Ms A Williams v Royal Borough of Kensington and Chelsea: 2216092/2023

EMPLOYMENT TRIBUNALS

Case No 2216092/2023

Between

Ms A WilliamsClaimant

Royal Borough of Kensington and ChelseaRespondent

Before

Employment Judge Keogh, Ms S Aslett, Mr P Madelin

In person for claimant

Date 10 February 2025

JUDGMENT

[1]The claimant’s claims are all unsuccessful and are dismissed.

[2]The respondent has applied for its costs of the hearing on 10 February 2025. Any such application should be set out by the respondent in writing within 14 days of the date this judgment is sent to the parties. The claimant must respond to any costs application within 7 days of the date it is sent to her. If the claimant wishes the Tribunal to take into account her means, she must include evidence of her income and savings, outgoings and debts. The application will be determined by

REASONS

[1]This case is about the way the claimant says she was treated during pregnancy in 2021 and maternity leave from March 2022 to March 2023, and her subsequent dismissal in September 2023. The respondent denies that the claimant was discriminated against and contends that the claimant was fairly dismissed for gross misconduct.

[2]We received a bundle of documents and witness statements from the claimant and her mother Ms Mensah, and for the respondent Mr Daniel Ferlance (Head of Housing Solutions), Mr Kojo Sarpong (Director of Housing Needs), Mr Daniel Hawthorn (Executive Director, Housing and Social Investment), and Mr Richard Mills (Housing Mobility Officer). We heard oral evidence from all witnesses except for Mr Mills. We received written submissions from the respondent followed by written submissions from the claimant, and heard oral submissions from both parties.

[3]We have considered all the written and oral evidence and the documentary evidence in the bundle to which we were referred and the submissions made to us. If we do not mention a particular fact or dispute in this judgment, it does not mean we have not taken it into account, only that it is not material to our conclusions. All our findings of fact are made on the balance of probabilities. Our decision was unanimous.

The Hearing

[4]By email date 31 October 2024, two working days before the hearing, the claimant applied to add a further claim of sex discrimination. No detail was given. The respondent objected in writing, indicating that if the claimant pursued the application it would seek wasted costs. The claimant pursued the application and after finalising the List of Issues the application was heard. The claimant sought to rely on a 27 page document which had not been sent to the Tribunal or the respondent in advance of the hearing, which contained further allegations not in the List of Issues which she contended amounted to sex discrimination. She also pursued all allegations in the List of Issues as sex discrimination in the alternative. The respondent indicated it would take more than an hour to read the document and take instructions. The Tribunal decided to hear the application in principle, and if it was not refused then time would be taken to read and understand the document. The application was refused for the reasons given during the hearing.

[5]The claimant then applied for the document to be introduced as additional witness evidence. The respondent objected to this. The application was refused for the reasons given in the hearing.

[6]The claimant then indicated that she had not received the bundle in advance of the hearing, because her internet had not been working. The respondent contended that she had been sent an electronic copy and a hard copy. The claimant contested this, saying she had only received part of the bundle in hard copy. The claimant was provided with a spare copy of the bundle so that she had this available to check during the Tribunal’s reading time.

[7]The respondent stated that the claimant had sent a large volume of documents, and only some were considered relevant, though others were also included in the final bundle (over 300 pages). The parties had been ordered on 28 October 2024 by Employment Judge Adkin to cooperate in finalising the bundle, and the claimant was advised that if there were documents the respondent did not wish to include due to relevance, the claimant should produce an indexed supplementary bundle of such documents. The claimant did not produce a supplemental bundle on the first day of the hearing, but indicated she did have further documents she wished to refer the Tribunal to and had not been able to check whether these had been included in the final bundle. The claimant was therefore ordered that if she wished to apply for further documents to be included she should email a supplemental bundle to the respondent and the Tribunal, and bring two hard copies with her so that the Tribunal could consider the relevance of the documents on the second day.

[8]The claimant emailed the Tribunal with a link to around 90 pages of further documents but only sent this to the respondent after 10am on the second day of the hearing. She brought one hard copy, but this was not indexed and was not in the same order as the documents sent in the link. The claimant had not checked which documents were already in the bundle, despite having been given a spare copy of the bundle for her use. Although the respondent conceded that there were some emails of potential relevance, it would take a considerable time to go through and sort out those which were already in the bundle and those which were not. The Tribunal decided that the claimant had had multiple opportunities to provide further disclosure and was in breach of the Tribunal’s orders the previous day, and it was not proportionate to spend further time out of the hearing to resolve the matter. In the circumstances we refused to allow the further documents to be put before the Tribunal.

[9]The claimant also asked to introduce her 27 page document at the submissions stage. This was refused as the purpose of submissions is not to introduce new evidence. The claimant did attempt to introduce new evidence and issues in her written and oral submissions. We have not taken account of any new facts or issues raised in this way.

[10]As a reasonable adjustment during the hearing the claimant was permitted to use a breast pump, and was given additional breaks as required.

[11]There was insufficient time for the Tribunal to deliberate and judgment to be delivered during the allocated hearing time. A further day for the Tribunal’s deliberations was arranged for 18 November 2024. The claimant requested that judgment in this matter be given orally at a further hearing. This was duly arranged and a fresh notice of hearing sent out to both parties on 2 January 2025 for a hearing on 10 February 2025. The claimant did not attend the hearing and no application to postpone was received. The respondent attended the hearing and was told that the claims had been dismissed. It was the respondent’s preference (as it had been at the previous hearing) to have written reasons rather than hearing the full judgment orally in the absence of the claimant. The Tribunal considered that full written reasons should be sent so that the claimant understood why she had lost her claims. The respondent applied for its costs of the hearing, which is considered had been wasted. The Tribunal declined to hear that application in the claimant’s absence and directions were given for any application to be made in writing and for a decision to be made by Employment Judge Keogh on the papers so that the parties were not put to the expense of a further hearing.

The Issues

[12]A preliminary list of issues was discussed and agreed between the parties at a case management hearing before Employment Judge Anderson on 24 January 2024. At that hearing further information was ordered to be provided by the claimant in relation to one of the allegations. Once received the respondent provided an Amended Response. The List of Issues was not updated, and time was spent at the beginning of the hearing understanding the further information and detailing the dates on which the claimant said she was ‘pestered’ to return to the office. The respondent’s position in relation to wrongful dismissal was also updated. The final list of issues is as follows in relation to liability: Unfair Dismissal

The Issues

[1]Was the reason or principal reason for the dismissal pregnancy, childbirth or maternity? (s.99 ERA 1996)

[2]If not, was the reason or principal reason for the dismissal the claimant’s conduct?

[3]Did the Respondent undertake such investigation as was reasonable in all the circumstances of the case?

[4]Did the Respondent form a belief based upon reasonable grounds? Did the Respondent follow a fair procedure?

[6]Was the decision to dismiss within the range of reasonable responses?

[7]The fact of dismissal and the fact of summary dismissal is admitted.

[8]The respondent accepts that the claimant was entitled to notice pay. Is the Respondent able to prove on the balance of probabilities that the claimant was paid this? Pregnancy / Maternity Discrimination under section 18(2) Equality Act 2010 First Act of Unfavourable Treatment Background to First Act of Unfavourable Treatment

[9]The Claimant says that she had “hyperemesis gravidarum” and Tachycardia, which are both pregnancy related illness.

[10]Because this the Claimant’s movements were restricted, and she was more vulnerable to infections. The Claimant also claims that she was more vulnerable as a pregnant woman per se.

[11]As such, the Claimant needed to work from home and was permitted to do so for a time, under her old manager. However, from October 2021 Claimant was told that she had to return to the office. The Claimant said that she could not do so because of the above, but the Respondent continued to pester the Claimant to come into the office, rather than working from home, until around 2 weeks prior to her due date. The incidents of ‘pestering’ are:(i) 30 September 2021 – Call with Mr Manton

(ii) 4 October 2021 – Meeting with Mr Manton

(iii) 11 October 2021 – Claimant contacts Mr Manton

(iv) 15 October 2021 – Discussions with Mr Manton about away day

(v) 27 October 2021 – Discussion with Mr Manton

(vi) 3 November 2021 – Discussion with Mr Manton

(vii) 8 November 2021 – Discussion with Mr Manton

(viii) 29 November 2021 – One to one meeting held remotely with Mr Manton

(ix) 10 January 2022 – One to one meeting with Mr Manton

(x) 17 January 2022 – One to one meeting with Mr Manton

(xi) 24 January 2022 - One to one meeting with Mr Manton

(xii) 2 February 2022 – Discussion with Mr Manton

[12]The Claimant therefore claims that the first count of unfavourable treatment was the Respondent’s actions of pestering her to come into the office, which would have posed an unsafe environment for her. The Claimant claims that this treatment was unfavourable, and intrinsically linked to her pregnancy. Further or the alternative, the Claimant claims these actions were motivated by the Respondent’s conscious or unconscious prejudices against the claimant’s pregnancy. The Claimant will agree to provide further and better particulars as to those occasions when she was pestered. Issues for the Tribunal to Determine Related to the First Act of

[13]The issues regarding the first act of unfavourable treatment for thea. Was the Claimant in her protected period between 13 June 2021 (when she fell pregnant) and 12 March 2023 (when she returned from maternity leave)?

b. Did the Claimant have pregnancy related illnesses, namely hyperemesis gravidarum and tachycardia?

c. Did this mean that the claimant should have been able to work from home because of her restrictive movement, and was the claimant’s additional vulnerability as a pregnant woman in isolation or coupled with the pregnancy related illnesses, something that made her more vulnerable?

d. Did this mean that working in the office, rather than from home an unsafe environment for the Claimant?

e. Was the Claimant pestered to come into the office and if so, on what occasions?

f. Was the alleged act of pestering the Claimant to return to the office unfavourable treatment?

g. Was this because of pregnancy or pregnancy related illnesses because of the intrinsic connection to the need and the above, or because of prejudice against the claimant because of her pregnancy? Second Act of Unfavourable Treatment Background to Second Act of Unfavourable Treatment

[14]The Claimant Claims that the Respondent failed to undertake a risk assessment of the Claimant’s pregnancy and that this should have been done sometime between around July / August 2021 (when claimant notified the Respondent of her pregnancy) and March 2022 when she went on Maternity Leave.

[15]The need for a pregnancy risk assessment was because of the Claimant’s pregnancy, therefore the failure to do one is is intrinsically linked to the same. Issues for the Tribunal to Determine Related to the Second Act of

[16]The issues regarding the second act of unfavourable treatment for the Tribunal to determine are therefore:a. As referred above, was the Claimant in her protected period between 13 June 2021 (when she fell pregnant) and 12 March 2023 (when she returned from maternity leave)?

b. Did the Respondent undertake a Pregnancy Risk Assessment?

c. Was this unfavourable treatment?

d. Was this treatment because of the Claimant’s pregnancy? Pregnancy and Maternity Discrimination under section 18(4) Third Act of Unfavourable Treatment Background to the Third Act of Unfavourable Treatment

[17]The Respondent refused to allow the Claimant’s flexible working time request, which was required because of her childcare needs. In particular, the Claimant wanted to work to work Monday to Wednesday for 21 hours per week, as opposed to 37 hours Monday to Friday. The Claimant also wanted to continue to work from home.

[18]The Claimant attributes this to her maternity leave because the Respondent’s usual policy is to allow parents with children to have some level of flexibility, and therefore it is inconsistent for the Claimant to have been denied this on her return from Maternity. The Claimant will further argue that there were no good reasons to prevent her from working from home, and inference may be drawn from the Respondent’s general poor attitude toward her pregnancy.

[19]The Claimant was denied her flexible working in April 2022. The Claimant says that she appealed this decision, and the Respondent said that they would review this decision in June 2022. The Claimant awaited the review, but this never materialised, therefore the Claimant claims that this is an ongoing act of discrimination until she was dismissed. Issues for the Tribunal to Determine Related to the Third Act of

[20]The issues regarding the third act of unfavourable treatment for thea. Did the Respondent reject the Claimant’s request for flexible working, as described above, and did it fail to review this request?

b. Is this unfavourable treatment?

c. Was this unfavourable treatment because the claimant took maternity leave? Fourth Act of Unfavourable Treatment Background to the Forth Act of Unfavourable Treatment

[21]The Claimant clams the fourth Act of unfavourable treatment to be her dismissal. It being the Claimant’s case that the sanction of dismissal was unduly harsh and contrary to advice from Daniel Ferlance, Head of Housing and Sarah, HR Assistant, who the Claimant says advised that the most likely outcome would be to repay the phone bill. Issues for the Tribunal to Determine Related to the Third Act of

[22]The issues regarding the fourth act of unfavourable treatment for thea. Did the Respondent dismiss the Claimant?

b. Was this unfavourable treatment?

c. Was this because of the fact that the Claimant took maternity leave? Claims under section 47C Employment Rights Act 1996

[23]In the alternative to the Claims under section 18 Equality Act 2010, are acts 1 – 3 acts of detriment done for a prescribed reason which relates to pregnancy, childbirth or maternity or ordinary, compulsory or additional maternity leave.

[24]The issues are as follows:a. Do acts 1 – 3 above amount to detriment?

b. Were those reasons done for a reason that relates to pregnancy, childbirth or maternity or ordinary or additional maternity leave?

[25]Why do the Claims of unfavourable treatment need to be framed under section 47C ERA 1996, in the alternative to section 18:a. The Claimant says this is because complaints of unfavourable treatment because of pregnancy need to have occurred in the protected period under section 18; and

b. Because section 47C ERA 1996 has a subtle different causal link test.

c. Hence why the acts complained of should be pleaded under both jurisdictions, in the alternative. Time Limits

[26]Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 26th June 2023 may not have been brought in time26.1 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010, and were the detriment complaints brought within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide:

26.2 Was the claim made to the Tribunal within three months allowing for any early conciliation extension of the act to which the complaint relates?

26.3 If not, was there conduct extending over a period?

26.4 In respect of the detriment complaints, was there a series of similar acts or failures to act? 26.4 If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period or the end of a series of act or failures to act?

26.5 If not were the discrimination claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide: 26.5(a) Why were the complaints not made to the Tribunal in time? 26.5(b) In any event, is it just and equitable in all the circumstances to extend time

26.6 Was it reasonably practicable to bring the detriment complaints in time? If not, was the claim brought within such further period as the Tribunal considers reasonable? The Facts 13. The claimant was employed by the respondent as a Housing Solutions Officer from 3 December 2020. She had previously been an agency worker for the respondent. Her contract of employment provided so far as is relevant: “1) NORMAL PLACE OF WORK: Your work base is Kensington Town Hall, Kensington, W8 7NX However, the Council is entitled to require you to work at any establishment administered by The Royal Borough of Kensington and Chelsea on either a temporary or permanent basis. … 7) RECOVERY OF OVERPAYMENT You are advised to check that your pay is correct and in accordance with your contract of employment. If there is a discrepancy in payment you should contact your manager immediately. Whilst every effort is made to ensure that errors do not occur, any mistakes in your pay will be corrected in the following payroll after they are discovered. Recoveries in respect of overpayments will normally be made in the next payroll after we have notified you of the effect of the overpayment. When the overpayment has been made over a period of time, the recovery will be made at the same rate and over the same timescale. The exact arrangements for recouping the money may differ depending upon the amount in question. Deductions in respect of balances of season ticket loan, overtaken holidays, recovery of advances or any other outstanding debt to the Council will be made from your final salary payment, including from overtime, car mileage, other allowances and any expenses payments due when we leave. If there is not enough net pay to cover the whole amount of the balance outstanding, you will be sent an invoice for the remaining monies due. … 8) WORKING HOURS Your normal working hours are 36 hours per week. Unless Flexible (Flexi Time) Working is available for your role, you will be required to work 7 hours and 12 minutes each day, 9.00am to 5.12pm Monday to Friday inclusive with a one-hour meal break daily. From time to time you may be required to work outside your normal working hours in accordance with the needs of the service… … 17) DISCIPLINARY RULES AND PROCEDURE A copy of the Council's disciplinary procedure is enclosed. The person to whom any appeal should be addressed is the Director of your Department or for a copy of the Council's disciplinary procedure please visit the Council's intranet or speak to your manager. 18) GRIEVANCE PROCEDURE If you have any grievance relating to your employment, please refer to the attached Dignity at Work Policy enclosed with this statement or If you have any grievance relating to your employment please visit the Council's intranet or speak to your manager.” 14. Paragraph 14 of the contract provided for the claimant to be given one month’s notice on termination of her employment (given her length of service). 15. The Disciplinary policy provided in relation to the roles and responsibilities of employees: “The Standards of conduct and behaviour expected from employees are set out in the Council's Code of Conduct. All employees should familiarise themselves with their responsibilities under the Code of Conduct. In addition, colleagues are expected to comply with other related policies, procedures and standards applicable to their work.” 16. Under the heading for gross misconduct the policy provided: “This is so serious that an employee can be dismissed for a first offence. Circumstances will affect how serious an incident is. Only an Executive Director or Director can dismiss an employee for gross misconduct.” 17. Examples of gross misconduct included “theft, fraud or dishonesty”; “failure to safeguard RBKC property or serious breach of health and safety rules” and “Misuse of RBKC assets, records or data breaches”. Examples of misconduct included “Failure to observe RBKC policies and procedures, including at departmental level”. 18. The claimant’s role was set out in a job description. This included: “To deliver a customer friendly experience that supports the resolution of customers housing needs at first contact in the Housing Solutions Service. … To ensure that all assessments of customers housing needs are accordance with the Homelessness Act 2017. A high percentage of customers presenting as homeless will be vulnerable and it is essential to assess the customer’s needs accurately in accordance with the Care Act 2014, the Children’s Act 1989 and all relevant housing legislation. … To deal with enquiries, complaints and correspondence from clients and their advocates, including solicitors, councillors, MPs, the ombudsman and other housing providers, in line with the Council’s complaints and enquiries procedure. This may include preparing information to support court cases for which the post-holder is responsible.” 19. Although the claimant asserts that her job description was updated from the document in the bundle, she accepted that these were elements of her role. 20. The claimant’s role therefore included both face to face contact with clients and telephone use to contact clients and to make enquiries. 21. During the pandemic the respondent complied with government restrictions and the claimant’s team were able to work from home. 22. In around June 2021 the claimant became pregnant. She suffered from hyperemesis gravidarum and when she informed her managers, at that time Mr Berrington and Ms Augustine, of the pregnancy she requested to work from home. This request was granted. 23. In July 2021 Covid restrictions were lifted. The respondent introduced a policy at that time focussed on delivering work where communities and residents were and the importance for health and wellbeing of maintaining social connections through regular workplace attendance. Staff would only be permitted to work up to 50% of their hours from home, with staff and managers agreeing a pattern that best suited the needs of the role, ensuring adequate attendance in the workplaces during the week (“the 50/50 policy”). 24. The Housing Solutions team were tasked with ensuring that each part of the Housing solutions team should have a member of staff in the office on a daily basis. We accept Mr Ferlance’s evidence that there was a real need for an in-person service to be offered to the vulnerable members of the community, particularly in light of the aftermath of Grenfell. 25. A rota was devised to ensure that there would be at least one member of staff from the claimant’s team present at the Town Hall during the working day. On 4 August 2021 an email was sent from the claimant’s manager at that time Mr Berrington to the claimant’s team to relay this instruction. The rota was due to start on 16 August 2024. 26. The claimant responded to Mr Berrington the same day: “I have seen the notice to return into the office and as I am on the rota I am very concerned. Although I have now returned back to work from home this does not mean that I am well enough to make the arrangements to come in on any days chosen for me to come into the office. My pregnancy has affected my ability to eat and my strength to go to and from places drastically, as I am suffering from Hyperemesis Gravidarum which means that I am vomiting constantly throughout the day as food will not stay down and I am not even eating the right amount of food to sustain myself because my appetite has been effected and I am losing weight because of this. I will not be able to carry my laptop etc to be able to come in which will be expected of me in order to carry out the tasks needed in KTH and this will be putting my pregnancy at a high risk. If this is insisted of me I will have to go to my doctor for a letter to explain this to you.”

The Facts

[27]A further email was sent to the claimant the following day by Ms Augustine: “Thanks for your email. I think you misunderstood what Duncan actually said. It was not a ‘notice to return to the office’. Folks were asked their preference (if they had any) – you were off at the time. As you can see from the proposed rota not everyone is on – there are reasons for this. If you have not already, then please arrange to have a chat with DB as he suggested at the end of his email.”

[28]A service wide meeting was held on 18 August 2021, led by Mr Ferlance. The presentation included a return to work overview. This had key rules, including that no staff would be permanently working from home. The benefits of being in the workplace and physical interaction were covered. The presentation assured that the respondent had carried out comprehensive risk assessments for all council properties and activities, but that individual risk assessments remained available for any staff who wish to complete one.

[29]During August 2021 the claimant remained working from home and was not put on the rota, however others did go into the office on the rota.

[30]In around October 2021 the claimant’s line management changed to Mr Jack Manton and Ms Fahmida Choudhury. We accept Mr Ferlance’s evidence that Mr Manton was bright, but that this was his first role as a manager for the respondent.

[31]The claimant says that in the following period Mr Manton pestered her to return to the office.

[32]The claimant says in her Further Information document the first call she had with Mr Manton was on 30 September 2021 and there was a meeting on 4 October 2021 and 11 October 2021. She does not refer to any dates in her witness statement around this period however we accept her evidence that in her initial discussions with Mr Manton she informed him of her pregnancy and illness and his position was that she was required to come back to the office in accordance with the 50/50 policy. In the absence of any evidence from Mr Manton we accept the claimant’s evidence that around this time he attempted to convince her to come into the office, saying ‘pregnancy is not an illness’. She refused to do so.

[33]In October 2021 Mr Manton was tasked to organise an away day for his team which everyone was required to attend unless they presented medical evidence that they could not attend or took the date as annual leave.

[34]On 15 October 2021 the claimant emailed Mr Manton in relation to this: “For my own record please can you find out and inform me if everyone who is not on the rota from the team had to provide medical evidence in order to present/satisfy their reasons for not coming in ? (If this is not the case it is evident I am being treated differently than others in the workplace) As I stated in the previous email I would like to know why this particular work function is being treated differently from this instance of returning to the office for one day a week.”

[35]Mr Manton replied the same day: “I am going to respond to both of your recent emails in this one. I wouldn’t want you to feel as if you are being treated differently from anyone else. I’m genuinely sorry if you feel that way. I can confirm that other staff members have requested that they not attend the away day and have been asked to either attend the day or take it off as annual leave. This position has been reviewed with HR, who completed a risk assessment for the event. With regards to the rota, your health will need to be investigated by occupational health. Occupational health will then be the ones to determine whether you should come into the office, and if so, how many days per week. I will ask Duncan to provide me with the medical evidence you have submitted to him in August and assess whether this precludes you from attending the day. In the meantime, if you have anything which you wish to send to me directly, please do. If you wish to make a complaint about this, you are welcome to approach HR directly. I believe the best person to speak to would be Lisa Parkin.”

[36]On the same day he sent an email to Mr Berrington: “Arlita has informed me she sent medical information to you and Veneeze which would preclude her from coming to the away day. She said she sent this in august. If you have anything, can you send it my way. She is aware that she will need a risk assessment from OH for the rota – I will complete the referral with her next week. I have asked that she provide medical information to me by Monday to support not coming in. I will seek guidance from HR on Monday about it.”

[37]On 18 October 2021 the claimant responded to Mr Manton’s email: “Thanks for this email however this does not satisfy my enquiry as I think you have misinterpreted my question. What I would like to know is out of all the persons who were asked when I was away on leave about their ‘preference or concerns’ (as Veneeze stated below) regarding their to the return to the office and have not been placed/put onto the rota, how many were required to attend a risk assessment or provide medical evidence first to satisfy their reasoning for not being on the rota? As this ‘risk assessment’ which I brought to your attention is what you are requiring of me all of a sudden (since it was agreed with previous managers that I do not have to come into KTH), this information is necessary and key to the complaint I would like to make and would prove the differences in requirements of staff. As far as I am aware everyone who had concerns had a conversation with their managers and their wishes were respected. Please advise on the specific amount of people from the Housing Solutions Team that are not on the rota and underwent a risk assessment before their concerns were adhered to.”

[38]She was signed off sick by her GP the same day and sent her GP certificate to Mr Manton.

[39]He replied by email the same day: “Thank you for sending me your sick note. As you have signed in not fit for work, I am going to need you to switch off your laptop and log-out until next week, unless your GP advises otherwise. Please can you also ensure that you log your sick leave on IBC. You are one of two people who are not being asked to come into the office. The other person is also being asked to complete an OH assessment. The occupational health assessment is for the benefit of yourself as the outcome will show how we can assist you throughout your pregnancy. With regards to respecting the wishes and concerns of staff, this represented a previous stance where we did not need a physical presence in the Town Hall. However, this position has changed and will continue to change as we return to our face to face duties with the public. I will be having a conversation with HR about your specific issue and I am happy to address any further questions that you have.”

[40]Straight after this Mr Manton emailed HR: “I was wondering whether we could arrange a meeting on Wednesday to discuss one of my reports, Arlita Williams. She has signed off on sick leave for this week relating to an on-going issue with her pregnancy. She obtained her sick note after me asking for medical evidence regarding her pregnancy as she refused to attend the away day. I have also asked her to complete an assessment with occupational health as we are looking to try and get officers in the office at least one day a week. She has expressed that she would like to submit a complaint about this, presumably that we are discriminating against her. My concern is that she has already disclosed that she has quite bad morning sickness but that she has been well enough to work with this. I suspect that she has gone to the GP in order to get a sick note to avoid coming to the away day. I have attached my email correspondence with her so you can see it. I’d like to speak with you to find out what the next steps are with this. I’ve asked Duncan to attend as he was previously line managing Arlita before I stepped up.”

[41]Mr Manton did not receive a response from HR and so chased up HR on 27 October 2021: “I was wondering whether you got a chance to receive the below email regarding some input from HR. I am also looking to do a stage one interview with the below for absence and could use some guidance on how to handle it. I also have 4 staff members who need to be referred to occupational health for assessments and would like to pick your brain more about the process involved. I have already got the template form, but I would like to know a little more about the process.”

[42]The claimant says in her Further Information document that she had discussions with Mr Manton on 27 October 2021 and 3 November 2021. She has given no evidence about this, however the Tribunal notes that a return to work form was completed on 26 October 2021. This records: “Is on medication for the pregnancy related illness. Still is on medication. JM asked what medication AW was currently taking. AW did not wish to provide this information at this stage as it would be covered by an Occupational Health Assessment (OH). AW noted that she was experiencing other health issues but did not feel comfortable disclosing further medical issues to management. Was informed this is not necessary as the interview relates to the one period of absence. Does not feel like the Council needs to do anything further to assist besides working from home arrangements. Feels fine enough to do work but cannot do it from the office. Agreed OH assessment to be completed and form sent by email. Not fit for work note provided for this absence.”

[43]Mr Manton subsequently emailed the claimant a blank occupational health referral form. The claimant referred to this in text messages to a friend: “He sent me a blank occupational health form yesterday Which clearly states to be filled out by a manager and checked by employee So he won’t be hearing back from me regarding it He’s such a twat Doesn’t know his job”

[44]Neither Mr Manton nor the claimant followed this up and the occupational health referral was never made.

[45]The claimant had further one to one meetings with Mr Manton on 8 and 29 November 2021 and 10, 17 and 24 January 2022. She asserts that in each of these meetings Mr Manton pestered her to return to work. We do not accept the claimant’s account:(i) There is no reference to this is any of the one to one minutes. The claimant says that this was not the purpose of the one to one discussion which was to discuss her caseload, however in the minutes for 10 January 2022 there is a detailed discussion about the claimant’s training needs and how she felt about her workload, when she was thinking about starting maternity leave, and that the claimant said her work was becoming very stressful and felt like this was affecting the pregnancy. We accept Mr Ferlance’s oral evidence that the purpose of the one to ones was to discuss both caseload and the employee’s welfare. If there had been a discussion about the claimant returning to the office we find it is likely to have been recorded;

(ii) If Mr Manton was actively trying to get the claimant back to the office at this time, we find it is likely he would have progressed the occupational health referral, which he did not;

(iii) These dates include the period December 2021 to January 2022 when there was a further period of lockdown and no employees were required to be in the office;

(iv) When the claimant was taken in cross examination to a policy dated 24 January 2022 following lockdown requiring employees to return to the office in accordance with the 50/50 policy from 31 January 2022, which was communicated to staff on 27 January 2022, her response was, “Yes. This is why I was being harassed. This policy right here.” This suggests that the claimant was not asked to return to the office again until this policy was disseminated.

[46]In the email from Mr Manton to his team on 27 January 2022, it was confirmed that staff would be expected back in the office from 31 January 2022 for at least 50% of their hours. In relation to vulnerable staff the following was noted: “Following on from the discussion in our meeting, I have clarified the position with HR. Sadly, this is mandatory and there is no wiggle room. If anyone has a specific vulnerability, please let your line manager know. Your line manager will then complete a COVID-19 risk assessment with you. After the risk assessment, should you still not wish to come into the office because of a vulnerability, the risk assessment will be escalated to Nick Moffatt. At this point, Occupational Health/Human Resources may become involved.”

[47]Around 27 January 2022 there was a discussion between the claimant and Mr Manton which is recorded in notes of his one to one with Ms Choudhury on that date: “[Claimant] had a good conversation with her about returning to office, she does not wish to return to office and will escalate, high risk pregnancy. So so with idea, is apprehensive about becoming a new mother. Maternity start date yet not disclosed.”

[48]On 2 February 2022 the claimant met with Mr Manton and completed a Covid risk assessment. This recorded that the claimant was not happy to return to the office because of her pregnancy. We reject the claimant’s allegation that she was pestered on this day by Mr Manton to return to the office. The purpose of the meeting was to complete the assessment and the following day she was formally permitted to work from home.

[49]On 13 March 2022 the claimant gave birth. Her maternity leave commenced the following day, 14 March 2022.

[50]On 18 March 2022 Mr Manton sent a text message to the claimant asking for a copy of her birth certificate. Ms Mensah sent a text message to him in response which is copied in an email from Mr Manton to Ms Choudhury copied to HR on the same day: “Hi Jack Arlita practically just had her baby and you are requesting a birth certificate. I work for DWP and her employers don’t need no birth certificate all they need is the child’s date of birth, which she has given you. Give me HR’s number and we will contact them. As you asking for things that has nothing to do with you. You harassed her through out her pregnancy and you are continuing to do it, now she is on maternity leave. Give it a rest and don’t go above and beyond your call of duties. No need for it. Now give me HR’s number please. Thanks.”

[51]In his email Mr Manton says to Ms Choudhury that he thinks HR may need to investigate the call of harassment.

[52]In a further email the same day he said he was concerned and upset about the allegations of harassment. Ms Choudhury replied not to take the comments personally and that she was aware he had been very supportive to the claimant.

[53]The claimant accepted in cross examination that she decided not to make a formal grievance or bring a claim at this time. She was recovering from a caesarean section. Her mother told her not to start anything, she needed to work with these people. Ms Mensah’s evidence was that she advised the claimant not to worry about it, she was going on maternity leave for a year and would not have to deal with Mr Manton anymore.

[54]On 13 December 2022 the respondent’s accountant discovered a discrepancy in telephone charges on a telephone they believed belonged to a different employee, and emailed Mr Smith the Finance Business Partner about this. He responded, copying in Mr Ferlance, that the number was a ‘pool’ telephone. Later that day it was found to be the claimant’s work mobile telephone number. Mr Ferlance responded that the claimant was on maternity leave and he would pick up the matter with Ms Choudhury.

[55]On 15 December 2022 Ms Choudhury emailed the claimant in relation to a query she had with her laptop and at the same time asked her to confirm whether the mobile number was hers. The claimant contended in cross examination that she had responded to this email however on searching emails during the course of the hearing neither the claimant nor the respondent could find such a response. We find that she did not respond at this point.

[56]On 1 February 2023 Mr Smith asked Mr Ferlance if the matter had been resolved. Mr Ferlance replied on the same day that the phone had been blocked and that the service manager (Ms Choudhury) was looking into the code of conduct aspect. Ms Choudhury responded that she would refer the matter to HR as the claimant had not responded to her.

[57]On 6 February 2023 the claimant emailed Ms Choudhury asking for HR to get in contact with her regarding her return from maternity leave. Ms Choudhury responded on 10 February 2023 informing her that Mr Manton had left the organisation, and asked again for her to confirm whether the mobile telephone number was hers.

[58]On 13 February 2023 the claimant confirmed by email to Ms Choudhury that the number was hers and she was not sure how long it had been inactive for.

[59]On 17 March 2023 the claimant made a flexible working application seeking to reduce her hours from 36 to 21 hours per week and to work 100% at home as a result of child care and breast feeding. She requested this should start from 3 April 2023, the date she was due to return from maternity leave.

[60]On the same day, Mr Mills emailed Mr Ferlance seeking guidance on the implications of someone full time wanting to go part time as the HR adviser for the team was off work that week.

[61]On 21 March 2023 Mr Mills, the claimant’s new manager, forwarded the application to Ms Choudhury.

[62]On 28 March 2023 Ms Choudhury emailed Mr Mills, advising him he would need to make a decision and that he should liaise with HR in respect of the request to work from home.

[63]On 12 April 2023 Mr Mills held a meeting with the claimant to discuss her request. During this meeting there was a discussion whether the claimant might be able to move to a different team, the backlog team. The claimant contends that during this meeting Mr Mills told her that she could move to the backlog team. We accept the written evidence of Mr Mills that he did not do this as he would not have had authority to do so. His evidence is consistent with the email he sent on 17 April 2023 to the effect that he had promised to look into this.

[64]On 17 April 2023 Mr Ferlance responded to Mr Mills advising that the claimant was able to work three days per week but that 50% of the week should be worked in the office. The other two days would not be paid unless taken as annual leave.

[65]Mr Mills emailed the claimant on the same day: “We discussed your request that was submitted on 17th March. I asked if you wanted to add anything to it and you said you didn’t. To summarise you are asking to reduce your hours from 36 to 21, working Monday to Wednesday from home. During our discussion about this I said I would explore the possibility of you working as part of the backlog team, specifically doing casework. I have discussed this idea with management and the impact that it would have on the Team you have been assigned to. IE Under my management. Due to resources this will not be agreed, so your role would be casework of Part 6 and Part 7 cases and duty. I have spoken to management about your request and have factored in the current demands of the service as a result of the redesign. I will agree to you reducing your days to 3 for the three months and this can be reviewed after this period. In regard to you wanting to work from home these days, unfortunately as the team is front facing , you will need to be at the Town Hall for 50% of your working week, this would mean one week coming in for one day and the next for two days. The days would still be Monday to Wednesday as another member of the Team, Amanda, works Thursdays and Fridays so would be able to duty on the days when our Team has to cover these days. Please also note that in order to retain a full time salary, the two days you aren’t working would need to be taken from your accrued annual leave. This is in line with the HR Policy which says ‘Q. Can I work part-time when I return to work? A. You have the right to return to your job at a reduced number of hours gradually increasing to the contractual total within a maximum period of three months if you wish (refer to the Returning to Work section)…’”

[66]The claimant replied the same day that she intended to appeal. Shortly afterwards she emailed again asking him to schedule a formal meeting with HR, and that she would appeal in writing once she had spoken to them. She then sent another email asking for details of her formal right to appeal.

[67]On 18 April 2023 Mr Mills responded that he would get the details for her and asked if she was happy to take two days annual leave each week so that she was still paid full time hours.

[68]The claimant replied the same day she did not want to do this.

[69]On 24 April 2023 Mr Mills emailed her saying he would check who she needed to lodge the appeal with, and provided her with a copy of the policy and details of the procedure. He informed her deductions would be made to her May salary.

[70]The claimant replied the same day: “I also forgot to ask if HR could please confirm this as the correct course of actions being that my pay is already deducted even though my flexible work request is currently not been accepted? Once HR can speak with me and I have received the necessary information I will be in a position to appeal.”

[71]We do not take this to mean that her pay was actually being deducted at this point, rather that she was responding to Mr Mill’s suggestion that pay would be deducted the following month. In fact her pay not deducted at that time and an overpayment accrued.

[72]Mr Mills replied the same day: “Working 3 days a week for 3 months is allowed as per the policy after returning from Maternity Leave. As I mentioned this will be reviewed after the three months. The issue you are appealing is the need to split your working days 50/50 between work and office. If you aren’t taking leave for the other 2 days then you will be paid for 3 days a week. Does that make sense?”

[73]On 26 April 2023 the claimant emailed Mr Mills again asking who the deciding manager was and whether there had been a discussion with HR before responding to her request, and seeking a copy of the maternity policy he was referring to.

[74]Mr Mills replied the same day attaching a copy of the policy and confirming the decision had been his. He told her if she wished to appeal she should do so to Ms Choudhury, and gave her the name of a contact in HR to discuss the matter with.

[75]The claimant did not subsequently contact HR or lodge an appeal, but did continue to work 100% from home.

[76]In the meantime, on 23 March 2023 phone records were sent to Mr Ferlance.

[77]The claimant says in her witness statement that she was told informally about the allegations by Mr Ferlance on 6 April 2023. This point was not put to Mr Ferlance in cross examination and there was no reference to any such meeting in the documents. We have found generally that the claimant’s recollections are not very clear. For example, she insisted during cross examination that a policy provided in the bundle had been deliberately altered by the respondent from the version used at the disciplinary and had to concede on searching her own emails this was not correct, and she insisted emails had been sent at various points which she could not then locate. In contrast we find Mr Ferlance had good recollections given the time that has passed. If there was such a meeting he is likely to have recalled it and mentioned it in his evidence. We therefore prefer the respondent’s position that this meeting did not occur.

[78]On 13 April 2023 the claimant was sent an invite to an investigation meeting to take place on 21 April 2023, attaching the disciplinary policy. The letter stated in relation to the allegations: “The matter that will be raised relates to potential gross misconduct linked to• Making international calls from the work telephone number …, for non work related matters, without permission for the period of 20 February 2022 until 7 July 2022.

• Making calls from a work telephone number … for non work related matters, without permission whilst on annual leave and maternity leave, between the period of 14 March until 22 September 2022.”

[79]On 17 April 2023 the claimant asked for the meeting to be rearranged as it did not fall on her working days. She also requested that the meeting be on Teams as she was not working in the office.

[80]On 18 April 2023 Mr Ferlance rearranged the meeting for 24 April 2023 and reminded the claimant she was supposed to be working in the office 50% of her time.

[81]She replied the same day to inform him she had difficulties coming into the office because of her breastfeeding. As a result Mr Ferlance arranged the meeting to be on Teams.

[82]The investigation meeting took place on 24 April 2023. Minutes were taken by an HR consultant. The claimant asserts that the minutes of the meeting were inaccurate and missed key information. We prefer the evidence of Mr Ferlance that although not verbatim the minutes are an accurate reflection of the information provided in the meeting. The claimant did not raise any issue with the accuracy of the minutes until 22 August 2023 after the disciplinary hearing had taken place. At no point during the disciplinary process did the claimant provide any details of the information she says was missing or incorrectly recored, she did not raise any appeal on this point, and she has not given any evidence in her witness statement as to what was missing or incorrectly recorded. The only time in evidence she has suggested that other things were said was in cross examination when being challenged on inconsistencies in her account. As discussed above, we found Mr Ferland to be a credible and reliable witness. We also take into account the response given by the HR consultant who took the minutes to questions posed by Mr Sarpong after the disciplinary hearing.

[83]The discussion at the meeting included the following: “AW: Using your phones for work purposes DF: Have you used the work phone for non work related purposes? AW: It has come to my attention that my work phone has been used outside of my knowledge. During my pregnancy a lot was going on and I wasn't at home. A family friend who had access to my phone appears to have used it. DF: is there a pin on your phone? AIM No, I looked into my phone today and noticed there was not one and added one today. AW The person using the phone was masking what they were doing, they are no longer in the country, I've attempted to call them and they are not picking up, as they are not picking up us clear that they know why I am calling. AW When I was on Maternity leave the phone was off and in a draw. DF: Was anyone able to access your laptop?. AW: Technically yes DF: When did you become aware of the calls? AW: When you let me know, you originally raised the matter with me asking me my phone number and now since I have received the Invite letter to this meeting, I'm clearer. DF: What period of time were you away from home? AW: I had hyperemesis and anytime I was unwell I was at my mum's, house; I was so ill, I had my child early and went straight in maternity leave and was at my mums. DF: Is there a name for the person who was using the phone. AW: [name]. DF: Was this individual at your house for the full duration of your maternity leave? AW: They asked to use my personal phone and I let them but am assuming that when I wasn't there, they then went in to use my work phone. DF: How did they get access to your house? AW: I know the person through my husband's family, the person was in the UK from FEB 21- Oct 22, they stayed at my house during this period. DF: During this period of time did you have to use the work phone for yourself? AW: Yes. DF: How can you be certain it was someone else that had used your phone? AW: Because I didn't use the phone, I went on Maternity leave from the 14 March 22 year, with the information you have provided the phone appears to have been used. … DF: Are you aware of the council telephone usage policy/ guidance? AW: No I am not, I was shocked about the costs and not sure of who would be responsible for paying them and how the council will pay them, I am very upset and angry as If it hadn't have been raised with me I'd be none the wiser.”

[84]After the meeting Mr Ferlance made enquiries from IT, who confirmed that the automated security compliance system forced a security lock to be applied to all phones.

[85]Mr Ferlance prepared an investigation report which concluded that there was a case to answer: “5. RECOMMENDATIONS 5.1 Based on the current information I am satisfied that there is a case to answer and this case should proceed to a formal disciplinary hearing. 6. CONCLUSIONS6.1 The role of a Housing Solutions Officer is a key and central role, where personal data from vulnerable members of the community is held on a range of different sources including phones. Information relating to the Council is also held on smart phones. Over the course of at least a tenmonth period, the Councils phone line and data were breached whilst Arlita was responsible for its safekeeping.

6.2 Based on the account presented by Arlita Williams, the phone line and council data has not been protected from the time that she was allocated the work phone. Arlita has confirmed that she was responsible for the phone since 2019 and did not have a security pin until the investigation took place. This indicates that council data has been available to parties outside of the Council for at least three years.

6.3 On the account of Russell Hookway, all smart phones require authentication. If this Is the case, the account provided by Arlita Williams is not plausible. It would indicate that not only has Council property been. knowingly misused, when afforded the opportunity to provide an honest account of events, Arlita Williams has knowingly and willingly misled the investigating officer and the Council. Further enquiries are underway to establish whether international calls and other calls have been made for non-related matters.

6.4 In either scenario the information available does not reflect or indicate that Councils IT and mobile phones have been 'taken care of when employees are in possession of them away from Council buildings'.”

[86]The report was forwarded on 30 May 2023 to Mr Sarpong who had been appointed to hear the disciplinary.

[87]On 7 July 2023 the claimant raised a grievance. This included complaints against Mr Ferlance, Ms Choudhury, Mr Mills and another manager in relation to her flexible working request and alleged bullying, harassment and hostility since her return to work. The grievance was allocated to a senior manager, then had to be reallocated, and was not in fact dealt with before her employment was terminated. Mr Sarpong had sight of the grievance and satisfied himself that there was no overlap with the disciplinary process and it should be treated separately.

[88]On the same day the claimant was signed off sick with anxiety.

[89]On 12 July 2023 the claimant was invited to the disciplinary hearing to take place on 17 July 2023. The allegations set out were as follows: “The purpose of this meeting is to hear fully the following allegations of potential gross misconduct, where it is alleged that you were:-• Making international calls from a work telephone number … without permission between the period of 20 February 2022 until 7 July 2022.

• Making calls from a work telephone number … without permission whilst on annual leave and maternity leave, between the period of 14 March until 22 September 2022.

• Failure to comply with the council’s mobile use policy, namely: - 5.3. The user as designated on the mobile telephone request form, is responsible for all calls made using the assigned mobile telephone or Smartphone. - Failure to agree to the terms set out in this policy shall result in the mobile telephone or Smartphone not being issued; or if already issued, being withdrawn. 12. Loss, Theft, Damage or Unauthorised Use 12.1. The user shall be responsible for the security and safe custody of the mobile telephone or Smartphone. The disciplinary procedure may be invoked and the user held liable: · if the mobile telephone or Smartphone is lost, stolen or damaged, or · for any unauthorised use of the mobile telephone or Smartphone, and this has been caused by any negligent act or omission of the user.”

[90]A disciplinary hearing pack was attached, which included the telephone policy referred to and the investigation meeting minutes and report together with evidence referred to in the report. As discussed above, the claimant conceded that the document referred to during the hearing is the same document that was attached to this email. The contents of the policy are accurately reflected in the invite letter.

[91]On 14 July 2023 the claimant emailed HR to indicate that she was unable to attend as she was signed off sick and it was not appropriate to deal with work related matters until she had returned.

[92]On 19 July 2023 HR emailed the claimant to confirm the hearing had been rearranged for 18 August 2023 (which was after the expiry of her GP certificate) and adjustments could be made for her to participate, holding by Teams rather in person, by written representations, or representation by a trade union representative. It was also offered that she could have a family member or friend to accompany her. She was asked to confirm that she had received the paperwork.

[93]In the same email she was informed which manager was dealing with her grievance.

[94]The claimant did not respond to this email. HR emailed her again on 16 August 2023 asking if she would be attending and whether she had received the paperwork.

[95]The claimant responded the same day confirming she had received paperwork and stating that she would be able to provide any further details via written representation. She did not in this email seek a further postponement or indicate that she was too unwell to attend.

[96]HR emailed the claimant on 18 August 2023: “Thank you for your email confirming receipt of the Hearing pack and notifying that you would prefer to provide your response to the hearing via written representation. We would have strongly liked to have heard from you in-person, and although the hearing will proceed Kojo Sarpong, Director of Housing Needs and Supply has agreed to consider your written submission. Based on your response to questions asked at the preliminary investigation meeting on 24 April 2023, Kojo has raised some questions that he would like addressed (please see attached). Also, as part of your written submission we would like you to put forward your response to the hearing pack provided, including your version of events and any mitigation. The information you provide will be taken into account before any final decision is made, therefore the hearing today will be adjourned following Daniel’s presentation of his report, and we will wait for your written submission, that you should return to me by Tuesday 22 August 5pm. If there are any further questions following receipt of your written submission, we may need to come back to you; equally if you have any questions following receipt of these questions raised or in response to the hear pack, please do not hesitate to contact me.”

[97]The hearing took place on 18 August 2023, chaired by Mr Sarpong. Mr Ferlance attended to present the investigation report and was asked questions. HR was in attendance and took minutes.

[98]The claimant emailed HR on 22 August 2023: “I have read the questions submitted and the copy of the disciplinary hearing bundle. Upon reading the disciplinary hearing bundle I was shocked to note that the discussion I had with Daniel & Farah i.e questions asked of me and the answers which I provided at the preliminary hearing investigation have completely changed on paper. Based on the questions asked and the answers I provided on the day I can see that none of these details were taken down accurately or correctly for the purposes of this disciplinary hearing pack, and have been condensed to the point that it changes the facts given on my account of understanding the situation which was presented to me. Many questions and answers from the preliminary investigation given on the day are completely missing or completely changed from the hearing pack and this is highly concerning as it now appears that the purpose of this disciplinary proceeding is to be purposefully dismissive of the facts which have already been provided to you and are relevant to this case. I am aware although I was not present at the meeting on1.8th August 2023 as it was adjourned you have stated that Daniel would make presentations of his report which I would like to request a copy of considering I will not be part-taking in person. For these reasons I will only feel comfortable discussing this matter via written submissions in the future whereby all parties can keep an accurate record of exactly what was said and who said it - whereby this email evidence no one can tamper with or change it. I can see that when the "disciplinary process' is undergone in person we must rely on someone to 'note take' correctly and in this case was not done at all and the information was taken down incorrectly on purpose and is not something I am willing to risk in the future to ensure that my words and facts are not changed. …”

[99]She did not attach any revised version of the minutes of the investigation meeting.

[100]She attached responses to Mr Sarpong’s questions. This included: 7 Can you confirm if you were still at work as of February 2022 and therefore was still in use of your work phone? If so, how did this person have use of your phone from February 2022 (as indicated in the itemised phone records page 13-32)?• I did inform at the preliminary investigation that my work devices are always left in a draw at home when I am not at work. I also advised clearly that since my pregnancy began when the working day was done, I would go to my mothers’ house every single day because I needed that support. I explained that I did not ever take my work devices off the premises of my home because I worked from home and saw that it was my responsibility to keep the items at home and I also explained that I did not take these items anywhere with me. I was very clear at the preliminary investigation that although I ‘worked from home’ I decided not to live or stay at home outside of work because I needed support from my mother. For this reason I did not mind and allowed someone to stay in my property during my time away which was a reasonable choice at the time. I was clear that I was preparing to welcome my child in my mother’s property – because this is the support I needed and required at that time and therefore this is where I would be or go after work. I was asked for my mothers post code and this was provided at the preliminary investigation. This situation is what presents the opportunity of me not being in the presence of work devices when I am not at home during times when I was not at work. My last working day was Friday 11th March 2022 and I would have still been using my work phone when I was working from home before my maternity leave on 14th March 2022. … 11 You advise that you were not aware of the Council’s telephone usage policy/guidance, but in your employment contract it advises of the Code of Conduct available on the intranet and within that Code of Conduct it advises of Employee’s Commitment and responsibility of complying with all policies and procedures located on the intranet. Therefore, do you accept that it was your responsibility to be aware of the Council’s Mobile Telephone and smartphone Usage Policy? If no, why do you feel it is not your responsibility? Intrinsically after reading the council’s telephone usage policy, I agree with most of the notions stated therein the policy due to my own professional morality. However, I have read my employment contract which states the following: 31)ENCLOSURES:

• Annual Leave Guidelines

• Probation Policy

• Royal Borough of Kensington and Chelsea Disciplinary Code

• Code of Conduct

• Pension Scheme Brief Guide

• New Pension Joiner Option Form

• Dignity at Work To view some key policies and useful pieces of information, please visit the Councils Intranet Site or contact your line manager. My employment contract does not specify the importance or responsibility of familiarising oneself with any one specific policy but rather suggests where they are accessible to read. My employment contract also does not specify the need to acknowledge and accept liabilities brought by responsibilities assigned to me as an employee through RBKC’S policy. My line managers and RBKC as my employers do not prompt us as employees to keep ‘up to date’ and read or refresh our memory on any of the policies or to read them in any instance. Responsibility is the state of having duty, to do whatever it takes to complete the task that is assigned – the mobile phone/telephone usage policy sent to me during this disciplinary process is not signed or dated by myself so I cannot confirm I have agreed to liabilities through the responsibilities suggested in the policy. I cannot confirm that RBKC as my employer has ever forced me to read or acknowledge this particular policy until this time. Intrinsically property assigned to me is taken care of by me and was done to the best of my ability and knowledge at the time. Overall I cannot identify anywhere in my employment contract where I have accepted liability from assigned responsibilities from my employer arising from the policies of RBKC - which I have not read or signed agreement and therefore do not feel it was my responsibility to be aware of this policy at such a vulnerable period of my life and was not my priority at the time. … For a housing officer to work efficiently, it is not always of benefit to the Council to turn work phones straight off as soon as you have ended the shift. Again intrinsically, I agree that when I am at home, I should put my property in a place where I can assume that it will be safe and not misused and this was in fact the case when I was at home working – my work phone was not being misused in my presence or to my knowledge. Due to the nature of my work and new living arrangements at the time I did not expect the need to have a discussion with the person staying at my home about not touching any of my work or personal property – because I felt this was obvious. However, I was on a period of long continuous leave from work and was also reasonably away from my work station/home since March 2022 when I gave birth and is when majority of when these international calls were made. My line manager Jack Manton asked me on multiple occasions to confirm how long I would be gone on maternity leave before I gave birth and I informed him on at least 3 occasions that it would be for a period of 52 weeks and therefore I would have also assumed that my manager’s/employer was going to block all of my work devices as they had done with my work laptop. At no time at all did I believe that my phone was an exception and that my phone number was not going to be blocked because RBKC was made aware on 14th March 2022 that I had given birth and therefore now all parties were aware my work phone was not going to be in use for at least 1 year. I do believe that if my work phone was blocked when it was reported that I had given birth on 14th March 2022 this would have minimised further misuse of my work phone since what looks like from the itemised bill began in February 2022 when I was heavily pregnant and about to be on leave. Also, if this matter was brought to my attention at the time when it was happening RBKC would have allowed me the opportunity to know that I needed to have the work phone on my personal possession to stop it from being abused because I wasn’t aware because I wasn’t at work - and I find this to be negligent on behalf of RBKC not to inform or enquire with me before I returned from maternity leave in April 2023. As my maternity period started the relativity of RBKC policies also minimised as I was now ready to engage in a big new phase and chapter of my life (which employers should encourage time off to engage employees’ staff moral by encouraging a balanced life whilst not constantly thinking about work) which brought new daily and on-going responsibilities for another being. I believe at the time I informed RBKC I had given birth it was my managers duty to have arranged and requested for my laptop, work phone and employment pass to be returned to them to continue to reserve a safe guarded environment for all parties involved. This would ensure deterrence of any misuse or possibility of employees being in possession of work items when they are knowingly not going to be needing it and may not return to employment after these kinds of long continuous periods of leave. This should be a procedure for maternity leavers, and I do find it negligent on RBKC’S behalf for making me aware of this after the fact and not when I could have prevented it had I been contacted directly and made aware of the situation before I returned from maternity leave.”

[101]The claimant sent a further email the same day: “I also wanted to add further to this in regards to the disciplinary hearing letters which have been sent out to me on multiple occasions during this process. I note that on all of the preliminary/disciplinary hearing letters the allegations made against me state happened whilst being on a period of annual leave and maternity leave. Daniel has confirmed he has checked this and confirms there was no period of annual leave taken. For this reason I asked for the letter/s to be corrected and sent out with the correct information and letters with the incorrect information to be deleted and removed from on my file/this proceeding and was told this was to be corrected for the purposes of the disciplinary hearing bundle to no avail. The disciplinary bundle I have been sent has the same Incorrect recorded copy of this letter stating I have been on a period of annual leave and I would like this to be changed on every single letter which has been sent to me and is saved to my file with such incorrect details. Incorrect information and details start to completely change the facts and narratives of real time events and for the purposes of serious proceedings such as a disciplinary documenting and fact finding for this type of proceeding accurately should be of the utmost importance to everybody involved - especially when putting forward allegations to an accused party. Please may I have a copy of the new disciplinary, hearing letter with correct Information and a copy of Daniels report.”

[102]On receipt, Mr Sarpong sent further questions to Mr Ferlance and the HR consultant who took the minutes on 23 August 2023.

[103]Mr Ferlance responded the same day. In relation to the allegation that the investigation minutes were inaccurate he confirmed that there had been no substantive changes to the document, and attached the initial notes and tracked changes. It was confirmed by Counsel during the course of the hearing that the only changes to the document were typographical errors. The claimant did not ask us to look at the tracked changes version.

[104]Mr Ferlance attached a copy of the claimant’s maternity leave, annual leave and sickness absence records.

[105]The HR consultant also responded the same day. She stated that she took the minutes and typed as the claimant spoke, she didn’t say much and kept her answers short so it was easy to capture information.

[106]On 24 August 2023 HR emailed the claimant attaching the notes of the hearing and inviting her to make further submissions if she wished to do so.

[107]The did not provide anything further in writing or otherwise.

[108]Mr Sarpong sent his outcome letter to the claimant on 6 September 2023. This concluded: “After hearing and considering all of the evidence, I also have some concerns about the length of time it took to identify that your work phone was being misused. These concerns will need to be addressed. However, these concerns do not take away from my finding and concerns regarding your conduct as an officer with longstanding experience of 5 years in the role. I find your failure to adhere to secure your work phone is a fundamental error and there are inconsistencies in your account which brings into question the future trust and confidence in your ability to protect and not misuse the Council’s property. You claimed that the phone was only used when you were not aware and/or not working. However, having reviewed the telephone records, the first international call to a number in the Caribbean ending in 153, was on Friday 28th January 2022 at 14.56. There are also calls to the Caribbean to a number ending in 687 on the 3rd March 2022 at 15.55 and the 9th March 2022 at 16.51, which features regularly on the phone record. I have checked our HR records for all of those dates, which show that you were working on those days, as you were not on annual leave and you were not on sickness absence. By your own admission, the phone was in your possession when you were at work, which means that you either used the work phone to call the Caribbean without permission at those times during work hours, or you permitted someone else to use your work phone to make those calls. In the alternative, you did not secure your work phone, which has confidential client information, whilst working and is a clear General Data Protection Breach, which you have either had online training for or have been prompted to do so via e-mail. I have considered your claim that your work contract does not direct you to the Telephone Usage Policy and that your manager never referred you to it. I do not accept that this is a valid reason for you to not be fully aware of the policy and to secure the phone. As you quoted in your response to the investigation questions, your employment contract lists some policies that were included for you to be aware of including the Council’s Code of conduct, Part 7 Section 4 Employees General Conduct states as follows: 4.3 All employees must comply with all policies, standards and supporting guidelines, working procedures and safety instructions relevant to their job. For example, the Council operates policies covering the following key matters, Discipline, Grievance, Bullying and harassment, attendance at work, Data security, Performance; and 4.4 This list is not exhaustive. All policies can be found on the intranet and are updated regularly. But policies and procedures are not of contractual force. Employees have a responsibility to ensure that they understand the Council’s key policies and the duties it places upon them. I am satisfied that the above advises of your responsibility to familiarise yourself with all of the Council’s policies which would include the Council’s Telephone Usage Policy. As a result, I am satisfied that you were fully aware of the policy and if you were not aware, it was your responsibility to have familiarised yourself with the policy and/or spoken to your line manager for clarification. After hearing and reading all of the evidence submitted, I conclude that that the allegations of gross misconduct brought against you are upheld and I have decided to dismiss you from your post with immediate effect, as the trust and confidence in you as an officer has been breached.”

[109]It was confirmed the claimant’s employment would terminate with immediate effect from 6 September 2023 and she would receive one month’s pay in lieu of notice. She was advised of her right of appeal.

[110]The respondent’s Transactional HR and Pay Supervisor calculated that on termination there was an overpayment which needed to be recouped of £1,750.45. On examination of the claimant’s payslips we accept this was deducted from her final salary. The payslips are complex and it is readily understandable that the claimant was confused as to what was deducted and when.

[111]On 15 September 2023 the claimant appealed the decision to dismiss her. In her appeal letter the claimant expressed her apologies for the circumstances leading to her termination. She noted the difficulties she had during this period, being heavily pregnant and her first child dealing with medical complications, and asserted that her managers had been persistent in asking her to come into the office causing her anxiety. She offered to repay the cost of the calls. She had reflected on her responsibilities and had refreshed herself on policies and procedures. She noted that she had been using her work equipment with no misuse and was trusted by managers to use her phone on her return to work. She accepted she was liable for the calls made and the cost.

[112]There is no mention in the appeal letter of the investigation minutes and no further substantive information about the phone usage beyond mitigating factors.

[113]On 25 September 2023 the claimant contacted ACAS, and on 27 September 2023 she received an early conciliation certificate.

[114]On 25 October 2023 the claimant presented her claim.

[115]On 15 November 2023 the claimant was invited to an appeal hearing to take place on 29 November 2023, chaired by Mr Hawthorn.

[116]The claimant did not respond to this letter to confirm her attendance. The day before and the day of the hearing the claimant was in hospital. She telephoned on the day to confirm she could not attend. She did not request a postponement.

[117]This was relayed to Mr Hawthorn who decided to go ahead with the hearing. Mr Sarpong attended to summarise his decision making process. No formal minutes of the hearing were taken however Mr Hawthorn took notes.

[118]Mr Hawthorn sent his outcome letter on 7 December 2023, confirming that the appeal had not been upheld. The Law Pregnancy and Maternity discrimination/detriment

The Law

[119]Section 18 Equality Act 2010 provides: “… (2) A person(a) (A) discriminates against a woman if, in or after the protected period in relation to a pregnancy of hers, A treats her unfavourably— (a) because of the pregnancy, or

(b) because of illness suffered by her in that protected period as a result of the pregnancy. … (4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave or a right to equivalent maternity leave. … (6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy …”

[120]In respect of time limits, section 123 Equality Act 2010 provides: (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[121]Section 47C Employment Rights Act 1996 provides: “(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason. (2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to—(a) pregnancy, childbirth or maternity, …

(b) ordinary, compulsory or additional maternity leave ...”

[122]Regulation 19 of the Maternity and Parental Leave etc Regulations 1999 provides: “(1) An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2). (2) The reasons referred to in paragraph (1) are that the employee–(a) is pregnant;

(b) has given birth to a child; … (d) took, sought to take or availed herself of the benefits of, ordinary maternity leave or additional maternity leave; … (5) Paragraph (2)(b) only applies where the act or failure to act takes place during the employee's ordinary or additional maternity leave period. (6) For the purpose of paragraph(5)– (a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period, and (b) a failure to act is to be treated as done when it was decided on. (7) For the purposes of paragraph (6), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure act– (a) when he does an act inconsistent with doing the failed act, or (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it were to be done.”

[123]In respect of time limits and the burden of proof, section 48 Employment Rights Act 1996 provides:(1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section …47C(1)…

(2) On a complaint under subsection (1), … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

(3) An employment tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures , the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer … shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. (4A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3)(a).”

[124]In determining whether there is conduct extending over a period, there must first be consideration of whether each act or failure to act relied upon was discriminatory. If an act is not discriminatory it cannot be part of the conduct extending over a period (South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

[125]The focus of the Tribunal should then be on the substance of the complaint that the employer was responsible for an ongoing situation or a continuing state of affairs, in which an employee was treated in a discriminatory manner. The question is whether there is an act extending over a period as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed (Hendricks v Commissioner of Police of the Metropolis

[2003] ICR 530

[126]One relevant but not conclusive factor is whether the same or different individuals are involved in the incidents (Aziz v FDA

[2010] EWCA Civ 304

, CA).

[127]A one-off decision may be a continuing act if it has continuing consequences (Barclays Bank Plc v Kapur

[1991] 2 AC 355

[128]In considering whether it is just and equitable to extend time under section 123 Equality Act 2010, the Tribunal should consider all the relevant circumstances of the case including the length of and reasons for the delay in presenting the claim, the impact of the delay on the cogency of the evidence and likely prejudice. The relevance of these factors depends on the facts of the individual case (Adedeji v university Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

; London Borough of Southwark v Afolabi

[2003] ICR 800

, CA).

[129]In relation to reasonable practicability under section 48 Employment Rights Act 1996, the Tribunal was referred to Palmer v Southend-on-Sea Borough Council

[1984] ICR 372

, CA and Schultz v Esso Petroleum Co Ltd

[1999] IRLR 488

, CA. Unfair dismissal

[130]Section 99 Employment Rights Act 1996 provides:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— (a) the reason or principal reason for the dismissal is of a prescribed kind, or (b) the dismissal takes place in prescribed circumstances.

(2) In this section “prescribed” means prescribed by regulations made by the Secretary of State.

(3) A reason or set of circumstances prescribed under this section must relate to— (a) pregnancy, childbirth or maternity, … (b) ordinary, compulsory or additional maternity leave, …. and it may also relate to redundancy or other factors. (5) Regulations under this section may— (a) make different provision for different cases or circumstances; (b) apply any enactment, in such circumstances as may be specified and subject to any conditions specified, in relation to persons regarded as unfairly dismissed by reason of this section.”

[131]Regulation 20 of the Maternity and Parental Leave etc Regulations 1999 provides: “(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if–(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), … … (3) The kinds of reason referred to in paragraph (1) and (2) are reasons connected with– (a) the pregnancy of the employee;

(b) the fact that the employee has given birth to a child; … (d) the fact that she took, sought to take or availed herself of the benefits of, ordinary maternity leave or additional maternity leave; … (4) Paragraphs (1)(b) and (3)(b) only apply where the dismissal ends the employee's ordinary or additional maternity leave period. …”

[132]Section 98 Employment Rights Sct 1998 provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. … (6) Subsection (4) is subject to— (a) sections 98A to 107 of this Act ..”

[133]The first task for the Tribunal is to determine the reason for the dismissal. If the reason is one which falls within section 99, the dismissal will be automatically unfair.

[134]It is for the employer to show a potentially fair reason for dismissal (Kuzel v Roche Products Ltd

[2008] EWCA Civ 380

). The burden of proof in respect of the consideration of reasonableness is neutral.

[135]In relation to pregnancy and maternity, the Tribunal should consider the necessary causal connection particularly carefully. In Brown v Stockton on Tees Borough Council

[1989] AC 20

, the House of Lords considered such a claim in a redundancy situation. It was noted that the section which was then in force had to be seen as part of social legislation passed for the specific protection of women and to put them on an equal footing with men. However not all dismissals of a pregnant woman would be unfair: “It does not of course follow that, if a pregnant woman is dismissed as redundant, the effect of section 60 is to deem her dismissal to be unfair in all circumstances. There will be many dismissals on grounds of redundancy which cannot be said to be connected with her pregnancy; as for example if she is made redundant because her job ceased to exist and there is no possibility of offering alternative employment, or if she is selected for dismissal in a redundancy situation by the application of a criterion such as last in first out.”

[136]The reason for the dismissal must be clearly identified. Where there are multiple reasons which have some bearing on the decision to dismiss, a Tribunal must determine which was the principal reason for the dismissal (Accattatis v Fortuna Group (London) Ltd

[2024] EAT 25

[137]If the respondent shows that the reason for the dismissal is conduct, a potentially fair reason for dismissal, the Tribunal will go on to determine fairness.

[138]In British Home Stores v Burchell

[1980] ICR 303

it was held that where there is a dismissal for misconduct, the Tribunal will have to consider:(i) Whether the employer belief in the guilt of the employee of that misconduct at the time of dismissal;

(ii) If so, whether the employer had reasonable grounds on which to sustain that belief;

(iii) Whether at the stage at which he formed the belief on those grounds, or at any rate the final stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

[139]The Tribunal must consider whether the employer’s decision and the process in reaching that decision fell within a range of reasonable responses open to a reasonable employer on the facts of the particular case, and a Tribunal must not substitute its decision for that of the employer (Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

; Foley v Post Office

[2000] ICR 1283

). There is a band of reasonable responses within which one employer might reasonably take one view and another might reasonably take a different view (British Leyland (UK) Ltd v Swift

[1981] IRLR 91

; Trust Houses Forte Leisure Ltd v Aquilar

[1976] IRLR 251

). It is necessary to apply objective standards to all aspects of the question whether the employee has been fairly and reasonably dismissed, and this applies equally to the investigation. (Polkey v AE Dayton Services Ltd

[1988] ICR 142

; Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

[140]In relation to procedural fairness, the Tribunal must assess whether any procedural defects, taken either on their own or accumulatively, will mean that the decision was unfair. It was noted in Sharkey v Lloyds Bank Plc

UKEATS/0005/15/SM

that it will almost inevitably be the case that in any alleged unfair dismissal a claimant will be able to identify a flaw, small or large, in the employer’s process. It will be and is for the Tribunal to evaluate whether that is so significant as to amount to unfairness, any prospect of there having been a dismissal in any event being a matter for compensation and not going to the fairness of the dismissal itself.

[141]A claim for wrongful dismissal is one of breach of contract relating to the notice period which would normally be given and paid on termination of the contract of employment. In this case it is conceded the claimant was entitled to be paid one month’s notice pay.

Conclusions

[142]The Tribunal considered it convenient to start with the complaints brought under sections 18(2), 18(4) and 47C Equality Act 2010 in relation to the first three allegations of unfavourable treatment. We then go on to consider all issues in relation to the dismissal and finally wrongful dismissal. First act of unfavourable treatment – pestering the claimant to come into the office 30 September 2021, 4 October 2021, 11 October 2021

[143]We have found that the claimant was asked around this period by Mr Manton to come back into the office to work in accordance with the 50/50 policy. This was during her protected period and at a time when she had pregnancy related illness, namely hyperemesis gravidarum and tachycardia. This made her more vulnerable and at that point she was unable to work in the office due to her illness.

[144]This was right at the beginning of Mr Manton’s management of the claimant and the team. We find that at this point Mr Manton was a relatively inexperienced manager. He had been tasked to get people back into the office in accordance with the 50/50 policy. The claimant made him aware of her pregnancy related illness and his approach at this point was to ask her to come in anyway, including using the comment ‘Pregnancy is not an illness’. We find this approach, knowing of the claimant’s illness, was unfavourable treatment and a detriment.

[145]We have considered carefully whether the reason for this treatment was because of pregnancy or pregnancy related illness (section 18(2)). The claimant accepted in cross examination that she was not being asked to come into the office because she was pregnant, but because of the instructions from senior management to enforce the 50/50 policy. We find that Mr Manton took the approach he did because of his inexperience, and not because the claimant was pregnant or had pregnancy related illness, or because of any prejudice held towards her because of her pregnancy. While accommodations ought to have been made for the claimant even at this early stage of his management, the fact that they were not and she was asked to return was not because she was pregnant or had pregnancy related illness.

[146]For the same reason, we do not find that the detrimental treatment was because the claimant was pregnant so as to fall under section 47C. 15 October 2021

[147]This complaint relates to discussions about attendance at an away day, which everyone was required to attend unless they provided medical evidence or took the day as annual leave. We find that Mr Manton did not pester the claimant to attend this day. He assured her in his email everyone was being treated in the same way, and he would ask Mr Berrington for the medical evidence supplied to him so he could assess it. He provided the claimant details of who to speak to in HR if she wished to make a complaint, and sent an email on the same day to Mr Berrington seeking the medical information. In the same correspondence he discusses the need for the claimant to have an occupational health assessment to determine whether she was fit to be included in the rota.

[148]In the circumstances we find there was no unfavourable treatment or detriment in relation to this date. The approach taken by Mr Manton as recorded in the email correspondence was reasonable. 27 October 2021

[149]As at 27 October 2021 Mr Manton had received the claimant’s GP certificate of 18 October 2021 and had advised her to switch off her laptop and log out for the week, and had emailed HR to organise a meeting to discuss the claimant’s situation, noting that he had asked her to compete an occupational health assessment. On 26 October 2021 he completed a return to work form with her, which also noted an occupational health assessment needed to be completed and a form had been sent. On 27 October 2021 he was chasing up HR as he hadn’t heard back. The claimant has given no evidence about any discussion on 27 October 2021 in which she says she was pestered to return to the office. From the correspondence we find that at this point Mr Manton cannot have been pestering her to return because he was actively trying to arrange an occupational health assessment and organise a meeting with HR to discuss the situation. These were reasonable steps and do not amount to pestering.

[150]In the circumstances we find there was no unfavourable treatment or detriment in relation to this date. 3 November 2021

[151]The claimant has not given any evidence about pestering of her on this date. The only thing which was happening around this time was that Mr Manton sent her a blank occupational health form to complete, which we find he ought to have completed himself and discussed with her instead. This does not amount to pestering. The claimant herself decided not to return the form or engage further with Mr Manton in relation to it, as discussed in her text messages, saying ‘So he won’t be hearing back from me regarding it’.

[152]While neither the claimant or Mr Manton followed up the referral, nor did Mr Manton require the claimant to come back to the office. She remained working from home.

[153]In the circumstances we find there was no unfavourable treatment or detriment in relation to this date. 8 November 2021 to 24 January 2022

[154]The claimant asserts that in discussions and meetings between these dates Mr Manton pestered her to return to the office. We have rejected this as a matter of fact for the reasons set out in paragraph 44 above.

[155]In the circumstances we find there was no unfavourable treatment or detriment in relation to this date. 2 February 2022

[156]On this date the claimant met with Mr Manton and they completed a Covid risk assessment together, the conclusion of which was that it was confirmed the following day that the claimant should work from home. We have rejected the claimant’s suggestion that she was pestered to return to the office on this date. The purpose of the meeting was to determine her fitness to do so.

[157]In the circumstances we find there was no unfavourable treatment or detriment in relation to this date. Second act of unfavourable treatment – Failure to complete a risk assessment

[158]The claimant did not have a formal risk assessment in relation to her pregnancy until the Covid risk assessment on 2 February 2022. However she must have had an informal assessment of her pregnancy related illness by Mr Berrington as he permitted her to remain working from home.

[159]We have therefore considered whether there ought to have been a risk assessment between around October 2021 when Mr Manton took over line management and 2 February 2022. We find that it was fairly early on in Mr Manton’s management of the claimant by at least 18 October 2021 that he was trying to organise an occupational health assessment and to meet with HR to discuss. It was the claimant herself who stalled that process by refusing to engage when a blank form was sent to her rather than a completed form for her review. While Mr Manton ought to have followed this up at the time, there was no unfavourable treatment or detriment of the claimant at this point because she was not required to come into the office despite no assessment having been completed.

[160]In any event, even though there was a delay in a risk assessment being completed, we find that the reason for this was Mr Manton’s inexperience and lack of any response from HR not because of the claimant’s pregnancy or pregnancy related illness. When asked about the reason for Mr Mills’ decision in cross examination the claimant said that he was told to make the decision, and she did not know why they (the respondent) did what they did. She did not connect the decision with her maternity leave. Third act of unfavourable treatment – flexible working request

[161]The claimant made a flexible working request on 17 March 2023, seeking to reduce her hours and work 100% from home. This was dealt with by the claimant’s new line manager, Mr Mills.

[162]There was an initial discussion about whether the claimant could be moved to the backlog team, and we have accepted Mr Mills’ evidence that he did not promise this, and as recorded in his email of 17 April 2023 the respondent could not accommodate this due to resources.

[163]The claimant was permitted to reduce her hours for at least 3 months, to be reviewed, under a different policy (the respondent’s Maternity/Family Friendly policy). We reject the claimant’s suggestion that she would have been required to return to full hours after three months. The clear evidence is that there would have been a review at that time, which could have gone either way.

[164]The claimant was not permitted to work 100% from home. The reason for this was because of the resources of the respondent who needed her within her team, and the nature of her role, which required face to face interaction.

[165]In the circumstances there was a partial refusal to grant her request, in relation to home working.

[166]We find that this refusal was not unfavourable treatment within the meaning of section 18(4), or a detriment within the meaning of section 47C. The claimant was contractually required to work from the office. The respondent complied with its legal obligations to fairly consider her request. Moreover, the requirement to return to the office was never enforced.

[167]In any event, we find that the refusal of home working was nothing to do with the fact that the claimant had taken maternity leave. The reason was to do with the respondent’s resources and operational needs in providing a face to face service for the community. Dismissal

[168]We find a dismissal constitutes unfavourable treatment for the purposes of section 18(4) Equality Act 2010.

[169]We have considered what the reason for dismissal was, and:(i) Whether it was because of the fact that the claimant took maternity leave (section 18(4));

(ii) Whether the reason or principal reason for the dismissal was pregnancy, childbirth or maternity (section 99 Employment Rights Act 1996);

(iii) Alternatively, whether it was the claimant’s conduct (a potentially fair reason under section 98 Employment Rights Act 1996).

[170]We have no hesitation in finding that the reason for the dismissal was conduct and nothing to do with the fact that the claimant took maternity leave or anything else to do with her pregnancy, childbirth or maternity:(i) The discrepancy in relation to telephone use was discovered independently, and it was not known at first that it was the claimant’s telephone. The sum in question was substantial and this needed to be investigated. This suggests there was no ulterior motive connected to the claimant herself for the investigation to be commenced.

(ii) The fact that the majority of calls were made while the claimant was on maternity leave does not mean investigation was because of her taking maternity leave. An investigation would have been required whenever the calls took place and the claimant has not demonstrated any causal connection.

(iii) The investigation was conducted by Mr Ferlance who was essentially independent. The only relevant interaction he had in respect of the claimant previously was giving advice to more junior management in relation to the claimant’s flexible working request. There is no evidence at all to suggest that he had some ulterior motive in investigating the matter, and making a recommendation that there was a case to answer.

(iv) The decision to dismiss was taken by Mr Sarpong, who did not know the claimant. There is no reason why he would have made a decision for any reason connected to pregnancy, childbirth, maternity or maternity leave and despite being given the opportunity to do so the claimant did not put this to him. He gave clear evidence why he considered there was misconduct.

(v) Similarly Mr Hawthorn did not know the claimant, and also gave clear evidence why he considered there was misconduct.

(vi) The claimant has not provided any evidence at all to suggest any connection between dismissal and her pregnancy, childbirth, maternity or taking maternity leave, except for bare assertions that this ‘contributed’ to the termination. In her written submissions the claimant suggested for the first time that the disciplinary process was only used to advance a termination due to the fact that she would not come into the office. This was not put to any of the respondent’s witnesses and there is no evidence to support such a suggestion.

[171]Therefore the complaints in relation to dismissal under section 18(4) Equality Act 2010 and section 99 Employment Rights Act 1996 fail. We go on to consider ordinary unfair dismissal.

[172]The only point raised by the claimant in relation to the investigation is her assertion that the minutes from the investigation meeting on 24 April 2023 were inaccurate and had relevant responses from her missing. We have already found that the minutes were an accurate reflection of the information provided in the meeting (paragraph 81 above). In any event the claimant had an opportunity to provide written representations to Mr Sarpong. If there were any inaccuracies she could have corrected them.

[173]We find that a reasonable investigation was conducted by the respondent. Before Mr Ferlance’s involvement informal investigations took place as to the discrepancy uncovered which led to the discovery that the telephone number belonged to the claimant’s work telephone. Once the investigation formally commenced, Mr Ferlance took appropriate steps to obtain telephone records, made enquiries with IT, and conducted a full interview with the claimant. The claimant elected not to attend the disciplinary hearing whether in person or remotely, however did have the opportunity to answer written questions which were taken into account by Mr Sarpong before making his decision. Mr Sarpong also followed up points with Mr Ferlance and the investigation meeting minute taker.

[174]We find that as decision maker Mr Sarpong had a reasonable belief that the claimant had committed misconduct, and that this belief was based on reasonable grounds:(i) A very substantial sum of public money had been spent on telephone calls to the Caribbean on the claimant’s work telephone, and this was confirmed by detailed telephone records;

(ii) The evidence gathered during the investigation and disciplinary hearing process reasonably suggested that the telephone had been used during some periods when the claimant ought to have been working, and in any event she had not secured the telephone which allowed it to be misused and also posed a potential data protection breach.

[175]In relation to the procedure overall, the points raised by the claimant are:(i) That she was not suspended, and was permitted to keep using the telephone during the course of the investigation;

(ii) Delay;

(iii) Not postponing meetings.

[176]Unusually in this case the claimant appears to suggest that she ought to have been suspended from work, or prevented from using the telephone pending the disciplinary hearing. We accept Mr Ferlance’s evidence to the effect that it would have amounted to a pre-judgment of the matter to stop the claimant using the telephone, which was essential to her role, before proper enquiries had been made as to whether there had been any misconduct or not. Nor does this suggest that the respondent was not taking the matter seriously. We accept Mr Ferlance’s evidence that at the outset of the investigation all that was known was that there an irregularity. Diligent enquiries had to be made before conclusions were made as to the severity of the matter.

[177]We do not find that the length of time it took to conclude the disciplinary process was unfair. Initial investigations took some time to discover who the telephone belonged to, which was in part due to the claimant’s lack of response to Ms Choudhury. Mr Ferlance acted promptly in seeking to gather information such as phone records and making enquiries of IT. The investigation meeting was postponed at the claimant’s request, as was the disciplinary hearing in order to give her an opportunity to attend. The claimant has not identified any unfairness arising from any delay.

[178]In her submissions the claimant suggested that meetings should have been postponed for her to attend. The only hearing which went ahead when scheduled and without her was the appeal hearing. The claimant had been asked to confirm her attendance and did not confirm she wasn’t going to attend until the day of the hearing, even though she had been admitted to hospital the day before. She did not contact the HR representatives involved in setting up the hearing, rather telephoned the Housing desk for them to pass on the message that she was not attending. She did not ask for a postponement. We accept Mr Hawthorn’s evidence that given the claimant had not attended the disciplinary hearing and had not sought a postponement he made a judgment call to go ahead which was not unreasonable in the circumstances.

[179]We therefore find the procedure adopted by the respondent was fair.

[180]We take all these factors into account in considering whether, overall, the dismissal was in a band of reasonable responses open to the respondent. The claimant contends that the sanction was too severe because she had been told by Mr Ferlance that she would only need to pay back the money. This point was not put to Mr Ferlance and we find it unlikely he would have said anything about potential sanction given that it was not within his remit to make that decision.

[181]We go on to consider whether the sanction was unreasonable given Mr Sarpong’s findings and the mitigating factors put forward by the claimant. We remind ourselves we cannot substitute our own decision for that of the respondent, and are considering whether the sanction of dismissal fell in a band of reasonable responses. We find that it did:(i) While a breach of policy fell under misconduct rather than gross misconduct in the respondent’s disciplinary code, Mr Sarpong has given clear and credible reasons why he considered the matter to be gross misconduct, including the amount in question, the long period over which misuse occurred and the seriousness of the security issues this posed. Mr Hawthorn equally gave this point careful consideration.

(ii) We find that the respondent properly considered the mitigating factors put forward by the claimant. However there were also aggravating factors they were entitled to take into account, including the discrepancies in the claimant’s account (in particular in relation to whether there was a passcode on the device) and the claimant’s lack of remorse and assertion that the respondent was at fault. We reject the claimant’s assertion that she showed remorse during the investigation meeting. This is not borne out by the minutes of the meeting, which we have found to be a fair reflection of what was said, and is also contrary to her subsequent answers to Mr Sarpong’s questions in which she twice suggests that the respondent was negligent. It is notable that at the disciplinary hearing stage there was no apology from the claimant and no offer to repay any sums. Given the claimant’s attitude at this stage it was not unreasonable for Mr Sarpong to conclude that there had been a breach of trust and confidence in the claimant.

[182]In the circumstances we find that there was a sufficient reason to dismiss and dismissal fell well within the band of reasonable responses open to the respondent. The claim of ordinary unfair dismissal fails.

[183]Having examined the claimant’s pay slips we are satisfied that the claimant was paid her one month’s notice pay. The deduction in her final salary was in respect of overpayment of salary, the claimant having moved to part time hours. The pay slips are somewhat confusing however the claimant accepted in cross examination that she had been paid her notice pay in full. There is no claim for unlawful deductions from wages in respect of any discrepancy in the overpayment deduction.

Summary

[184]In the circumstances all of the claimant’s complaints are dismissed. We did not therefore need to consider jurisdiction.

Summary

[1]The claimant’s application is brought pursuant to Rule 69 of the Employment Tribunal Procedure Rules 2024. (The claimant also refers to this document being an “appeal”, however an application for reconsideration under Rule 69 is a different process to an appeal to the Employment Appeal Tribunal.)

[2]Under Rule 70 the Tribunal must consider any application made under Rule 69. If the Tribunal considers there is no reasonable prospect of the judgment being varied or revoked, the application must be refused and the Tribunal must inform the parties of the reason for refusal.

[3]There is no reasonable prospect of the original decision being varied or revoked, and the application is therefore refused for the reasons set out below. Unfair dismissal

[4]The claimant suggests that the Tribunal found that her dismissal was justified on the basis of a loss of trust and confidence. The Tribunal in fact found that the claimant was dismissed by reason of her conduct (Judgment paragraph 170). The Tribunal did take into account the respondent’s position, as set out in the dismissal letter, that trust and confidence with the claimant had been breached in considering whether dismissal was within a band of reasonable responses, concluding that given the claimant’s attitude it was not unreasonable for Mr Sarpong to reach this conclusion (Judgment paragraph 181(ii)). There is an implied term of trust and confidence between employer and employee in any contract of employment and it was legitimate for the Tribunal to consider this factor.

[5]The Tribunal gave specific consideration to the claimant’s allegation of delay in relation to the fairness of the dismissal (Judgment paragraph 177).

[6]It was not submitted by the claimant that the real reason for dismissal was that the respondent was frustrated by the fact that she had accumulated leave and could be paid for several months while only working three days per week, nor was this issue raised in evidence or put to the respondent’s witnesses. Pregnancy discrimination

[7]The Tribunal gave specific consideration to whether there was any pregnancy discrimination in relation to pressuring her to return to the office (Judgment paragraphs 143 to 157) and in denying her flexible maternity leave (Judgment paragraphs 161 to 167), which it rejected. The claimant has not identified any specific error in the Tribunal’s conclusions. Overpayment issue

[8]It was not submitted by the claimant that the recovery of an overpayment of wages was done deliberately to claw back funds for the phone misuse or to offset money spent from the housing budget or that this had any connection to the claimant’s dismissal, nor was this issue raised in evidence or put to the respondent’s witnesses. Sex discrimination

[9]The claimant’s application that her sex discrimination claim should be ‘reheard’ is misconceived. No such claim was considered by the Tribunal. The Tribunal rejected the claimant’s application to add a new claim of sex discrimination made two working days before the hearing (see summary at Judgment paragraph 4). Procedural irregularities and misinterpretations of evidence

[10]The matter of the bundle was thoroughly considered both before and at the hearing and multiple opportunities given for the claimant to produce any evidence which she contended was missing from the bundle in an appropriate manner (see summary at Judgment paragraphs 7 to 8).

[11]The claimant has not identified what contradictions are said to have arisen between the response and amended response. If there were such contradictions it would have been incumbent on the claimant to challenge them in evidence and to make submissions on the point.

[12]It is the task of the Tribunal to make findings of fact on the balance of probabilities, namely whether it is more likely than not that something occurred, which is why the judgment uses language as to what ‘probably’ happened and what was ‘likely’ to have happened.

[13]It was not part of the pleaded case nor in the List of Issues for the Tribunal to consider that the treatment of the claimant’s grievance was an act of discrimination. New evidence

[14]The claimant has not identified any particular item of evidence which has not been properly disclosed by the respondent or which was not reasonably available to be presented and considered at the hearing.