Mrs R M Parekh v Loft Rooms.co.uk. Ltd, T/a Morespace: 2216954/2024

EMPLOYMENT TRIBUNALS

Case No 2216954/2024

Between

Mrs R M ParekhClaimant

Loft Rooms.co.uk. Ltd, T/a MorespaceRespondent

Before

Employment Judge Goodman

Date 10 February 2025

REASONS

[1]By a judgement sent to the parties on 18th February 2025, the claimant succeeded in a claim that she had been dismissed by reason of pregnancy. The respondent has by letter of 18 February applied for reconsideration of the award for injury to feelings in the sum of £10,000, relying on the recently decided EAT case, Eddie Stobart Ltd v Ms. Caitlin Graham

2025 EAT 14

Relevant Law

[2]Under the Employment Tribunal Rules of Procedure 2024, a request for reconsideration may be made within 14 days of the judgment being sent to the parties. By rule 68 a Tribunal “may reconsider any judgment where it is necessary in the interest of justice to do so”, and upon reconsideration the decision may be confirmed varied or revoked.

[3]Rule 70(2) provides that If the Tribunal considers that 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 refusal”. Otherwise it is to be decided, with or without a hearing, by the Tribunal that heard it.

[4]Under the 2004 rules prescribed grounds were set out, plus a generic “interests of justice” provision, which was to be construed as being of the same type as the other grounds, which were that a party did not receive notice of the hearing, or the decision was made in the absence of a party, or that new evidence had become available since the hearing, provided that its existence could not have been reasonably known of or foreseen at the time. Ladd v Marshall (1954) EWCA Civ 1 set out the principles on which evidence could be admitted after the judgment: it could not have been obtained with reasonable diligence before the hearing; it would have an important influence on the outcome; the evidence was apparently credible. The Employment Appeal Tribunal confirmed in Outasight VB Ltd v Brown

UKEAT/0253/14/LA

that the 2013 rules did not broaden the scope of the grounds for reconsideration (formerly called a review); the ET will generally apply the Ladd v Marshall criteria, although there is a residual discretion to permit further evidence not strictly meeting those criteria to be adduced if for a particular reason it is in the interests of justice to do so.

Findings of Fact

[5]When making decisions about claims the tribunal must have regard to the overriding objective in rule 2 of the 2013 regulations, to deal with cases fairly and justly, which includes ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, and seeking expense.

[6]Reconsideration is not an opportunity to re argue points made at the hearing. That is a public interest in the finality of litigation. Discussion and Conclusion

[7]The tribunal made its award for injury to feelings for detriment and for the dismissal. The award is towards the higher end of the lower band of Vento awards. This reflects that it was a short process and a one-off decision, but also the degree of upset experienced, not just because it was a dismissal, always a blow, but because it appeared to be (and in our finding was) discriminatory. It was unexpected, and the only feature indicating why the review period had been cut short was the pregnancy. In doing so the tribunal took account of our finding that she would have been dismissed later because her ability did not meet the respondent’s expectation. The difference is that had her performance been assessed over the full period previously indicated to her, the claimant would not have experienced the same deep sense of unfairness. She would have been given a proper opportunity to prove herself, instead of about a week. She would have had feedback. She would have had time to prepare for the worst. She would not have been left with the injury of knowing that the blow feel because she was expecting a baby. These were the reasons for the panel deciding to make an award at this level.

[8]The tribunal was aware of the case, although it was not specifically cited - it had been decided on 29th January 2025, and circulated by Daniel Barnett on 3rd of February 2025. In Ms Graham’s case, the claim of unfair dismissal did not succeed. That was held relevant to the award of injury to feelings. Her only success was in showing there was discrimination in the “inadequate response to grievance”, for which an award of £2,000 were substituted.

[9]This is not an example of a case or hearing where reconsideration is appropriate. It is not shown that the respondent did not have an opportunity to be heard, or that there was some relevant evidence which could not have been before the tribunal. Approved by CERTIFICATE OF CORRECTION The Employment Tribunal Procedure Rules 2024 Under Rule 67, the REASONS (not corrected)

[1]This claim is about whether the claimant was dismissed for pregnancy. The respondent employer contends she was dismissed for poor performance.

Evidence

[2]We heard live evidence from the following witnesses: Rohansi Parekh, the claimant Stuart Ellerby, respondent’s director, in charge of operations Nicola Pistella, architectural technician Daniela Oberman, architectural technician Elanangai Rajkumar, IT consultant

[3]There was a file of relevant documents of 168 pages.

[4]A list of the legal issues was drawn up at a case management hearing and is appended to these reasons. Findings of Fact

[5]The Respondent is a small firm of 23 employees with two directors. Their business is providing extensions for private houses. This involves preparing plans, obtaining planning permission, and project management. Recruitment

[6]The claimant was recruited as an architectural technician in May 2023 after the respondent had interviewed three candidates. The job description covered site visits and measured surveys, day-to-day management of planning drawings, interfacing with local authorities, and liaising with clients, contractors and structural engineers to ensure the project ran smoothly. The ideal candidate was to have experience of working with AutoCAD 2D, good knowledge of producing planning and construction drawings, fluent English, excellent communication skills, interest in gaining and supplementing experience in producing plans for domestic loft, ground floor and basement projects, and an understanding of building regulation requirements, planning policy and party wall requirements. This was advertised at a salary range of £25,000 to £35,000 per annum.

[7]The claimant’s salary was £21,000 per annum. The respondent hoped to train her up to replace one of the two architectural technicians in the current team. They were Nicola Pistella and Daniela Oberman.

[8]The claimant's CV describes her as a highly skilled architect with over two years of experience in India working on a range of residential, commercial, and hospitality projects. She had qualified as a Computer Aided Civil and Architectural Draughtsman in 2010, followed by three years study for a Diploma in Architectural Assistantship at Government Polytechnic for Girls in Ahmedabad, then a Bachelor of Architecture degree at Maharaja Syajiraorao University, Vadodara, to April 2018. She had then worked as a junior architect for a private company in Ahmedabad, preparing drawings for interior projects, before moving to the UK, where she took a foundation course at the University of Huddersfield. This included learning English, as until then her language was Gujarati. That was followed by one year master’s in Advanced Architectural Design at Huddersfield University, to July 2022. The Claimant’s Work

[9]Working for the respondent was her first job in the UK. She has explained how it involved more technical knowledge than she had experienced up till then. In India she had principally worked as an architectural draughtsman, where the job consisted of small details drafting, and assembling the file of drawings for submission to the municipal office for permission to build.

[10]Initially she was given technical information and remotely supervised by Claudia Manconi, who lives in Italy. In August Ms Manconi began maternity leave. The claimant’s work was then supervised by the existing architectural technicians, Nico Pistola and Daniela Oberman. Nico Pistola explained how to download details from architectural libraries, took her on site for surveys, answered questions and corrected her work. She was given a soft start with easy jobs.

[11]By September 2023 he was concerned that she did not seem to know even the basics of the job, such that he questioned the authenticity of her CV. He was concerned that her drafting skills were adequate, but took a long time. Of more concern was that she did not compare the drawing she had drafted with the photograph of the building, to check the drawing for accuracy. He recommended she always print off the drawing because it was easier to check that way. He was concerned that she did not seem to be able to match plan, section and elevation so that differences would appear on each. He taught her to get the measurements on the elevation out of reach by counting the bricks on the photograph to check the accuracy of the drawing. For chimneys, he taught her to measure the chimney breast within the house In order to estimate the size of the chimney on the roof. They worked in adjacent desks, so much of the discussion was oral, but there is a documentary example on the 18th September, where he corrected a drawing by asking her to add the gutters to a dormer window, and again that day, to point out that solar panels had been missed out, and windows and a garage mirrored (i.e. appeared in reverse to their actual location). He explained this was a mistake easily corrected by checking the drawing against the photograph. There are also some messages from 11th of October about improving survey skills by matching her survey measurements with the drawings.

[12]He was also concerned about the tone of her emails to clients. Most of their clients are private individuals, not construction industry professionals. They needed more explanation than the claimant was giving when she sent them the plans.

[13]At an open house project in October 2023, the operations director, Stuart Ellerby, asked how the claimant was doing. Thinking it over, Nicola Pistola thought it would be wise to have a sit down with the claimant to discuss her need to make progress – a wake up call, and he sent a message to Stuart Ellerby on 19 October asking if he and Daniela could have a chat with him about the claimant. The result was a meeting with her on 27th of October 2023.

[14]In the meantime we can see Nicola Pistola’s comments on some plans the climate had sent him on the 17th October. She had missed out a lavatory under the stairs, changed its door, and missed some cupboards, misdescribed a dining room as a study, ignored the proposed removal of the chimney breast on the sitting room, first floor bedroom and loft above it. She had omitted the back loft from the existing loft drawing, although he had photographed it for her on her phone. She had ignored the architect’s plans showing the back bedroom on the 1st floor having a velux window for a vaulted ceiling, or velux windows in the new loft bedroom and bathroom. The existing front elevation had been described as a rear elevation. On the proposed rear elevation she had not picked up the explanation on site that the extension doors would be double French doors, not bifold doors, or the position of the windows. On the side elevation she had removed the back chimney, when it should be the front chimney. The client had already picked up some of these errors and omissions, and the claimant had made some changes, but still showed the errors he picked up.

[15]At the progress meeting on 27 October weak points in her work were discussed. Tey are listed in an e-mail sent to the claimant on 7th November. She should pay more attention to her drawings of the existing building, for example, by comparison with photographs, to add foundations to ground floor extensions, and print off drawings to make it easier to check her own work. They expected her to produce correct drawings of the existing building; they could work together on the drawings of the proposal. Apart from these points her CAD skills were good. She was always to include an outline sketch when sending projects out. Saying she did not have time for this was not good enough. She must be more confident in asking questions of consultants, she should arrange site visits with the project manager, (another employee of the company), and make a site visit each week. She should be proactive about this. There were several suggestions of what she could do: she must always speak to the consultant who had sold the project to the customer before doing the survey. She was to improve her written and spoken English-Nico would blind copy her his emails to clients, so she had a model. Most of her emails were polite enough, the grammar needed improvement, but one had sounded very passive aggressive. There were other details about picking up errors in client drawings, counts needs, and to and speaking to the consultant if she was unsure. She must attend company events- forgetting about them was “unprofessional and disrespectful”. When people gave advice she must listen and take notes.

[16]The e-mail concludes by noting that she was taking an extended holiday over Christmas, finishing work for the year on 9th December 2023. “Please do take on the above and look to improve and work hard before your break”. For her return in January they hoped to see an improvement. “We will sit down again for a review at the end of February/ early March to assess progress”. Pregnancy

[17]A few days later, on the 12th November, the claimant informed Stuart Ellerby, that she was expecting a baby. She was then at the end of the first trimester. He asked her to confirm this with the accountant. She did that on 20 November.

[18]The witness Elanangai Rajkumar, an employed IT consultant, gave evidence that she had taken maternity leave after two years employment and that the respondent was very cooperative with childcare responsibilities. She adds that there were six other staff who had taken maternity leave and benefit from flexible working arrangements.

[19]On 23rd November 2023 Stuart Ellerby emailed the claimant: “it will be three weeks tomorrow since our last meeting where we discussed key areas that we need to see improvement on”. She was invited to a meeting the following afternoon to discuss progress and identify areas where she needed help to support performance.

[20]On 28 November Stuart Ellerby followed up this “informal meeting”. Before she went on leave for a month they really needed to see active improvement and progress on 6 items, condensed from the original 13. She had to improve drafting of existing and proposed plans so that they were accurate, and she should not rely on Daniela and Nico to correct errors. She must actively communicate with the consultant before the full measured survey. She must improve her spoken English so that she could be the primary contact with the client, rather than passing telephone calls on to Nico or Daniela. She must improve emails with clients - one sentence saying “see attached revised plans” was not enough. She must be proactive, take notes when advice was given, and actively arrange site meetings on local projects with the project manager, as discussed.

[21]There was time before her annual leave to see improvement, he said, and “we can sit down at the end of January to assess progress”. He hoped they could be “getting you up to the required level the real require for your job role”.

[22]There were 8 working days between this email and the start of the claimant’s leave. The claimant sent her colleagues a handover list, as requested, of the projects she had been working on. She listed six with “pre-starts” where the project had been approved by the council, seven where drawings awaited council approval, three where a response was awaited from a client, and one where the drawing had been outsourced. Mr Ellerby responded to this that they looked forward to seeing an improvement in her performance on her return. She should let him know how they could offer further support “in getting to the level we require for your role”. Dismissal

[23]The claimant returned to work in the new year on the 5th of January 2024. On 9th of January she sent in the midwife certificate confirming her delivery date. On the 12th of January she was called to a meeting to discuss her performance. Both directors were there, Adrian Newman and Stuart Ellerby. There was no discussion. Instead Mr Newman signed and handed over a letter terminating her employment with immediate effect. When she asked why, she was told they had received a complaint from a client and that her performance had not met expectations. The letter does not say why she is being dismissed, just that she was entitled only to one week's notice, but they would pay her to the end of the month and they would be happy to provide a reference.

[24]The complaint relates to a site visit made by the claimant to take measurements and photographs. The client’s sister objected in no uncertain terms to her having taken photographs of the interior, as they showed children, and gave rise to safeguarding concerns. In addition, she had commented on the NHS logo shown on the client's computer screen that this was the hospital where she was going to have her baby. Mr Ellerby said that objections to photographs were not unusual; an experienced technician would have known to take down pictures of children before taking them. They did consider it unprofessional to read private material on a screen, let alone comment on it. The complaint however was not the reason for dismissal.

[25]Asked by the claimant for the reasons why she had been dismissed. Stuart Ellerby wrote on 17 January. He mentioned a meeting on the 3rd of November (agreed in fact to be the meeting on the 27th October): “to discuss key areas where you needed to improve on with immediate effect and prior to going on leave”. The 13 point improvement areas were not “onerous”. The follow up meeting had led to six improvement areas to get to her working at the level required, “however, these were expected to be improved on with immediate effect and prior to going on annual leave in December”. Unfortunately that had not been achieved. The work she had been doing was critical to the business. The company could no longer accept errors which required further work to rectify.

[26]The claimant responded that she had been told that a further review would be conducted at the end of February or in early March, which was then revised to the end of January. She had made efforts. She had not be given any survey work since coming back to work in the new year, suggesting the company had made the decision before her return to work. The company had known since her initial interview that there would be a learning curve on the technical aspects of the job. She asked for a discussion. Mr Ellerby replied that with the continual errors in her work and the failure to improve discussion would not be of value.

[27]When did the respondent decide to terminate the claimant’s employment? It was clear to us from the respondent’s answers to questions on this, that it was before the office closed for two weeks for Christmas, so probably in the week after the claimant started her leave. Nicola and Daniela complained about the number of mistakes in the drawings they were putting together for the pre start meetings. They were managing better without the claimant because they did not have to spend time correcting her work.

[28]It is common ground that the claimant had worked on 43 projects during her employment.

[29]In the documents bundle the tribunal had the claimant’s drawings for seven projects. They have been annotated in red to highlight errors, but it is agreed that these had not been shared with the claimant until disclosure in these proceedings. She was questioned about these in cross examination. The seven projects are Antrobus, Evelyn, Beresford, Cornwall, Cranbrook, Fordhook and Hendham. All but Evelyn are on the handover list.

[30]The claimant did the drawings for Antrobus on the 10th October 2023. The fault is in the placing of a side window in the drawing for the proposed extension. The drawing for Evelyn was done the 12th October 2023. The error is that the proposed extension is 30 centimetres higher on the elevation than on the section. She drew Beresford on 6th November 2023. On both the proposed and existing building, the roof is too steep, as shown by photographs and a comparison with Google Street View. She did the drawing for Cornwall on the 22nd September 2023. The tribunal is not clear as to the error. Cranbrook was drawn on 25th October 2023, and revised 11th December 2023, presumably not by the claimant, though her initials appear, as she had already left by that date. Fordhook was drawn 21st November 2023, and shows a misaligned wall in section on both the existing and the proposed drawings. Finally, Hendham shows the claimant’s handwritten measurements from the survey done on 4th December, and the resulting plan. There are errors in measuring the staircase. We noted with interest that 4 of these 7 sets of drawings predate the first meeting when she was told she had to improve, and in two of these the error is in the proposal (where she was to receive assistance), not the existing plan (where she was expected not to make errors). One of these drawings falls between the first review and the informal second meeting. Two of the seven fall after the first email about improvement. Only one of them falls after the second email. The respondent’s witnesses explained that because they do not retain first drafts of corrected drawings, they could not check the detail of the claimant’s errors.

[31]The tribunal also noted that of the four pre-starts due to occur before the end of the year, where plans had already been approved by the council, three contained errors. This suggests either that Nico and Daniella were not checking every plan before submission, as had been suggested, or if they were, they themselves had overlooked these errors. It did of course demonstrate that they could not reply on the accuracy of her work and that they must check it before it was submitted. After Dismissal

[32]The claimant started early conciliation on 26th February and presented her claim on the 20th of March 2024.

[33]The claimant's baby was due on 27th May 2024. She did not consider it worth applying for jobs before then, believing no one would want to hire someone so close to confinement. More recently she has made some (unsuccessful) applications for jobs, but no details were available to the tribunal. At the end of January 2025 she had set up a limited company of her own on the strength of having just been commissioned by a neighbour of a client whose extension the respondent had supervised. Notice

[34]The contract of employment provides for one week’s notice during the probation period, and one month notice either side thereafter. The claimant’s contract had a six month probation period, due to expire 30 November 2023. The respondent has confirmed that this was neither formally passed nor formally extended. None of the documents or statements refer to it.

Relevant Law

[35]Section 18 of the Equality Act prohibits discrimination in pregnancy and maternity discrimination: work cases (2) A person (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,

[36]Tribunals have to consider whether the action complained of was “because of” the protected characteristic (here, pregnancy). They must look at the decision maker’s reasons for the action complained of - Robinson V DWP

2020 EWCA Civ 859

, or Nagarajan v London Regional Transport

1998 IRLR 73

CA – at what operated on the decision maker’s mind

[37]It may be possible to make a finding of fact about the reason. A reason is a set of facts or beliefs which calls on employers to act as he did – Abernethy v Mott Hay and Anderson. But because people rarely admit to discriminating, may not intend to discriminate, and may not even be conscious that they are discriminating, the Equality Act provides a special burden of proof. Section 136 provides: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[38]How this is to operate is discussed in Igen v Wong

(2005) ICR 931

. The burden of proof is on the claimant. Evidence of discrimination is unusual, and the tribunal can draw inferences from facts. If inferences tending to show discrimination can be drawn, it is for the respondent to prove that he did not discriminate, including that the treatment is “in no sense whatsoever” because of the protected characteristic. Tribunals are to bear in mind that many of the facts require to prove any explanation are in the hands of the respondent.

[39]Anya v University of Oxford

(2001) ICR 847

directs tribunals to find primary facts from which they can draw inferences and then look at: “the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the actual decision complained of in the originating applications were” because of a protected characteristic. There must be facts to support the conclusion that there was discrimination, not “a mere intuitive hunch”. Laing v Manchester City Council

(2006) ICR 1519

, explains how once the employee has shown less favourable treatment and all material facts, the tribunal can then move to consider the respondent’s explanation. Tribunals are reminded in Madarrassy v Nomura International Ltd

2007 ICR 867

, that the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent” committed an act of unlawful discrimination”. There must be “something more”.

[40]Shamoon v Royal Ulster Constabulary

(2003) ICR 337

discusses how, particularly in cases of hypothetical comparators, tribunals may usefully proceed first to examine the respondent’s explanation to find out the “reason why” it acted as it did. Glasgow City Council v Zafar

1998 ICR 120

, and Efobji v Royal Mail Ltd

2017 IRLR 956

, reminded tribunals that the respondent’s explanation must be ‘adequate’. 41. . Where the employee has (as here) less than two years’ service, the burden of proving the reason for (unfair) dismissal lies with the employee - Smith v Hayle Town Council

1978 ICR 996

, CA., as it does in detriment cases under the Equality Act.

[42]Section 99 of the Employment Rights Act 1996 makes it unfair to dismiss an employee because of pregnancy, regardless of length of service. (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.. Pregnancy is a prescribed reason.

[43]In an unfair dismissal claim under section 99 an employee must show that pregnancy was the principal reason for dismissal. In claims for detriment (something to her disadvantage) under the Equality Act, she must show that the protected characteristic (pregnancy) materially influenced the employer’s decision. Discussion and Conclusion

[44]The tribunal recognises that for all employers, but particularly small employers, however committed to equality, an announcement of pregnancy is a blow and a problem. That does not mean that a pregnant employee who is dismissed is dismissed because of her pregnancy, But it does mean that employers may be less able to recognise that their motive is discriminatory. There is a higher index of suspicion than with some other protected characteristics.

[45]The tribunal does not doubt that the claimant was underperforming against the respondents expectation, as shown by the discussion on 27 October and the email of 7 November. It may well be that her CV over promised, and her work experience in India, where it seems she was drawing plans but not elevation and section, and may not have had to do site surveys, was more limited in scope than the tasks required of an architectural technician in London.

[46]On the evidence we have seen, the claim it was making some basic errors drafting plans (as of 18th of September), from failing to check her drawing work against a photograph. This is something she could have improved by adopting the techniques suggested by her more experienced colleague. She could also have improved her understanding of the relationship between building and drawing by attending more site surveys, asking the project consultant, and so on, as suggested. There was limited evidence on this, but towards last week she was attending more surveys. On not understanding relationship plan comment section and elevation, however, we are, like the respondent, at a loss to understand this difficulty when she had an first degree and a master’s in Architecture.

[47]Although the tribunal accepts that the claimants performance required improvement, it is not clear why the time period within which improvement was expected shortened from “late February/early March” (7 November) to “end of January” (28 November) to “prior to going on leave” (i.e. 9 December) (reasons letter 17 January. On 25th October there was no suggestion that there was to be an interim review meeting in November, or that she should have shown some improvement by then or face a shortened improvement period. It seemed to us significant that the unexpected and “informal” review meeting was called at short notice a few days after she notified her pregnancy in writing, and that the time period allowed for improvement shortened by a full month in the follow up email after that informal meeting. There was no evidence before the tribunal that her performance had got even worse in the two weeks between 7 and 23 November. Although it was then hoped her performance would show some improvement by the start of her leave (then just over a week away) she was not told that if it did not a decision (which would probably include termination, though the word was never used) would be made then and not at the end of January.

[48]The respondent was able to provide the tribunal with quite limited evidence about the claimant’s ability. Undoubtedly there were mistakes. What the particular evidence that we were taken through, which respondents gave us to understand is what made them conclude that she had not improved after the second meeting on the 23rd of November, did show was that most of these mistakes had occurred much earlier, before she had even been told her performance needed improvement. The evidence (one, possibly two examples) did not demonstrate failure to improve. It is of course possible that the decision was accelerated by the exasperation of the two architectural technicians going through plans for the three pre-stage meetings on the handover list that were due before Christmas, but they had expressed unhappiness with her competence back in September, and she had, on 27 October and 7 November, been offered practical suggestions on how to address improvement, and a period of weeks in which to demonstrate it. The two errors that postdated the request for improvement did not show that she had failed to improve at all, only that she was still not perfect.

[49]As the claimant points out, they will have been aware from interview that her English was fair. Exactly how poor, is hard to judge. At times it was difficult to understand her answers in tribunal, with fractured syntax and odd use of tenses, but the tribunal allows that for the last year, out of the workplace, she has largely functioned within a Gujarati speaking family, so her competence may have receded, and, in any case many people’s language competence falls off when under pressure, as in cross-examination. We noted however, that she did pass the telephone across when clients called, and her written English was comprehensible, but not idiomatic. Whatever her exact level of competence, it was no worse than at interview. Nor was it reasonable to expect her to make a substantial improvement in the six weeks left before she departed on annual leave.

[50]We concluded:(1) that the claimant was treated unfavourably by the shortening of the timescale for improvement because she had announced she was pregnant. There was no other adequate explanation for the change. Shortening the timescale would reduce the risk, from the employer’s point of view, that she might be running into her maternity leave before they could make a decision;

(2) that she did not have an opportunity to put her case on whether she had acted on their suggestions and improved before the employer decided to dismiss her. Both the respondent’s emails – 7 and 28 November - suggested a review meeting with her was to follow. There was none. When she did put her case after dismissal, she was denied any appeal (on ground that without two years’ service that was not required). This was unfavourable treatment because she might, if performance was the principal reason for termination, have persuaded the respondent to relent and restore the original review date.

(3) that the respondent’s decision to terminate her employment was materially contributed to, by pregnancy. The plans presented in evidence as demonstrating a failure to improve, were, as found, largely from before she was told her performance was below the standard expected.

(4) pregnancy was the principal reason why she was dismissed on 11 January. The claimant has proved facts (the bringing forward of the improvement dates; the lack of evidence of why this was) for which the respondent has given no adequate explanation, as it is not shown that any further assessment was made by 28 November, and the assessment of work between then and 9 December seems mostly to have been based on work pre-dating the request to improve.

Remedy

[51]When assessing remedy for a discriminatory dismissal, a tribunal may make an assessment of the chance that the claimant would have remained employed had the employer not dismissed for the discriminatory reason – Abbey National v Chagger

(2010) ICR 397

. That chance is then factored in to the assessment of loss.

[52]A compensatory award for unfair dismissal involves an assessment of what the claimant has lost by the unfair dismissal. Under s123(6), where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable.

[53]In a claim brought under the Equality Act, a tribunal can assess what injury to feelings was caused by the dismissal and award compensation. The level of awards is assessed by reference to three bands described in Vento v Chief Constable of South Yorkshire, which are updated by Presidential Guidance from time to time. The claimant gave evidence of the upset caused, with sleepless nights, unanswered questions, confusion and distress, especially as she had expected to have confirmation of her improvement at the meeting on 11 January. She wished she had had some warning or she might have cancelled the holiday. Dismissal is always a shock, particularly when unexpected. The claimant will also have being angered by the unfairness of bringing forward the date and had difficulty finding another job when have pregnancy was so advanced. The lower and middle bands applicable in January 2024 £1,100 to £11,200, and £11,200 to £33,700. We award £10,000 for injury to feelings for dismissal and the failure to hold a meeting where she could understand their reasoning and put her side of the case. If this is a little lower than some awards that may have been made for dismissal, it is because the claimant must have appreciated that viewed objectively her performance was lacking, as this had been flagged up before her employer could have known that she was expecting.

[54]Given that the claimant’s performance was already under review, we considered very carefully what would have happened had the claimant not dismissed on 11th January, and reviewed her performance at the end of February as originally planned, regardless of the pregnancy. We concluded that she would have been dismissed at that stage. There were basic drafting errors in plans of the existing building, well she did not check her own measurements, or notes of what was proposed, or relate the plan to the reality. She continued to rely on colleagues to correct errors. On her own admission, she struggled with party wall agreements, and on the relationship between plan, section and elevation. These were drawbacks we considered it would have been difficult to put right in the time available, when she also had to improve her liaison with clients and project consultants, and her spoken and written English. This is not to say she was not trying, or could not with more time have benefited from experience of working in a UK practice, only that she started from a lower base of understanding and experience than the respondent had expected judging from her CV. So we make an award for financial loss only until the end of March 2024. That date is chosen because the decision would be made at the end of February, and she was entitled by contract to one month’s notice, as the term on probation period had not been varied to extend it beyond six months.

[55]We do not reduce the award for contribution. The claimant was making efforts to improve.

[56]That is a loss of earnings from 1 February 2024 to 31 March 2024. In the 7 weeks between 31 January and 20 March, when she would have started maternity (working from her schedule of loss) she would have received net pay of £361.71 per week. (The claimant’s schedule claims the gross pay figure. On ET1 she states her net pay at £1,440 per month, but according to the respondent, which has access to better records, it was £1,580 per month and that is the figure we adopt).

[57]If still employed on 20 March, she would then have been paid maternity pay at the higher rate of £363.47 per week for one and a half weeks. That makes a loss of £3,075.50.

[58]There is no basic award (as claimed) because the claimant had not completed a year’s employment (see section 119 and 120 of the Employment Rights Act.

[59]Having regard to the The Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, we calculate interest on the injury to feelings award at 8% from 12 January 2024, a period of 13 months, so £866.67. Interest on the financial loss runs at 8% from the mid point of loss, which is 19 February 2024, a period of 51 weeks, making £241.31. Approved by: