – 20 students from Argos and then put the bedding in student rooms. She could not get a same day delivery. She said it was common sense that she would need help. She said that she explained the situation and Ms Smith said to speak to Hayloft staff to see if they could help but they could not. She said that she told Ms Smith Hayloft staff were not helping. She said in evidence that this issue was ‘slightly’ to do with her race as if it were ‘Charlie or anyone else’, help would have been there without having to ask for it. They would have sent student services advisers to help.

[37]Ms Smith said the issue arose in July when employees were spread across London. If the claimant needed help she should have asked . She had telephone numbers including an emergency line. Ms Smith was not sure if she herself was even in London that day; there was a good chance she was working from home. If the claimant had specifically asked her for help, she would have done what she could either herself or by asking someone else. It was not in the respondent’s interests not to sort the situation out as it would reflect badly on the respondent if student rooms were not ready.

[38]On 31 July 2023, the claimant emailed Ms Smith to confirm she that she would be absent that day due to hitting her head and having a headache.

[39]On 17 August 2023, the claimant sent a spreadsheet link to two programme managers and Ms Smith. It invited them to ‘edit and add as needed’. The claimant had devised her own spreadsheet. She used a Google spreadsheet as she said she worked better in Google. The claimant agreed that was ‘basic’; it had dates and numbers but not accommodation needs for students. We understood this was matters such as commuting distances for the group as a whole but also specific needs of members of the group: the age, gender and special characteristics of members, sharing preferences, access needs and so forth.

[40]The claimant said that she had this information elsewhere. What she appears to have told the respondent was that it was in emails pinned in her inbox. She said she worked best with the simplified spreadsheet. She said that programme managers were used to Ms Smith’s spreadsheet and were resistant to change. She said that she had been told she could introduce her own methods. She felt Ms Smith’s spreadsheet was over complicated.

[41]Ms Smith said there was resistance from programme managers because the claimant’s spreadsheet was insufficient. She had been told that the claimant pinned emails in her inbox with the remaining information. Programme managers were frustrated to be asked to replicate information which the claimant could find herself. A system of pinning emails would require the claimant to have a fantastic memory or reread all of the emails each time to see how a new request interacted with others. Programme managers would have no evidence that the claimant had logged the information about programmes.

[42]Ms Smith told us about her spreadsheet: I would have a working document for academic year, because I was in it daily checking, several sheets, an overall mapping of the academic year a sheet for J term, for spring, for summer and then another sheet where I would dump next year’s information so when it got to mid summer of a year I would set up a new spreadsheet using that information I had already dumped.

[43]Ms Bazell, programme manager, responded to the claimant’s spreadsheet: on 17 August 2023 Thanks for this, sadly it does give rise to some more questions from me! (NB Heather will also need access to this) Do you want us to do this from now on, instead of sending you emails? Where should we put all the extra information you will need when reserving housing?(e.g. specified commute time, special access needs, coach drop-off requests etc.) Where do you want us to put hotel info for bookings PMs have made? And where should we put faculty housing requests (different dates, # bedrooms, studio vs one-bed). Can I ask you to put any accommodation requests I’ve already made by email for 2024 into this spreadsheet yourself? I’m happy to double-check what you’ve entered (tomorrow), but I can’t be on top of duplicating info into another spreadsheet, I’ll go mad!

[44]The claimant’s response to Ms Bazell was: I created this to primarily help me map out and keep track of who is coming and when. This is the basic info I need in order to place everyone. I do very much still need the emails however, if you could check this from time to time to make sure I have all the programmes there with correct dates and number, that would be ideal. This is everything I believe I have so far, hence why I asked you to check add or edit if what I have so far is not correct. Going forward as above just check maybe once a month what I have input.

[45]Ms Smith wrote to the claimant that day: Sorry I thought we were going to go over this before you shared with PMs and set really clear guidelines about what you need from them and when. You do need additional info like commute time as that is important as to where you can put them. Next Wednesday do you want to block out time to go over this and the booking/proposal timeline and process?

[46]On 18 August 2023, the claimant sent a welcome email to students with the wrong date of arrival. Ms Smith raised that with her.

[47]In August 2023, complaints arose regarding mice and/or insects in accommodation called Tufnell House.

[48]Ms Dicks’ evidence was that the claimant’s role would involve responding to student complaints and working with the housing to solve them. This was not an unusual complaint.

[49]The claimant accepted in cross examination that this was a matter for her to deal with in first instance. She said that Ms Smith had contact information for the more senior manager at Tufnell House which she did not share. She said that she knew this because Ms Smith later contacted that manager about a contract matter. The claimant said that she only knew the manager who was present on site. That manager did bring in people to exterminate mice and look at entry points.

[50]The claimant said that she felt the failure to provide her with contact details was on some level race discrimination. The claimant said she felt that as the only person of colour in a senior role in management, there was a campaign to get her out, although this was not a particular example of that. She also said she was not saying Ms Smith refused to provide her with contact details because of her own race.

[51]Ms Smith said that any contact information was accessible on the shared drive and she would have passed on information she had. She had no specific memory of the matter and it was not put to her that she did know the details of the more senior manager as she then dealt with that manager about a contract matter.

[52]It was Ms Dicks’ evidence that by the end of summer 2023, it was becoming apparent that the claimant not very responsive to requests and issues raised by others.

[53]On 6 September 2023, Ms Smith accompanied the claimant on a smoking break and during this conversation was informed that the claimant was pregnant with twins.

[54]The claimant said that Ms Smith told her she should keep pregnancy to herself as long as possible as she would be treated differently by Tracy [Dicks] and management as she, Ms Smith, had experienced that during her pregnancy; Tracy had acted funny towards her and left her out once she said she was pregnant, excluding her from conversations and meetings and not responding to her emails

[55]In Ms Smith’s account of this conversation, she said that the claimant was upset; she said that her husband had had a vasectomy and accused her of infidelity. She mentioned that she might terminate the pregnancy and needed to decide before she went on her upcoming holiday so she would know whether she could drink alcohol. Ms Smith said that she recommended that the claimant not tell anyone about the pregnancy at this stage if she did not know what she was going to do. It was very early in the pregnancy.

[56]She did not remember any conversation about being treated differently by Ms Dicks herself but if she had said it, she believed it would have been about how, late in her pregnancy when Ms Dicks was recruiting her cover, Ms Dicks said Ms Smith should not worry about it. That was all she could think she could have mentioned as being different treatment.

[57]The claimant did not recall Ms Smith referring to other people who had been on maternity leave and returned to their jobs although Ms Smith said she had done so.

[58]The claimant denied referring to the possibility of termination as she said she was opposed to abortion. She was emotional as the pregnancy was unplanned and questions were raised about the efficacy of her husband’s vasectomy.

[59]The important difference for the Tribunal’s purposes was whether Ms Smith had told the claimant to conceal her pregnancy to prevent Ms Dicks treating her differently.

[60]We concluded both witnesses were giving an honest account of a conversation which had taken place a long time previously and was not documented. Overall we preferred Ms Smith’s account and felt that the claimant had misremembered and/or read too much into what Ms Smith had said about not sharing her news immediately and her own experience with Ms Dicks. We could see no evidence that Ms Smith was in fact aggrieved by her treatment on maternity leave by Ms Dicks or anyone else,. She had been on maternity leave twice and returned, latterly effectively covering two roles and working 60 hours per week. She was a highly assiduous and conscientious manager who may have wanted to have more of a role in recruiting her cover than Ms Dicks felt was necessary. We accepted that the claimant had given her the impression she was considering whether to continue with her pregnancy and that is why she advised her not to discuss it further before making a decision.

[61]On 15 September 2023, Ms S Plumley, director of customized faculty led programmes, wrote to Ms Dicks: General feedback lately has been that Chervelle hasn’t been the most responsive (I know she was out with a medical thing in the last couple of weeks) and price estimates have been a bit all over the place for the same thing. All budgets were coming back with £185/night for Nell Gwynne which is obviously not sustainable and will price out a lot of budgets … Connected to that, Debbie doesn’t feel like she’s had enough time to hand over to Chervelle – and is a little concerned that she’s not as strong on the maths / spreadsheet side as she might need to be to keep everything on track. As we know, Debbie loves a spreadsheet, but she really did keep great track of dead space, budgets, checking whether budgets could handle what she was booking etc. I know we need to find a happy medium – Debbie likely took on too much of it from the PMs, going into their budgets and in contact with the faculty… and I would like to restore PMs having responsibility for all components of their program (or at least reiterate it!) but I think Chervelle probably needs more continued support as she gets beyond this summer and needs to start looking forward to next summer. All of that to say – PMs now want a meeting to review and confirm who is doing what. I’m inclined based on the above to keep it central, but a system has to be agreed on…

[62]Ms Dicks said that during the autumn, the claimant was not around a lot. Staff began to ‘murmur’ about her performance. Mr McLatchie shared an office with the claimant but never knew where she was . She was regularly asked to complete the staff whereabouts sheet.

[63]The claimant said in cross examination that at this point in time Ms Smith probably did want to set some clear goals for her. She said that she felt that people just did not like the way she was trying to change things and that is where the discontent arose

[64]On 29 September 2023, at 10.59 am the claimant informed Ms Smith via text message that she had lost one of the twins: It's been a very upsetting few days. But just got out of the hospital and will be home soon and online

[65]Ms Smith replied right away: Aw, Chervelle, I'm so sorry to hear that. Please just take some time. You can get signed off and me and Charlie can cover your work. Just let me know. Later that day she wrote: Let me know if there's a good time to call you later. Don’t work today or the weekend (unless you want a distraction) We have it covered so please take the time you need xx Please don't work tomorrow x

[66]There was subsequently a telephone conversation between the two in which the claimant gave Ms Smith permission to tell Ms Dicks what had happened which we refer to further below.

[67]It is relevant to note further issues were raised with Ms Dicks about the claimant by staff in September 2023. By late September 2023 Ms Dicks said that she becoming aware of growing discontent around the claimant’s performance from her colleagues. She did not use same systems as Ms Smith, who had been very organised. Staff were not getting a response or were receiving a vague response; they would be given inconsistent information about housing.

[68]On 29 September 2023, Ms Plumley followed up on her 15 September 2023 email: I just wanted to follow up on this as I’ve just had a call with Debbie which has raised a few additional concerns. She shared that Chervelle has been out a little this week due to some personal issues and she and Charlie have been unable to find documents they needed in her absence, and again found her quite unresponsive. She’s also really concerned about record keeping, forward planning and general comprehension of how everything needs to work – moving groups to Vega where we are held to the beds vs being able to sell back space to Stay Club where there are gaps- Beatrice has been given incorrect info about one of her J-Term groups which suggested that Chervelle doesn’t have the full grasp yetthat she should keep Stay Club beds because overall they are cheaper- even though it would mean paying twice as we’d also have to pay the Vega beds… I know there is a lot of history and personal feeling to this but the general feedback still isn’t great. Debbie said she can’t see how Chervelle is tracking things, she claims to not have information she’s been sent, and isn’t responding to external stakeholders such as the residences, Penny, Nell Gwynne etc. who are in turn chasing Debbie. It’s all very well to say it’s not Debbie’s concern anymore, but I can appreciate how frustrating it is to see things that need to happen, not happening, and to have things automatically land back with her. Would love to have a conversation about this when you have time, as its starting to impact the PM team.

[69]Ms Dicks responded to Ms Plumley that day: I met with Debbie briefly on this on Wednesday but we had to cut is short due to her meeting a visitor and Chervelle is out due to one of her children being in hospital which isnt ideal but cannot be helped. I will talk to Debbie again as clearly she has had a different conversation with you than she did with me so we need to avoid that if we can as we do need to try to make this work for everyone. Housing is a massive role in London so we need to balance out helping her and making sure she has a handle on it. Debbie knows that I sent Chervelle an email re housing needs and want to have a meeting with her but of course that won’t happen until she is back. The ‘history and personal feeling’ piece – I don’t know what this is but will ask Debbie Leave it to me

[70]Ms Smith had told Ms Dicks that the claimant had a child in hospital as she had not told Ms Dicks at that point about the claimant’s pregnancy and loss of one of her twins.

[71]That same day, Ms Dicks emailed Ms Smith requesting that they have a meeting to discuss the claimant’: Can we have a meeting next week re Chervelle? I have just had an email from Sarah following a phone call with you and clearly there is more discontent with her performance than we discussed on Wednesday and I know that was curtailed by the visitor so know we didn’t get a chance to discuss it in depth. I really want to avoid this becoming a big issue which impacts everyone and it sounds from Sarah that the other PMs are complaining. If Chervelle isn’t working out we need to start a process where we set clear goals for her and meet regularly so she has an opportunity to meet them and understand where she is falling short. We also need to have a back up plan re how we handle housing if there is an issue which cannot be fixed. I have training Monday but I could pop out and have a call or we can have a call Wednesday so let me know. I just don’t want this issue to grow and become something which we cannot fix. I will then meet with her and discuss things.

[72]On 30 September 2023, a program know as the Foothills group arrived at accommodation called Vega House. Ms Dicks said that there were numerous complaints from students about rooms not being ready and being dirty. The claimant had changed cleaning company. There was a lack of paperwork for the new company. When they looked into the new company it appeared to have been struck off. The lack of paperwork meant the respondent had a lack of redress for the poor work and ended up paying a significant sum to an alternative cleaning company.

[73]On 2 October 2023, Ms Smith telephoned Ms Dicks to inform her that the claimant had been in hospital due to complications regarding a pregnancy. This was the first time that Ms Dicks was aware that the claimant was pregnant. She said that she was not told at the time that it was a high risk pregnancy. Ms Dicks was not sure in evidence whether she knew at the time there was an ongoing pregnancy but she said she definitely knew that before the claimant came back from her October 2023 holiday.

[74]On 2 October 2023, Ms Dicks granted the claimant some compassionate leave and also addressed an issue about the claimant’s annual leave. I have just spoken with Debbie and she has shared with me some of what has been going on with you this past couple of weeks. I am very sorry to hear that things have been so diﬃcult and understand how hard it must be at the moment. I will speak to Katie in HR to let her know and I will approve personal time for today and tomorrow so you can concentrate on yourself. If there is anything outstanding in the next few weeks work wise please can you let Debbie and myself know. You have 9 days annual leave booked from Wednesday which I assumed were just odd days but I understand you will be away in Jamaica. With the time diﬀerence I don’t think it is conducive for either you or us if you are going to be working the odd days when you are away – when I approved these days I didn’t know that you were going to be abroad and looking to work from there so please can you request holiday for the 4 days that are missing – 6th, 10th, 13th and 17th – and I will approve them. When you are back we can meet and discuss how we can support you going forward and review how things are going.

[75]The claimant had booked holiday abroad but had treated some of the days she was abroad as working days. She accepted at the hearing that she could not realistically have worked from aboard. The claimant did not have sufficient annual leave to cover her full period of time abroad but the respondent ultimately allowed the extra days as unpaid leave.

[76]The claimant criticised Ms Dicks for not mentioning her pregnancy but accepted in cross examination that ‘she may have been trying to be sensitive to my situation’. Ms Dicks said that she would not mention someone’s pregnancy unless and until they raised it themselves.

[77]The claimant was coming up for the end of her probation period. On 3 October 2023, the claimant texted Ms Smith saying she was concerned about her upcoming meeting with Ms Dicks. Ms Smith responded that she did not think it would be ‘a fail’.

[78]Whilst the claimant was on holiday between 4 and 18 October 2023, there was correspondence about the probation meeting between Ms Dicks and Ms Garnham in HR on 17 October 2023. Ms Garnham asked if the claimant had passed probation and Ms Dicks replied: No she hasn’t She has not returned from her holiday so I cannot meet her until next week to discuss the issues we have so I will be in touch when I have done that but we will need to extend and not pass her for now

[79]We understood that the Foothill group complaints were being dealt with whilst the claimant was on her holiday.

[80]The claimant told the Tribunal in respect of these complaints that they were minor or unjustified: - There were complaints about crumbs in the kitchen which could have been made by another student; - One complaint arose from looking in an air vent; - The complaints were only raised several days after arrival.

[81]The claimant told the Tribunal that the complaints were blown out of proportion because the management and staff at Vega House were black. She compared the seriousness with which these complaints were treated with the response to complaints at Tufnell House where there were mice and a broken microwave.

[82]Ms Dicks and Ms Smith gave evidence to the Tribunal about why the complaints had to be pursued. This was a new contract with Vega House. The student group was a demanding one and they complained a great deal. Because it was a new contract, the rooms should have been immaculate. It was expensive accommodation and needed to make a great first impression. The respondent was hoping to establish long term relationships with this housing. It was important to convey to Vega management at the start of relationship what the expectations were and reinforce the standards expected. Tufnell House was a one off short term rental. No future relationship was being cultivated. Mice issues were endemic in London accommodation.

[83]In evidence the claimant said that Ms Smith had booked Vega House and been to the building and knew that management and staff were black. Ms Smith said that she had previously visited Vega House once and met a white American man. She visited again when there were issues and the claimant was away. We accepted that Ms Smith had little prior dealing with Vega House or knowledge of the race of its staff and management prior to attending to discuss the complaints which arose.

[84]Whilst the claimant was away, Ms Smith said she had to put together a new spreadsheet for bookings. She said that the claimant did not subsequently update either spreadsheet.

[85]We noted that there was no return to work meeting when the claimant returned after her absence which was initially due to the loss of a baby and latterly due to her holiday. The respondent did not carry out return to work meetings for ill health absences under seven days.

[86]On 24 October 2023, Ms Dicks and the claimant met to discuss the claimant’s performance. It was common ground that Ms Dicks extended the claimant’s probation.

[87]The claimant’s account of meeting was that the only basis given for extending probation was a complaint from a student about cleanliness. The claimant said that she was not responsible. The rooms looked ready and clean on inspection. Rooms were checked by other members of staff. Students who checked in the week before had not complained.

[88]The claimant agreed in cross examination that, as Ms Dicks said, the meeting was positive. She said that she had the impression that she would get what she needed by way of support and training. The claimant said in oral evidence that she believed she had touched on her pregnancy and confirmed that though she had lost one twin, the pregnancy was continuing as a single pregnancy.

[89]Ms Dicks’ account of meeting was that it was fairly relaxed and pleasant. The claimant had not told her about pregnancy so she did not mention it. She had never discussed pregnancy with staff until they raised it with her. They talked about the claimant’s holiday and about the issues whilst she was away with the group who were unhappy. She said that staff had to work extra hours and there was a lot of grief and complaints.

[90]She said that the claimant denied there was anything wrong with the rooms. Ms Dicks said that Charlie and Layla and the claimant should meet to discuss the issue further as Charlie and Layla had said that it was horrific and there were students who wanted refunds.

[91]Ms Dicks said that they discussed the fact that the claimant’s probation date was coming up but that Ms Dicks was not fully confident the claimant could do the job. She asked the claimant if she needed support and what she was struggling with. The claimant said she did not understand what programme managers’ jobs were and wanted to shadow them in their roles. Ms Dicks told the Tribunal this did not make sense as the programme manager role was a completely different job. Instead Ms Dicks later joined the programme managers’ Teams meeting and asked if they could meet with the claimant to discuss budgeting and how they created programmes.

[92]They also discussed that the claimant felt she needed more time with Ms Smith.

[93]The claimant complained to the Tribunal that Ms Dicks did not mention her pregnancy or loss of her twin or any measures to address the claimant’s health and safety.

[94]Ms Dicks said that it was not her role to order a risk assessment. That was something always done by HR. The pregnancy had been reported to HR which would trigger information being provided to the claimant about the risk assessment. Ms Dicks was never involved in that process. She believed it was a private process.

[95]The claimant said that at the meeting she was told to make her own training plan. In cross examination she accepted there was a discussion about training and that it was agreed that the claimant would send list of training needs discussed. Although the claimants said repeatedly that Ms Dicks should have set the training plan as the claimant ‘did not know what she did not know’, she agreed that the email subsequently sent about the meeting suggested that they would do the training plan together and that Ms Dicks was being helpful about training and collaborative.

[96]On 25 October 2023, Ms Dicks wrote to the claimant: Hi Chervelle Thanks for meeting with me yesterday. As discussed, we will be extending your probation period for 3 months and you will receive a letter to that eﬀect from HR shortly. I wanted to reiterate some of the following things we discussed: Holiday – All holiday needs to be approved in advance by your line manager. I was not aware that you were intending to work from Jamaica and that would not have been approved. Going forward please request holiday as usual but anything unusual needs to be discussed in advance Staﬀ Whereabouts– In the past this wasn’t completed, I can see it is now so please continue to do that and inform your colleagues where you will be especially if you are visiting housing. Meetings and communication – Meet regularly (at least once a week) with Chris and Charlie so you all know where things are and you are all aware of what the other is doing and the messaging to students will be consistent Planning – Save your work in the shared drive so all staﬀ have access to it and know where things are, I understand you are in the process of doing this When Charlie is back from vacation I would like you to meet with him and Layla to discuss the issues with the Foothill arrival. They both believe the rooms were not clean or ready for the students and the complaints we received from the students suggested that but in our meeting you said they had been checked by you and were ready so we need to understand what went wrong and how to prevent any issues going forward. From our discussions you felt you needed more training so that you fully understand the role and how other staﬀ work. We discussed you having more time with Debbie Smith in the next 3 months to go through the elements of the role you are unsure of and you would like to shadow the Program Managers to clearly understand their roles Please send me the list of training needs we discussed and then we can put together a plan for training and also set goals to ensure that things go smoothly going forward

[97]The claimant then emailed Ms Dicks a list of the various points on which she wanted like further training Please see below my list for training. I think this is everything and some of the training points will role into another point so could become one training session.

[98]On 26 October 2023, Ms Dicks wrote to the claimant: As we discussed we need to know where staff are and the staff whereabout has you in TH today but whenever I have been down you have not been there so I am assuming this has changed If you are wfh or visiting a property please make sure that staff whereabout are completed each day and if there is a change update it. This is for work and also health and safety

[99]Ms Dicks had been at Taylor House and had seen the claimant was not in her office. When she asked those who shared the office with the claimant, they did not know where she was. Ms Dicks accepted that the claimant was in fact in the office that day as evidenced in an email the claimant sent that day to Ms Bazell.

[100]On 5 November 2023, the claimant emailed Ms Garnham requesting a risk assessment for her pregnancy, which she described as “high risk.” Prior to this date, Katie Garnham was unaware that the claimant was pregnant. Ms Garnham requests a copy of the claimant’s MATB1 form. Ms Garnham’s evidence was that she would wait for a MATB1 form and then organise her presentation and paperwork for a meeting with the pregnant employee which would include a risk assessment. She needed to get salary information from payroll and information about holidays and then calculate maternity leave dates. She said that it was her policy to have all the information together before meeting with the person.

[101]On 6 November 2023, Ms Dicks issued a formal letter to the claimant to confirm the extension of the claimant’s probationary period: Further to our probationary review meeting 24 October 2023, I am writing to record our discussion regarding your 6-month probation review. At the meeting we discussed the standards required of you in your role as Accommodation Manager. Unfortunately, you have failed to meet these standards and you explained that you feel you require further training of the role. After careful consideration of your explanation, I believe it is appropriate to extend your probationary period for 3 months, until 2 February 2024. We expect to see an immediate and sustained improvement in the following areas: Require an immediate improvement in communication with other staff members Complete refresher training for the role of Accommodation Manager Improve understanding of the role of Accommodation Manager and perform at an acceptable standard Informing your manager of annual leave requests and waiting for approval before taking annual leave. These requests should not be made at the last minute but at least two weeks in advance. During this extended period, the following support will be provided: We will continue regular one-to-one catch-ups to address any issues and record any developments Provide a six-week refresher training program on the role of Accommodation Manager While I am hopeful that with the additional help put in place that you will meet the required standard during the extended probationary period, I must warn you that a failure to meet this standard during the extended period will lead to you being deemed to have failed your probationary period, resulting in your employment being terminated. If you have any queries about the contents of this letter, please do not hesitate to contact me.

[102]Also on 6 November Ms Smith corresponded with the claimant to discuss a having a catch up and they agreed to meet up on the 8th when the claimant would also be having training with programme managers. The claimant complained she did not yet have a training plan and Ms Smith agreed that they would work on that together.

[103]On 8 November 2023, Ms Smith sent the claimant a detailed plan for her training day. At the end of day, Ms Smith wrote to Ms Dicks in detail: She said she had literally wanted to shadow the PMs, watch them work from behind and ask questions. Sorry if this is what you'd also expected but I explained that about 90% of what they do would be irrelevant to her role. What I think would be more beneficial is shadowing me doing her role. this would make sense since she can see where I'm going to find things on shared, what I'm updating, what I'm prioritising and why, what processes I'm using etc. I'm happy to do this and would suggest we start with 1 day a week for 4 weeks. I think this is a critical time for getting housing set up for summer and she needs intense intervention now if we are to see any progress. She seems very confused about her role in general, doesn't want to use shared, thinks people are asking too much from her. I explained her role in the team and that using SharePoint wasn't sufficient if she is off or away, we don't know where to find things, we discussed her knowledge as being a critical piece of program information therefore there is a sense of urgency in obtaining information and she has a responsibility to keep people informed to build confidence in her. I said it was difficult to support her since there is no evidence of her work in shared to back up what she is saying since she insisted on having it all on SharePoint.

[104]The claimant accepted that she saw a document which arose from the training and included the following: Action Point: Move all housing information from SharePoint to shared This must happen by Monday 27 November. Please work on this today and tomorrow and confirm to Tracy on Monday 27 November that everything has been moved to shared / London / London Housing / Chervelle.

[105]The claimant told the Tribunal that she was moving the documents but they might not have all been moved by the deadline. She could not say how much had been moved. Ms Smith said that she never saw the material on the shared drive, whether in the folder created for the claimant or elsewhere.

[106]A further training day planned for 15 November 2023: was cut short due to a Foothill student incident. The claimant wrote to Ms Garnham: I hope you are well. My midwife has asked that I have a risk assessment carried out at work as she has some concerns as my pregnancy is high risk. She did advise that this should have already been done. Please could you arrange this for me and at my request could I have it with a member of HR as I have not been made to feel comfortable since advising of my pregnancy and would prefer it not be someone I directly work with?

[107]On 21 November 2023, the claimant had finance training. On 22 November 2023 training was planned but the claimant emailed Ms Dicks to say that she was attending A and E due to a foot injury. Ms Dicks emailed the claimant that day: Let me know when you feel you can work from home so we can look at arranging some remote training as I know unfortunately you and Debbie have not been able to meet face to face much. The claimant did not reply to that email but agreed in cross examination that Ms Dicks had been helpful and collaborative about training.

[108]On 23 November 2023, Ms Dicks emailed the claimant to confirm she had added the claimant’s sick day onto the HR system as the claimant had not done so. She sought clarification about whether the claimant was able to work from home: With regards to your training, we have unfortunately missed two days of training with Debbie due to the student issue last week and your accident so we do need to make sure that this is done next week even if on TEAMS. I am attaching the list of what has been covered so far, the action points and the plan for what Debbie was going to go back over the past two Wednesday. Please do send me any other training requirements you have, anything not covered here which would be helpful so we can plan for that. As a matter of urgency please move all documents you have been working on in SharePoint to shared in the folder created. We have to have things kept where staff can access them when you are out. This must be done by Monday 27 November.

[109]On 5 December 2023, Ms Dicks emailed the claimant seeking an update on her foot injury and requesting again that she provide a self-certification form. She said: I cannot see anything in the folder I created in shared for you re the work you were doing in SharePoint. Have you had issues access it? If you have can you email it to Dami so she can save it there for us? Re training, I really think we need you to meet with Debbie and go through things tomorrow as I know it has had to be cancelled a couple of times. Even if it is remote rather than face to face it would be good with the end of year coming. Homestays are something I know you need help with but there planning side of things is very important especially re the summer so I want to be sure you understand the planning document and of you are using something else that all the PMs and delivery staff know what that is

[110]The claimant said in cross examination that she had added documents to shared drive but not in the folder created for her but to other programme files where she said they belonged. She said that it was there to see and she did not feel the need to send an email to Ms Dicks explaining what she had done. We were not persuaded that the claimant had done this work or uploaded it anywhere. We could not understand why she would not have emailed to say so if she had uploaded documents.

[111]The claimant agreed in cross examination that it was clear Ms Dicks wanted her to have training and was being helpful about training. She also said that she did not think any effort was put into making sure she was successful but it was constructed to look like the respondent had invested time in her.

[112]At some time on or around 6 December 2023, Ms Garnham was asked by Ms Dicks to convene a formal meeting with the claimant to discuss her performance.

[113]Ms Dicks gave evidence about why she wanted the meeting. There was a lack of response by the claimant to emails asking about the documents and other matters. Housing was extremely important to the success of the respondent’s programmes. She said that the best outcome of the meeting would have been an honest discussion about the lack of responses by claimant and about how to fix things, possibly by allocating another member of staff to work with the claimant. The preference was not to terminate the claimant’s employment and have to recruit again.

[114]On 6 December 2023, the claimant provided a copy of her MATB1 form to Ms Garnham: Please see my attached MATB1 Form. To give as much notice as possible, intend to start my maternity leave at the earliest date of Sunday, 28th January 2024. This is due to the difficulties I am having with this pregnancy and my risk. Travel is becoming hard for me, especially going up and down the tube stairs especially Gloucester and Victoria station and leaves in in pain for a while after doing so. If there were an option to WFH and come to the office or site when only absolutely necessary to do so I would be happy to take my leave later than this. I hope to hear from you soon on next steps.

[115]Ms Garnham was cross examined on why she did not take some action at this point; she said that she had not had the conversation with the claimant yet to fully understand the issues and would also have to liaise with the claimant’s line manager to see what was possible by way of working from home. She accepted that it was an oversight not to have raised the issue with Ms Dicks at the time.

[116]Ms Dicks was also cross examined about this email, which she did not recall seeing at the time, although she was copied in to Ms Garnham’s response to it. She said that she was expecting the claimant to go on maternity leave in late January in any event. She did not remember the request to work from home but said it would not have been an unusual request and she would not have had an issue with it.

[117]On 8 December 2023, Ms Garnham issued an invitation letter to the claimant asking her to attend a formal capability review meeting with Ms Dicks the following week. She wrote in the same email which attached the letter: Thank you for sending through your MATB1 form. Unfortunately, it is incomplete, the requirement is that the form is stamped which currently it is not. Can you please provide a completed form and/or allow me to contact your surgery to request this. Regarding your maternity leave, current maternity legislation allows for maternity leave to start 11 weeks before your due date, so the earliest you could commence yours is 29 January 2024. On a separate note, I attach a capability letter for you to attend a meeting next week with Tracy Dicks and myself. I have given the option for either Tuesday 12 December or Wednesday 13 th December. If you could please let Tracy know today which day is more convenient for you and whether you would like to attend in person or by teams. Should you have any queries please do not hesitate to speak with Tracy in the first instance.

[118]The letter itself said: The specific concerns in relation to your performance are: Communication with staff members Improve understanding of the role of Accommodation Manager and perform at an acceptable standard Not being contactable during working hours Failing to respond to emails from colleagues Not completing expenses in a timely manner and upon request Informing your manager of annual leave requests and waiting for approval before taking annual leave. These requests should not be made at the last minute but at least two weeks in advance At the meeting, we will discuss the specific concerns with you in more detail and you will be given the opportunity to respond to these issues.

[119]On 11 December 2023, the claimant wrote to Ms Garnham My midwife popped over this morning after speaking with her on Friday. She advised that stamps are no longer in place and instead it is now a pin number which is on the form. However, she advised she is happy for you to give her a call to confirm this. Her phone number is 07970412907. Her name is Hollie. I am happy to have this meeting Via Teams/zoom on Wednesday as I will be at Vega all day preparing for Jterm with the manager.

[120]Ms Garnham was cross examined about why a meeting did not take place with the claimant to carry out a pregnancy risk assessment prior to the claimant being signed off sick. She accepted it could take as little as 24 hours to get the information she needed before conducting a meeting. She told the Tribunal how busy she was with facilities work which was the other significant part of her role. There were two large projects ongoing at that point. She had arranged a risk assessment for other employees on receipt of MATB1. She was not aware of another employee who had not had a risk assessment. The delay was purely because of the timing issue in the claimant’s case.

[121]On 12 December 2023, the claimant asked for a postponement of the formal capability review meeting, arranged for 13 December 2023, to the following week: I had been waiting for a response from Vega. There are not rooms appropriate for the meeting. Furthermore, I have spoken with my midwife again who advised she is able to give me a report to support any questions you may have and support me throughout the meeting. This however will be ready for collection on Friday. So, I [am] not comfortable in attending the meeting until I have this and would like to postpone until Monday or Tuesday of next week.

[122]In evidence, the claimant said that she wanted this report because if they were talking about capability, she might not be able to do things how she usually did them. The midwife would report on what she should not be doing. She said that she wanted the meeting by Teams because she was experiencing high anxiety about her treatment. She would feel more comfortable not being in a room with people who had not acknowledged her pregnancy, not given her any real training and were ‘plotting to move her on and out.’

[123]On 13 December 2023, Ms Garnham agreed to the claimant’s request to postpone the formal capability review meeting and it was rearranged for 19 December 2023. We noted that Ms Garnham was not willing to hold the meeting by Teams if the date was a date the claimant would be in the office and that her invitation letter was intended to convey that the meeting would be in person if the claimant was at the respondent’s premises that day. She considered an in person meeting was generally preferable particularly to allow for the claimant to be supported if she chose to be accompanied. We noted also that the letter sent to the claimant was more naturally read as suggesting that the claimant could choose to have the meeting remotely. We were told that the respondent was anxious to hold the capability review before the Christmas shut down in part because the period after Christmas was busy, with a student group arriving on 29 December 2023.

[124]We saw the respondent’s performance management policy. This was not a very detailed document. It provided: Monitoring of capability issues The line manager is responsible for monitoring the performance of employees. If the employee is not achieving the agreed targets after interventions have taken place a further meeting will take place between the employee and the line manager. At this stage it is likely to be appropriate to involve the HR department in the discussions. Possible outcomes of this discussion include:• Identification of further training or interventions

• Moving the employee to a different role (with the agreement of the employee)

• Disciplinary action.

[125]There were no timescales in the procedure but we were told that the respondent would generally seek to give 48 hours’ notice of a meeting.

[126]On 19 December 2023, the claimant submitted a fit certificate indicating that she was unfit to work on grounds of ‘stress’ and that she had been signed off work from 18 December 2023 to 1 Janauary 2024.

[127]On 1 January 2024, the claimant wrote to the respondent to resign: Due to my current circumstances, how I have been made to feel and my midwife and GP are keen to sign me off again, I am handing in my notice. At present my notice period is a week. However my GP is wanting to sign me off. Please let me know if you need the sign off form. The claimant also commenced early conciliation with ACAS

[128]On 3 January 2024, Ms Garnham wrote to accept the claimant’s resignation, requesting that all company property be returned by 8 January 2024.

[129]On 17 January 2024, Mr Heuvel, the respondent’s solicitor, wrote to the claimant regarding company property which the claimant had failed to return by 8 January 2024. He wrote: Your final salary and payment for any accrued but untaken holiday are due to be paid into your account on 31 January 2024. You will also receive statutory maternity pay from AIFS in due course. Please ensure that you notify AIFS of any changes in your circumstances (in particular, but not limited to, the commencement of any employment) as this may impact your continuing entitlement. You were requested by AIFS to make arrangements to return all company property by 8 January, but we are instructed that as yet you have failed to do so. We understand that you are currently in possession of the following equipment which belongs to AIFS: Dell Monitor (supplied on 31 May 2023) – value £133.56 Dell laptop (supplied on 2 May 2023) – value £936.71 CCS replacement iPhone (supplied on 20 June 2023) – value £786 Door key to Taylor House Please make arrangements for the immediate return of all of the above, failing which AIFS will be looking to you for the costs of any missing items, as well as the costs of any remedial action which it may have to take as a consequence (including but not limited to changing the locks at Taylor House for security reasons). Please note that any such costs may be offset (to the extent possible) against any sums otherwise payable by AIFS to you.

[130]The claimant did not respond directly to Mr Huevel; she said that she was speaking through Acas and had told Acas she was happy to return the property. She said she was not physically at home as she was staying with family. She was not going to travel to London with the property whilst pregnant and it would cost a lot of money to post it, which she could not afford.

[131]The claimant wrote to Ms Garnham on 16 February 2024: Hello, I have been told by the Statutory Dispute Department at HMRC to contact you to arrange payment of my entitlement to SMP. They advised this payment should be paid regardless of a tribunal claim or not and should not go through ACAS as I am entitled to it either way. They confirmed that you can choose how this is to be paid either monthly or as one lump sum and I have no influence on how you pay this. Please can you confirm when this payment can be arranged to be paid and how it will be paid. We can also arrange the collection of items.

[132]On 20 February 2024 , Mr Heuvel wrote to the claimant again. He requested that the items be made ready for immediate collection from the claimant’s home address and said that the respondent would book a courier to collect the items: We write further to our previous letter dated 17 January 2024. We have also been made aware of the email which you sent to Katie Garnham of our client dated 16th February 2024. Please ensure that all further communications are addressed to us. As we stated previously, you are entitled to receive statutory maternity pay from AIFS in due course. This letter is to confirm that you will receive your full entitlement (£9,326.40, less all applicable tax and national insurance contributions) as a lump sum payment. The payment will be processed at the end of this month through the normal February payroll and will therefore be paid into your bank on or about 29 February 2024. Despite our previous request, you have failed to arrange for our client’s property to be returned to it. For the avoidance of doubt, the following items should have been returned: DELL monitor serial # 1404176084 and cables DELL Laptop serial # 1404146997 and cables APPLE iPhone 14 serial # DV4HQ797VX and cables Front door key for Taylor House, 2 Elvaston Place, London SW7 5QH

[133]On 21 February 2024, Mr Heuvel emailed the claimant to confirm that a courier had been booked to collect the equipment from her home address that day at 2pm. The claimant responded that she was away from home on a camping trip and the earliest the equipment could be collected was 27 February 2024. Mr Heuvel wrote to confirm that the courier had been rebooked for 27 February 2024.

[134]On 28 February 2024, the claimant emailed Mr Heuvel to say that ‘there was some sort of confusion’ when the courier arrived and only two boxes of equipment were collected. She said that the other box was being sent by post. She emailed to ask when her SMP would be paid.

[135]On 29 February 2024, Mr Heuvel emailed the claimant to say that the claimant’s work iPhone and the keys to Taylor House had still not been returned. The claimant emailed Mr Heuvel to confirm that she had requested that the delivery of the box of equipment be delayed until she was paid her statutory maternity pay.

[136]On 5 March 2024, the respondent informed the claimant that it would be withholding £1,538.53 from the statutory maternity pay owed to cover the value of the missing phone and the cost to the respondent of having to change the locks on its premises. We understood the respondent arranged to transfer the bulk of the SMP at that time.

[137]On 7 March 2024, the claimant emailed Mr Heuvel to stay that there had been an attempt to deliver the remaining items but they had been returned to the claimant as there was no one to receive them at the respondent’s premises.

[138]On 8 March 2024, the remaining items were delivered to the respondent and the respondent released the sum of £1,538.53 previously withheld. It appears the claimant received the balance of SMP on 11 March 2024.

[139]As to what was happening in Early Conciliation, we were told that there were discussions from 19 January 2024 onwards, on the basis that: 1) The claimant would need to return the property; 2) The respondent would pay SMP as a lump sum.

[140]We were told that that the respondent made what it described as a commercial offer on 2 February 2024 which was conditional on equipment being returned within three days of the agreement. It would pay the claimant a total sum of £12,000 of which £9326.40 was SMP and the remainder was ex gratia. Agreement appeared to have been reached and discussion and COT3 wording were sent to the claimant on 7 February 2024. The day after apparent agreement, the claimant communicated via Acas that she did not understand why the SMP payment would be paid net of tax and NI; as a result the agreement was not concluded. The claimant confirmed that she would not agree to the settlement on 16 February 2024. General matters

[141]We heard some evidence about equality training. This was not arranged by HR but organised by the individual divisions within the respondent organisation. Ms Garnham provided the HR expertise for the respondent but her role at time was more weighted towards facilities. There were no other HR staff.

[142]We heard some evidence about the staff breakdown. In the relevant division, 75% of the staff were female. Of 15 – 20 London staff, perhaps a quarter or a little less were BAME. One out of the six managerial staff was BAME (not including the claimant during her tenure).

[143]In respect of knowledge of the claimant’s pregnancy, the evidence we had was that this was known to Ms Smith, Ms Dick, Ms Garnham and Mr McLatchie.

[144]Ms Garnham was asked about her experience of pregnant staff and probation. She thought that most staff had been employed longer than their probation periods by the time of their pregnancies although she was aware of one member of staff who started employment already pregnant with twins. None of the other staff she was aware of who had had their probation periods extended was pregnant at the time. Submissions

[145]We received helpful written and oral submissions from both parties. Law Automatically unfair dismissal

Law

[146]If the reason or principal reason for dismissal is one of a number of proscribed reasons, including the facts that the employee is pregnant or is seeking to take maternity leave, the dismissal will be automatically unfair under s 99 ERA 1996.

[147]Where a claimant asserts that a dismissal is automatically unfair but lacks sufficient service to bring a claim of ordinary unfair dismissal, the claimant will bear the burden of establishing that the reason for the dismissal is the automatically unfair reason: Ross v Eddie Stobart Ltd EAT 0068/13. Pregnancy discrimination

[148]Under s 18 Equality Act 2010, an employer discriminates against a worker if during the protected period in relation to a pregnancy of the worker’s, it treats her unfavourably because of her pregnancy, a pregnancy related illness, because she is on compulsory maternity leave or because of the exercise of the right to maternity leave. The protected period begins when the pregnancy begins, and ends, if the employee 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; if she does not have that right it ends at the end of the period of two weeks beginning with the end of the pregnancy. Direct discrimination

[149]In a direct discrimination case, where the treatment of which the claimant complains is not overtly because of the protected characteristic, the key question is the “reason why” the decision or action of the respondent was taken. This involves consideration of mental processes of the individual responsible; see for example the decision of the Employment Appeal Tribunal in Amnesty International v Ahmed

[2009] IRLR 884

at paragraphs 31 to 37 and the authorities there discussed. The protected characteristic need not be the main reason for the treatment, so long as it is an ‘effective cause' O'Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor

[1996] IRLR 372

[150]There is not a different approach in cases of pregnancy / maternity discrimination: South West Yorkshire Partnership NHS Foundation Trust v Jackson and ors EAT0090/18.

[151]This exercise must be approached in accordance with the burden of proof provisions applying to Equality Act claims. This is found in section 136: “(2) if there are facts from which the Court could decide, in the absence of any other explanation, that person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) but subsection (2) does not apply if A shows that A did not contravene the provision.”

[152]Guidelines were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

regarding the burden of proof (in the context of cases under the then Sex Discrimination Act 1975). They are as follows:(1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word 'could' in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

[153]The tribunal cannot take into account the respondent’s explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others

[2006] IRLR 748

; Madarassy v Nomura International plc

[2007] IRLR 246

, CA.)

[154]We bear in mind the guidance of Lord Justice Mummery in Madarassy, where he stated: ‘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 had committed an unlawful act of discrimination.’ The ‘something more’ need not be a great deal; in some instances it may be furnished by the context in which the discriminatory act has allegedly occurred: Deman v Commission for Equality and Human Rights and ors

2010 EWCA Civ 1279

, CA.

[155]The fact that inconsistent explanations are given for conduct may be taken into account in considering whether the burden has shifted; the substance and quality of those explanations are taken into account at the second stage: Veolia Environmental Services UK v Gumbs EAT 0487/12.

[156]Although unreasonable treatment without more will not cause the burden of proof to shift (Glasgow City Council v Zafar

[1998] ICR 120

, HL), unexplained unreasonable treatment may: Bahl v Law Society

[2003] IRLR 640

, EAT.

[157]We remind ourselves that it is important not to approach the burden of proof in a mechanistic way and that our focus must be on whether we can properly and fairly infer discrimination: Laing v Manchester City Council and anor

[2006] ICR 1519

, EAT. If we can make clear positive findings as to an employer’s motivation, we need not revert to the burden of proof at all: Martin v Devonshires Solicitors

[2011] ICR 352

, EAT. Pregnancy risk assessments

[158]The obligation to conduct a risk assessment is found in regulation 3 of the Management of Health and Safety at Work Regulations 1999: “(1) Every employer shall make a suitable and sufficient assessment of – (a) the risks to the health and safety of its employees to which they are exposed whilst they are at work… For the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.”

[159]The obligation under regulation 3 is extended to risks for new and expectant mothers by regulation 16 (1): “(1) Where –-(a) the persons working in an undertaking include women of childbearing age; and

(b) the work is of the kind which could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any processes or working conditions, or physical biological or chemical agents, including those specified in Annexes I and II of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in safety and health at work pregnant workers and workers who have recently given birth or are breastfeeding the assessment required by regulation 3(1) shall also include an assessment of such risk. (2) Where, in the case of an individual employee, the taking of any other action employer is required to take under the relevant statutory provisions would not avoid the risk referred to in paragraph (1) the employer shall, if it is reasonable to do so, and would avoid such risk, alter her working conditions or hours of work. (3) If it is not reasonable to alter the working conditions and hours of work, or if it would not avoid such risk, the employer shall, subject to section 67 of the 1996 Act suspend the employee from work for so long as is necessary to avoid such risk….”

[160]In Page v Gala Leisure and ors EAT 1398/99 the EAT indicated that there are two types of risk assessment. The first is a generic assessment of the risks for pregnant employees required by reg 3 when read with regulation 16(1). The obligation to carry out such a risk assessment arises where there are female employees of childbearing age and the work is of a kind which could involve the types of risk specified.

[161]The second type of risk assessment is specific to a pregnant individual and is implicitly required by reg 16(2) and (3). The employer is required to consider whether the action it proposes to take under the generic risk assessment will avoid the risk for the individual, and, if not, must consider further action.

[162]The obligation to conduct an individual risk assessment only arises if regulation 18 (1) is satisfied: “Nothing in paragraph (2) or (3) of regulation 16 shall require the employer to take any action in relation to an employee until she has notified the employer in writing that she is pregnant…”

[163]In O’Neill v Buckinghamshire County Council

[2010] IRLR 384

, the EAT considered that three conditions had to be met before an obligation to conduct an individual risk assessment would arise: ‘(a) that the employee notifies the employer that she is pregnant in writing (clearly satisfied in this case), (b) the work is of a kind which could involve the risk of harm or danger to the health and safety of a new or expectant mother or to that of her baby, (c) the risk arises from either processes or working conditions or physical biological chemical agents in the workplace at the time specified in a non-existent exhaustive list at Annexes I and II of Directive 92/85/EEC.’

[164]In order for the obligation to conduct a risk assessment to arise, there must be a potential risk to the health and safety of the expectant mother or her baby arising from the working conditions as defined. The tribunal must have evidence of such a risk. Assertions that particular working conditions cause some pain or discomfort will not be sufficient: Madarassy v Nomura International Ltd

[2007] IRLR 246

[165]Where there is an obligation to carry out a pregnancy risk assessment and a failure to carry out such an assessment, proof of detriment to the individual employee is not necessary: O’Neill v Buckinghamshire County Council

[2010] IRLR 384

[166]Although the case of Hardman v Mallon t/a Orchard Lodge Nursing Home

[2002] IRLR 516

suggested that failure to conduct a pregnancy risk assessment would amount to unfavourable treatment because of pregnancy contrary to section 18 Equality Act 2010, irrespective of the mental processes of the decision-maker, the better view is that for pregnancy risk assessment cases, the Tribunal is required to look at the respondent’s mental processes in the usual way to determine whether the claimant pregnancy was the reason for not conducting the risk assessment: Indigo Design Build and Management Limited v Martinez EAT00202/14 and South West Yorkshire Partnership NHS Foundation Trust v Jackson and ors EAT0090/18. Pregnancy / maternity detriments

[167]Under section 47C (1) of the Employment Rights Act 1996 an employee has a right not to be subjected to a detriment by any act or deliberate failure to act done by his employer for a proscribed reason. One of the reasons proscribed in the Maternity and Parental Leave Regulations 1999 is pregnancy. Harassment

[168]Under s 26 Equality Act 2010, a person harasses a claimant if he or she engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of(i) violating the claimant’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding whether conduct has such an effect, each of the following must be taken into account: (a) the claimant’s perception; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect.

[169]By virtue of s 212, conduct which amounts to harassment cannot also be direct discrimination under s 13.

[170]In Richmond Pharmacology Ltd v Dhaliwal

[2012] IRLR 336

, EAT, Underhill J gave this guidance in relation to harassment in the context of a race harassment claim: ‘an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so……..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. While it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other discriminatory grounds) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’

[171]An ‘environment’ may be created by a single incident, provided the effects are of sufficient duration: Weeks v Newham College of Further Education EAT 0630/11. Victimisation

[172]Under s 27 Equality Act 2010 a person victimises another person if they subject that person to a detriment because that person has done a protected act or the person doing the victimising believes that person has done or may do a protected act.

[173]The definition of a protected act includes the making of an allegation that the person subsequently subjecting the claimant to a detriment (or another person) has contravened the Equality Act 2010 or done ‘any other thing for the purpose or in connection with’ the Equality Act.

[174]A detriment is anything which an individual might reasonably consider changed their position for the worse or put them at a disadvantage. It could include a threat which the individual takes seriously and which it is reasonable for them to take seriously. An unjustified sense of grievance alone would not be sufficient to establish detriment: EHRC Employment Code, paras 9.8 and 9.9.

[175]The protected act need not be the only or even the primary cause of the detriment, provided it is a significant factor: Pathan v South London Islamic Centre EAT 0312/13.

[176]A claim for victimisation will fail where there are no clear circumstances from which knowledge of the protected act on the part of the alleged discriminator can properly be inferred: Essex County Council v Jarrett EAT 0045/15. Conclusions First Claim 3 S18 EQA: Pregnancy and Maternity Discrimination (or s13 EQA); Detriment because of her pregnancy/maternity pursuant to s47C ERA and reg.19 of the Maternity & Parental Leave etc Regulations 19993.1 Did the Respondent treat the Claimant as follows:

3.2 Is the Claimant’s complaint of direct discrimination because of pregnancy / maternity properly brought under s18 or 13 EqA?

3.3 For the purposes of s18 EqA, if the Respondent acted in any of those ways, did it amount to unfavourable treatment?

3.5 Was any unfavourable treatment: a) Because of the Claimant’s pregnancy; b) Because she was exercising or seeking to exercise, the right to ordinary or additional maternity leave. Issue: a) On 2 October 2023 the Claimant’s manager, Tracy Dicks, arranging a probation meeting for the Claimant, for the first time; unfavourable treatment. The Respondent denies that it amounts to a detriment and/or to less favourable treatment. it related to concerns about the Claimant’s performance.

Conclusions

[177]The respondent accepted that this was the first probation meeting the claimant had had. We had no evidence to suggest that the respondent had any practice of conducting structured probation meetings for its employees.

[178]The respondent accepted that this was unfavourable treatment and we did not go behind that concession.

[179]We had to consider very carefully whether there was evidence from which we could reasonably conclude that the treatment was materially because of the claimant’s pregnancy / upcoming maternity leave. We noted of course the coincidence in timing. The meeting was organised just after Ms Dicks found out about the claimant’s pregnancy. There is some doubt as to whether Ms Dicks was aware at the time of the meeting that there was an ongoing pregnancy but we consider the position as if she was so aware.

[180]The wider context included the fact that the claimant’s probation period was running out so consideration of the claimant’s position was necessary around this time in any event. The claimant had been on leave earlier. There was also ample evidence that there were deepening concerns being raised by others (who had no knowledge of the claimant’s pregnancy) about the claimant’s performance which justified an extension of the probation period. These were raised with Ms Dicks before she herself had any knowledge of the claimant’s pregnancy. We note in particular the concerns raised by programme managers in September 2023.

[181]It was also relevant to note that the meeting itself was, as the claimant herself accepted, positive and focused on training and supporting the claimant to succeed in her role. We could see no evidence that the meeting was aimed at rushing the claimant out of her employment; the opposite seemed to us to be true.

[182]Subsequent to the meeting, it seemed to us that there was evidence of extensive efforts made by the respondent in terms of training to retain the claimant in post and support her to pass her probation. It seemed to us that the respondent was keen to retain someone in the accommodation role so that Ms Smith was not again burdened by it on top of her other duties.

[183]In all of the circumstances, we did not consider that the burden of proof had shifted. If we were wrong about that, we were satisfied by the respondent’s explanation and that the decision to hold a probation meeting was in no sense influenced by the claimant’s pregnancy or upcoming maternity leave.

[184]We did not uphold this claim. Issue: b) At the probation meeting on 24 October 2023 Ms Dicks failing to address the loss of Claimant’s twin pregnancy, the current state of her pregnancy, or any measures that could be put in place for the Claimant’s health and safety; the purpose of the meeting was solely to discuss performance issues.

[185]Ms Dicks’ evidence as to her reason for not discussing her pregnancy with the claimant was that she would not discuss pregnancy with a staff member unless directly told about it. She said that health and safety measures were matters for HR.

[186]Was the failure to raise these matters or discuss the pregnancy at the probation extension meeting unfavourable treatment / a detriment?

[187]Clearly the meeting was not called to discuss the claimant’s pregnancy and we concluded that, unless she had raised it herself, there were reasons why a manager might be wary about bringing it up in that context, other than asking how the claimant was in general. We did not have evidence as to whether those sort of pleasantries formed part of the meeting. We did not accept that the claimant did herself mention the pregnancy, which was a suggestion she first made rather tentatively in her oral evidence.

[188]We concluded that a reasonable employee would not consider herself to have been put at a disadvantage by a line manager not specifically raising her pregnancy at a meeting convened to consider probation. It was open to the claimant to ask when a pregnancy risk assessment would take place but we do not consider it was incumbent on Ms Dicks to raise the issue at this point herself.

[189]As to motivation, we accepted Ms Dicks’ evidence that it was her practice not to refer to an employee’s pregnancy until it was raised by the employee. In that sense her reasoning was in part because of the claimant’s pregnancy but in circumstances where there was no detriment / unfavourable treatment, we have not upheld this claim. Issue: c) The Respondent extending the Claimant’s probation; the reason was because of performance issues.

[190]We were narrowly persuaded that the extension of probation was a detriment. In some senses being offered a period of time to improve and appropriate training is a benefit, as compared with simply being told that you have failed probation. However, we accepted that an employee who has had her probation extended will reasonably feel at a disadvantage given the ongoing uncertainty about the security of her employment.

[191]In considering whether the burden of proof shifted we took into consideration not only the performance issues which were apparent when Ms Dicks convened the probation meeting but those which became apparent in the period when the claimant was on leave and Ms Smith had to create a new spreadsheet. We took into account again the wider context and the efforts made to train and support the claimant after the meeting. We did not find facts from which we could reasonably conclude that the decision to extend the claimant’s probation was materially because of pregnancy / maternity.

[192]If we were wrong about that, we were satisfied by the respondent’s explanation and that the decision to extend the claimant’s probation was in no sense influenced by the claimant’s pregnancy or upcoming maternity

[193]We did not uphold this claim. Issue: d) Tracy Dicks accusing the Claimant of not being in the office on 26 October 2023 when it was clear, by emails exchanged that day, that the Claimant was in the office; Tracy Dicks was simply relaying a statement of fact to the Claimant.

[194]Ms Dicks accepted that she was in error in thinking the claimant was not in the office. The email she sent reminded the claimant that she needed to keep the respondent informed of her whereabouts. That no doubt could have been irritating to the claimant when she was in fact in the office.

[195]We accepted that Ms Dicks raised the issue because she did not see the claimant in the office when she popped down and because there had been a history of lateness and of the claimant not being where she said she would be. The context was that the claimant’s probation had just been extended. In those circumstances it was not in our view a detriment or unfavourable treatment for Ms Dicks to be alert to this issue and to address it with the claimant promptly. It was not a repeated issue; Ms Dicks’ mistake occurred on one occasion.

[196]We find as a fact that Ms Dicks wrote the email because she made a genuine mistake against the background of concerns about the claimant’s whereabouts. We did not consider we were obliged to resort to the burden of proof but if we had, we considered there were no facts from which we could reasonably conclude the burden had shifted. Had the burden shifted, it follows from what we have said that we were satisfied by Ms Dicks’ explanation and that the reason for the treatment was not materially because of the claimant’s pregnancy or planned exercise of her right to maternity

[197]We did not uphold this claim. Issue: e) Requiring the Claimant to devise her own training plan for her extended probationary period; and not responding to the Claimant’s request for guidance on devising her own training plan; and not offering the Claimant a follow up or 1-2-1 meeting during the extended probationary period; the Respondent therefore not making any proper attempt to assist the Claimant to complete her extended probationary period successfully;

[198]It was clear that the claimant was not required to devise her own training plan. The correspondence showed that she was, understandably, asked to help identify areas where she required more training. Ms Smith then devised what appeared on its face to be sensible and appropriate training, some of which the claimant attended and some of which in the circumstances which arose did not happen. The evidence suggested to us that Ms Smith made significant efforts and was motivated to help the claimant succeed. She made herself available to the claimant.

[199]It is true that Ms Dicks did not schedule a formal follow up meeting during the claimant’s extended probation. However the situation was evolving; the claimant had started but not completed the training when she hurt her foot and had time off work. The claimant was then invited to a meeting to discuss her performance which she never in the events which happened attended.

[200]Overall we were not persuaded that the handling of the training and support provided to the claimant during her extended probation period amounted to a detriment or unfavourable treatment. If we are wrong about that, we could see no facts from which we could reasonably draw an inference that the claimant’s pregnancy or exercise of her right to maternity leave had any influence on the way the extended probationary period was managed. We do not repeat the contextual matters we have set out above but we bore all of these in mind.

[201]We did not uphold this claim. Issue: f) During the extended probationary period, not giving the Claimant any training;

[202]We did not consider that this allegation was made out on the facts. There was training and more was planned. As we have indicated above we did not consider the support and training was qualitatively or quantitatively influenced by the claimant’s pregnancy or exercise of her right to maternity

[203]We did not uphold this claim. Issue: g) After the Claimant informed the Respondent of her pregnancy, her colleague, Leyla, starting to question the Claimant on trivial matters and changing rooms which the Claimant had already mapped, without informing the Claimant; and attending housing buildings when the Claimant was present, when Leyla had not attended those buildings at those times before, apparently tracking the Claimant’s attendance; and involving herself in programmes when Leyla was not looking after the relevant students;

[204]The claimant gave only some very general evidence that she was being ‘tracked by a staff member that lived at [a] site’ and that her work was ‘questioned by everyone even by less senior staff’. Even in that unparticularised form it was not put to the respondent’s witnesses that these events had happened or that they had told staff members about the claimant’s pregnancy or asked them to track or question the claimant.

[205]In those circumstances, we did not find as a fact that these allegations are made out. We did not uphold this claim. Issue: h) After the Claimant informed the Respondent of her pregnancy, her colleague Chris starting to question the Claimant about how she was carrying out tasks - repeatedly questioning the Claimant at meetings and by emails about work the Claimant had done;

[206]The claimant gave no evidence about this matter and did not put it to the respondent’s witnesses.

[207]In those circumstances, we did not find as a fact that these allegations are made out. We did not uphold this claim. Issue: i) After the Claimant informed the Respondent of her pregnancy, her colleague Debbie starting to confirm that the Claimant should undertake tasks outside the Claimant’s job role and when Debbie knew that the Claimant had not been trained to do the tasks, for example creating and itemising budget spreadsheets, instead of Beatrice creating and itemising these;

[208]The claimant gave no evidence about this matter and did not put it to the respondent’s witnesses.

[209]In those circumstances, we did not find as a fact that these allegations are made out. We did not uphold this claim. Issue: j) When the Claimant contacted HR on 15 November 2023 to ask for a pregnancy risk assessment, in the circumstances that her pregnancy was high risk and she had lost her twin pregnancy, HR incorrectly advising the Claimant that she needed a MATB1 form to be completed in order to be provided with a pregnancy risk assessment; The Respondent asserts that it was simply informing the Claimant of a necessary legal requirement.

[210]Ms Garnham was wrong to tell the claimant she needed the MATB1 form before she could conduct a pregnancy risk assessment. The claimant only needed to notify the respondent in writing to trigger the obligation. We considered that the claimant would reasonably have felt put at a disadvantage by the requirement and that it amounted to a detriment and

[211]We considered that this was poor practice and unreasonable of Ms Garnham. The question for us was whether in all the circumstances her delay in getting on with a pregnancy risk assessment was motivated by the claimant’s pregnancy or upcoming maternity leave.

[212]The reasons for Ms Garnham’s delay on the basis of the evidence were twofold. Firstly she had developed a practice for how she dealt with maternity issues which involved dealing with all maternity-related matters at a single meeting once she had received a MATB1 form. We could see how this was efficient for her but it did not allow for cases such as the claimant’s where an earlier risk assessment might be sensible.

[213]The other reason was that Ms Garnham had two roles and at this time was particularly busy with the facilities side of her work and some facilities projects which were ongoing. The respondent had limited HR resource – ie part of the role of a single individual, Ms Garnham.

[214]It seemed to us that the unreasonableness was explained by Ms Garnham’s rather rigid practice and the fact that she was busy and distracted by her other role. It seemed to us that her failure to prioritise the risk assessment was due to these factors. We could not see evidence from which we could reasonably conclude that Ms Garnham’s reason for not giving the claimant some time earlier was connected with pregnancy or maternity leave.

[215]In the circumstances we did not find that the burden of proof shifted. Had it done so, we were satisfied that the reason for the treatment was Ms Garnham’s generally rather mechanistic and unnuanced approach to dealing with maternity meetings and the pressure of her other work.

[216]We did not uphold this claim. Issue: k) HR telling the Claimant on 06 December 2023 that her MATB1 invalid and HR continued to fail to carry out a pregnancy risk assessment; The Respondent asserts that it needed to verify the authenticity of the MATB1.

[217]It was not unreasonable for Ms Garnham to have sought a pin or stamp for the MATB1 form; the issue remained that she should not have required the MATB1 form before conducting a pregnancy risk assessment. By this time the claimant had pointed out the difficulties she was having with travel and had had an accident to her foot.

[218]We considered that Ms Garnham’s continuing failure was worse, ie more unreasonable, than her initial failure. Was there evidence from which we could reasonably conclude that the claimant’s pregnancy was materially the reason for the failure?

[219]We note that there is no evidence that Ms Smith or Ms Dicks played any role in this process or had any influence over what Ms Garnham was doing. The impression we formed was that, HR not being her primary focus and given that she was busy with facilities matters, Ms Garnham simply ploughed on with her usual practice. She did not perceive the importance of engaging with the claimant’s requests for a risk assessment sooner rather than later.

[220]We considered whether there was any inferences be drawn from the fact that at the same time as requesting a valid MATB1 form Ms Garnham was notifying the claimant about the planned capability meeting. However we noted that in doing so Ms Garnham was simply acting on the request of a senior manager.

[221]In all of the circumstances we felt that Ms Garnham’s unreasonableness was explained and did not with the other contextual factors cause the burden of proof to shift. Had it shifted, we were satisfied that the reason for the treatment was not materially the claimant’s pregnancy or planned maternity

[222]We did not uphold this claim. Issue: l) After the Claimant’s midwife contacted the Respondent’s HR on about 6 – 8 December 2023 to confirm the Claimant’s pregnancy, HR failing to contact the Claimant about her pregnancy and failing to offer her a pregnancy risk assessment; The Respondent asserts that there was insufficient opportunity to conduct any risk assessment before the Claimant was signed off sick.

[223]In essence Ms Garnham told us that she had made enquiries of payroll for the purposes of setting up the meeting with the claimant and simply did not get round to holding it before the claimant was signed off sick. There was a limited period when this could have happened but nonetheless in the circumstances we consider that this was a detriment and unfavourable treatment, given what the claimant had previously said about her reasons for needing an assessment.

[224]We considered carefully whether there was any inference to be drawn from the fact that efforts were being made during this period to hold the capability meeting with the claimant. We were told and accepted that there was some urgency because the respondent shut down over Christmas and had a group of students arriving on 29 December 2023. It appeared from the evidence that Ms Garnham was in any event carrying out many of her HR activities in something of a silo without involvement by managers in her activities in relation to the claimant’s pregnancy.

[225]We looked at whether there was any logic in the drawing of an inference that the ongoing failure to conduct a pregnancy risk assessment was part of a plan to drive the claimant out because of her pregnancy / maternity. We did not feel able to draw any such inference. We concluded that Ms Dicks and Ms Smith still genuinely wanted the claimant to succeed in her role. Ms Garnham’s failures were unconnected with the desires of the managers in any event and appeared to us simply to be down to the very limited HR resource the respondent had in place and a failure by Ms Garnham to focus on the issue properly.

[226]We did not find that there were facts which would cause the burden to shift and, had the burden shifted, we concluded that we were satisfied that Ms Garnham was not materially influenced by the claimant’s pregnancy / maternity.

[227]We did not uphold this claim. Issue: m) On 8 December 2023, rather than offering the Claimant a risk assessment, HR inviting the Claimant to attend a capability meeting because she had asked to take maternity leave, or to work from home, from 28 January 2024; The Respondent admits the invitation to a capability meeting occurred, and that it amounts to unfavourable treatment. the trigger for the meeting was the ongoing performance issues (which pre-dated the Claimant’s notice of intention to commence maternity leave).

[228]We considered that the claimant could have reasonably felt put at a disadvantage by the letter which referred to dismissal as a possibility and that the letter was both a detriment and unfavourable treatment.

[229]We can certainly see why, given the timing, the claimant draw an inference that the meeting was connected with her request for early maternity leave alternatively home working.

[230]We accepted Ms Dicks’ evidence that she was not aware of the claimant’s requests at the time. Ms Garnham did not raise them with her.

[231]We also accepted Ms Dicks’ evidence, which was supported by the documentary record, that there were reasons to have growing concerns about the claimant’s capability and to feel that those concerns needed to be addressed more urgently than at the end of the extended probationary period. The claimant had not responded in particular to the requests to put important documents on the shared drive.

[232]In all of those circumstances we did not consider that the burden of proof shifted and we were satisfied that Ms Dicks’ reason for wanting to hold the capability review was her genuine and material concerns about the claimant’s performance.

[233]We did not uphold this claim. Issue: n) The Respondent withdrawing an offer to conduct the capability meeting remotely, by Teams, but instead requiring the Claimant to attend a face to face meeting; The Respondent denies that it related to the Claimant’s pregnancy asserts that both formats were offered to the Claimant because she worked partly remotely, so in the event that the date of the hearing was a “home” date, it would have to be conducted remotely. As the Claimant was not working from home on the day in question, it was not necessary for the hearing to be conducted remotely.

[234]We have noted above that the correspondence certainly suggests the claimant has a choice as to the mode of the meeting. We also accepted that Ms Garnham had intended to convey that the meeting could be held remotely if the claimant happened to be working from home but that her preference was an in person meeting.

[235]We note that the claimant said at the time that she wanted a remote meeting for personal reasons but did not explain what these were. We could understand why she might wish to have a meeting she would no doubt have felt anxious about remotely but she did not give Ms Garnham any specific reason for holding the meeting remotely. It seemed to us that if Ms Garnham had stopped and looked back at her original letter and what it suggested, she might have taken the view that it was sensible to consider holding a remote meeting in the circumstances, particularly given that she was content to hold a remote meeting if it were scheduled for a day the claimant was working from home.

[236]We considered that in the circumstances the claimant could reasonably have felt put at a disadvantage by what seemed to be a change in tack by Ms Garnham and that this was a detriment and unfavourable treatment.

[237]We could not see facts from which we could reasonably conclude that the reason for the treatment was the claimant’s pregnancy / maternity. We do not repeat here our previous findings about Ms Garnham’s practices and her split role. There are good reasons for thinking that holding a meeting of some importance in person has advantages. Ms Garnham was not, as we have found, giving the time and thought to the detail of some HR matters that she could have done at this time, but we accepted that there were reasons for that unconnected with the claimant’s pregnancy / maternity.

[238]We did not uphold this claim. Isssue: o) The Respondent initially giving the Claimant only about 4 days’ notice of the meeting; The Respondent denies that it related to the Claimant’s pregnancy asserts that this is a standard length of notice for such a hearing.

[239]We noted that the respondent’s written policy contained no timescales but that the practice was to give 48 hours notice. The initial notice given to the claimant exceeded that and the meeting was pushed back at the claimant’s request.

[240]We heard evidence as to why the respondent was keen to address the performance issues before the Christmas shutdown.

[241]The claimant no doubt saw this as part of a rush to dismiss her due to her request for maternity leave but we have already found that Ms Dicks had genuine concerns about the claimant’s capability and reasons for wishing to address those quickly together with a genuine desire for the claimant to make a success of her role.

[242]In the circumstances we did not consider the amount of notice given, particularly given that it was extended, amounted to a detriment or unfavourable treatment or that the reason for giving that amount of notice was materially because of the claimant’s pregnancy / request for maternity leave. There were no facts which would reasonably cause the burden to shift.

[243]We did not uphold this claim. Issue: p) As a result, Leyla, Chris, Debbie and HR creating an atmosphere which isolated and pressurised the Claimant;

[244]We heard no specific evidence about the treatment of the claimant by Layla and Chris so any allegations were not made out on the facts. So far as allegations against Ms Smith and Ms Garnham are concerned, these are dealt with under the issues where they are specifically raised. There were no additional matters drawn to our attention under this head.

[245]We did not uphold this claim. Issue: q) By reason of all those matters, the Respondent constructively dismissing the Claimant. The Respondent denies any repudiatory breach of contract, and asserts that the reason for the Claimant’s resignation was to avoid having to attend the capability meeting.

[246]In circumstances where we have not upheld any of the matters said to contribute to the breach of contract, the claimant’s claim for discriminatory constructive dismissal cannot succeed.

[247]It is important to record that having looked at each allegation separately, we stood back and looked at them holistically to see whether in the round we were persuaded that the burden of proof shifted. We did not conclude that it did. The overall picture was one where increasing concerns about the claimant’s perfromance arose at the same time as issues about her pregnancy and impending maternity leave. Failures to handle the latter as well as they could have been handled appeared to us to relate to the specific circumstances of Ms Garnham which we have discussed above.

[248]We can certainly understand why the claimant, who does not appear to have grappled with or accepted the issues that arose with her performance, would draw a connection between the capability processes and her pregnancy. What the picture appeared to us to show however, was that there were challenges to the claimant’s role, in particular with respect to planning and accurate recording, that she had struggled to get to grips with. The respondent had allowed time for her to settle into the role but the difficulties were becoming more apparent and presented a real risk to the respondent.

[249]We did not uphold this claim. Issue: 3.6 For the purposes of s47C ERA detriment complaint, did any of the acts amount to a detriment? 3.7 If so, was the detriment done for a reason which related to pregnancy, childbirth or maternity, as defined in reg 19 Maternity and Parental Leave Regulations 1999?

[250]For the reasons we have set out above, we did not find that any of the detriments we found were related to the claimant’s pregnancy, childbirth or maternity.

[251]We did not uphold these claims. 2 Automatic Unfair dismissal Issue 2.1 Was the Claimant constructively dismissed by the Respondent? The Claimant relies on all the unfavourable acts in the s18 EqA pregnancy/maternity discrimination or s47C Employment Rights Act 1996 (ERA) detriment complaints below. 2.4 If so, did the Claimant resign in response to the breach? The Respondent asserts that the reason for the Claimant’s resignation was to avoid having to attend the capability meeting. 2.5 Did she affirm the breach? 2.6 If the Respondent constructively dismissed the Claimant, what was the reason or principal reason for dismissal one of the reasons in Regulation 3 Maternity and Parental Leave Regulations 1999, so as to be automatically unfair? The Respondent asserts that its actions were not related to pregnancy, for the reasons as set out in paragraph 3.1 below.

[252]We did not find that the claimant was constructively dismissed or that any of the alleged breaches / matters contributing to breach were related to pregnancy, childbirth or maternity for the reasons we have already set out.

[253]We did not uphold these claims. Second Claim 4 Direct discrimination because of Race The Claimant relies on being mixed race. She compares herself with a white comparator.4.1 Did the Respondent treat the Claimant less favourably than it did treat, or would have treated a white comparator by: Issue: a) In about August 2023, when there were complaints about mice and insects in the Tufnell House building, the Respondent failed to support the Claimant by failing to give the Claimant information, which the Respondent had, to enable the Claimant to make complaint to a higher manager because of the seriousness of the situation. The Claimant says that the Respondent would have given a hypothetical white comparator this information.

4.2 If so, has the Claimant shown facts from which the Tribunal could conclude that the less favourable treatment was because of race?

4.3 If so, has the Respondent shown that race was no part of the reason it acted as it did?

[254]Ultimately this claim boiled down to whether Ms Smith knew the name of a senior manager at Tufnell House and failed to provide it to the claimant because of the claimant’s race. The claimant herself seemed uncertain in evidence as to whether she was alleging that Ms Smith’s behaviour was because of the claimant’s race.

[255]Ms Smith told us and we accepted that any contact details she had would have been available on the respondent’s shared drive. We accepted that if she had known the name of a senior manager she would have given the name to the claimant. It was in the respondent’s interests to enable the claimant to do her job effectively and we had a plethora of evidence to show that Ms Smith sought to do just that. She had gone out of her way to recruit the claimant in the first place and had a personal interest in the claimant succeeding in her role so that Ms Smith was able to relinquish accommodation responsibilities.

[256]The claimant did not give persuasive or detailed evidence to suggest that Ms Smith did at the time know the contact details of a more senior manager.

[257]We did not find that there was a detriment because we did not conclude that Ms Smith had information which she did not provide to the claimant. There were no facts at all from which we could reasonably have concluded that Ms Smith treated the claimant differently from the way she would have treated a white employee due to the claimant’s race.

[258]We did not uphold this claim. Issue: b) In about July 2023, when all bedding had gone missing from a room and needed to be replaced within a very short timescale at Hayloft House, the Respondent failed to support the Claimant by not coming to the building to help her make a complaint, reorder items and replace bedding in the rooms. The Claimant says that the Respondent would have given a hypothetical white comparator this support.

[259]It was clear from the evidence that, whilst the claimant had mentioned the issue to Ms Smith, she had not specifically asked for help. We accepted that it was a busy time and that employees were busy across London with tasks. It was not in the respondent’s interest for the students to arrive with the rooms unprepared and, if the claimant had specifically asked Ms Smith, Ms Smtih would have taken action to help. As we have mentioned above, Ms Smith had recruited the claimant and was invested in her success.

[260]We did not consider that this could reasonably be regarded as a detriment. If the claimants had expressly asked for assistance which was available and refused, we would have formed a different view.

[261]It may well be that the claimant, who had not been working very long in the role and may not have encountered this particular problem before, was reticent about explicitly asking for assistance. We could however see no facts at all from which we could reasonably conclude that a white employee would have been treated more favourably.

[262]We did not uphold this claim. Issue: c) In about September 2023 at Vega House, which was managed by black staff, and where minor complaints had been made about cleaning, including smells in corridors and crumbs in the oven (but not mice and vermin), the Respondent told the Claimant to act more aggressively and take photographs of the matters and then removed the Claimant from managing the complaints altogether, when it had taken little or no action in relation to much more serious complaints where buildings were managed by white people. (This allegation is also relied on as race harassment).

[263]The claimant did not give any evidence to the effect that the respondent ‘told the Claimant to act more aggressively and take photographs of the matters and then removed the Claimant from managing the complaints altogether’. Her representative did not cross examine the respondent’s witnesses to that effect. We accordingly could make no findings that those matters occurred.

[264]The evidence that the claimant did give was that ‘a whole complaint was made and compensation was asked for and demands were made from my senior management’. She contrasted what happened at Vega House, which had black management and staff, with what happened at Tufnell House, said by the claimant to have white management, which had vermin issues which the claimant dealt with on behalf of the respondent.

[265]Although the evidence we had was not entirely clear it appeared that the complaints at Vega House were largely dealt with by other managers during a period when the claimant was absent due to miscarriage and then subsequently on annual leave.

[266]In principle we considered that it could be a detriment to a mixed race employee if her employer, to her knowledge, discriminated against black providers of accommodation, although we heard no real argument on the point.

[267]We were satisfied that the reason management dealt relatively seriously with the concerns at Vega House was the reason given in evidence and set out above, essentially to start what was intended to be a long term relationship on the right footing and set expectations. Clearly Ms Smith would have become aware of the race of the management involved at some point during the process of dealing with the complaints but it was not explored with her whether that was before or after a decision was made to raise the complaints with management.

[268]The vermin issues at Tufnell House were dealt with by the claimant herself in any event but we accepted that the respondent would not have considered them worth escalating given the short term relationship with Tufnell House and the nature of the issue, ie periodic recurrence of mouse infestation.

[269]We were satisfied that the respondent pursued the complaints with Vega House for the reasons given. Alternatively we could see no evidence from which we could reasonably conclude that the complaints were pursued with Vega House because of the race of management and staff at Vega House.

[270]We did not uphold this claim. Issue: d) Ignoring the Claimant when she told the Respondent that she was pregnant – the Claimant contends that the Respondent failed to offer her risk assessments when it would have offered a pregnant white employee risk assessment. The Claimant compares herself with hypothetical white comparator who had asked for risk assessments and their pregnancy was high risk.

[271]We have made detailed findings above about the reasons why Ms Garnham failed to conduct a pregnancy risk assessment with the claimant before the claimant resigned from her employment. We had no actual white comparator and no evidence about how long Ms Garnham had taken in the past to organise maternity meeting with white employees. Her evidence was that she followed the same general approach with all employees – waiting until she obtained the MATB1 form to organise a meeting to deal with all of the maternity related issues compendiously. She was not asked in cross examination about any specific individuals.

[272]Ms Smith was asked about her own pregnancies; she thought she had had a risk assessment but could not remember whether that had happened after she provided her MATB1.

[273]We have set out above that although we felt Ms Garnham’s approach was unreasonable in some respects, we considered that there was an explanation for that unreasonableness which was not connected with any protected characteristic of the claimant. We could not see any facts from which we could reasonably conclude that the claimant was treated less favourably in this respect than white employees were or would have been because of her race.

[274]We did not uphold this claim. 5 Race Harassment 5.1 In respect of allegation 4.1(c) above (September 2023 at Vega House), was the act: a) unwanted by the Claimant; and b) related to race; and c) done with the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile or degrading atmosphere? The Respondent asserts that it was unaware of the race, ethnicity or colour of those who manage any of the buildings and accordingly was not capable of having instructed the Claimant to behave differently in connection with accommodation depending on the racial identity of its managers.

[275]We did not conclude that the handling of the Vega House incidents was because of race, nor could we see any relationship with race.

[276]In circumstances where, on the evidence, there did not appear to be anything inappropriate about the handling of the complaints we did not find that the treatment had the proscribed purpose or could reasonably be regarded as having the proscribed effect on the claimant.

[277]We did not uphold this claim. 6 S27 EqA: Victimisation Issue 6.1 Did the claimant do a protected act? The Claimant relies upon commencing ACAS EC conciliation on 1 January 2024.

[278]The respondent accepted that the claimant did a protected act, Issue: 6.2 Did the Respondent subject the claimant to any detriments as follows: a) Backdating SMP to 31 January 2024 and reporting to HMRC that the Claimant had been paid maternity pay, when the Respondent had in fact withheld that maternity pay and did not pay it to the Claimant until 7 March 2024 and 11 March 2024.

[279]The claim ultimately appeared to be a complaint about delay in payment of Statutory Maternity Pay. It was uncontroversial that the first payment of SMP (or all of it if the respondent chose to pay as a lump sum) was due in the claimant’s February pay packet at the end of February 2024.

[280]In fact no payment at all was made until about 5 March and the final amount was not apparently received by the claimant until about 11 March 2024. We concluded that delay in payment of monies owed is a detriment. Issue: b) After conciliation commenced, the Respondent gave the Claimant 3 days to return equipment (when the Claimant was away) and later 2 days, insinuating that the Claimant would steal that equipment.

[281]The respondent first asked for the equipment to be returned within five days, which did not seem to the Tribunal to be unreasonable. When the claimant failed to engage with the request, the respondent’s solicitors became involved. Offers were made to send a courier to collect the equipment in circumstances where the respondent would not have been aware that the claimant was away from her home address.

[282]We did not consider that this was a detriment. The respondent was entitled to the return of the equipment and reasonably escalated its requests when the claimant did not act upon earlier requests. Issue: c) Saying that the Respondent would have to change the locks to their doors if the Claimant did not return their keys; implying, without good reason, that the Claimant would somehow cause damage to the Respondent, when the Respondent knew that the Claimant lived 100 miles from work and was highly unlikely to attend the workplace.

[283]We did not consider it was unreasonable or unusual for an employer to change locks in cases where keys were not returned nor that there was a necessary implication that the claimant would seek to access the premises and cause harm to the respondent. The keys might have been misplaced or lost or and fallen into other hands than the claimant’s. The respondent was entitled to have regard to security of its premises.

[284]We did not consider that the claimant could reasonably have considered that she was put at a disadvantage by this aspect of the correspondence and we did not find that this was a detriment. Issue 6.3 If so, was any detrimental act done because the Claimant did a protected act and/or because the Respondent believed that the Claimant had done, or might do, a protected act? The Respondent does not accept that any of its actions constitute subjecting the Claimant to a detriment. Furthermore, in any event, the Respondent denies that any of its actions were because of the protected act. The Respondent asserts that it was obliged to pay SMP, and to report this to HMRC, as a legal requirement; and that it is standard practice (and entirely reasonable) for the Respondent to take necessary and appropriate steps to ensure the safe and prompt return of its property from an individual who had ceased to be an employee, after termination.

[285]The only matter we considered a detriment was the delay in paying SMP for a short period.

[286]What the respondent had said about this matter in its response form was as follows: It is admitted that the Respondent delayed payment of the Claimant’s SMP for a short period of time. An employer is only obliged to pay SMP on a standard monthly “accrual” basis, paying at the end of each month the amount of SMP that the employee had earned during the previous month. However, at the employer’s discretion, it is permissible to elect instead to make a single lump sum payment of the entire SMP entitlement (the majority of the lump sum payment therefore being an advance payment as compared with the standard accrual basis). It is the Respondent’s case that, at all material times, the parties were in discussion (via ACAS, through the early conciliation process) about a potential negotiated agreement which would have included payment of the SMP due to the Claimant. When those negotiations failed to secure a resolution, the Respondent paid the Claimant her SMP entitlement, choosing (in its discretion) to pay the full entitlement as a lump sum, rather than continuing to make monthly payments for an ongoing period. It is denied that the Respondent’s acts or omissions as described above were because of a protected act, and further and in any event it is denied that the Claimant was subjected to a detriment by those acts or omissions;

[287]We were told about those negotiations to the extent we have recorded in our findings above. The ‘deal’ was that the claimant would receive an ex gratia payment on top of the SMP owed which was to be paid as a lump sum.

[288]We note that the respondent had essentially placed the matter in the hands of its solicitors and Ms Garnham was unable to help us with the way events unfolded. The payment of the SMP had become entangled with the settlement which had broken down at the last minute and also with what appeared to be the claimant’s reluctance to return the respondent’s equipment.

[289]Looking at the documents and the course of events, we considered carefully whether there were facts from which we could reasonably conclude that the respondent was delaying the claimant’s payment because the claimant had made complaints of pregnancy / maternity discrimination. We could not see such facts. It was clear that Ms Garnham had essentially let the solicitors deal with the issues as they thought best and was not directing the approach. It seemed likely that the delay in making the first payment occurred because of the settlement negotiations and their recent breakdown and certain that there was delay in making the second payment because the respondent’s solicitors were withholding the payment as leverage to get the claimant to return the respondent’s equipment. We had no reason at all to think that the withholding of the payment would not have been used as leverage to force the return of the equipment if the claimant had not commenced Early Conciliation and the more natural conclusion was that it would have been.

[290]Had we found the correspondence about return of equipment to be a detriment, we could not have found a relationship with the protected act in circumstances where the claimant had not responded to less charged requests for return of equipment and where the respondent had an obvious financial motivation for seeking return of the equipment.

[291]We did not uphold the victimisation claims. Time limits

[292]In circumstances where we rejected all of the claims on the merits, we did not go on to consider any time issues.