R N M Nunn v HES Estate Management Ltd: 2306327/2023

EMPLOYMENT TRIBUNALS

Case No 2306327/2023

Between

R N M NunnClaimant

HES Estate Management LtdRespondent

Before

Employment Judge N Cox

In person for claimant

Date 26 September 2025

JUDGMENT

[1]The complaint of pregnancy discrimination is not well-founded and is

[2]The complaint of age discrimination is not well-founded and is dismissed.

[3]The claims of harassment relating to age and to pregnancy are not wellfounded and are dismissed.

REASONS

[1]The claimant brings the following complaints: 1.1. Direct Pregnancy discrimination (Section 18 of the Equality Act 2010 – “the Act”) 1.2. Direct Age discrimination (section 13 of the Act) 1.3. Harassment relating to age and pregnancy (section 26 of the Act).

[2]Following the claimant’s resignation on 18 September 2023 with effect from 30 September 2023, early conciliation started on 13 October 2023 and ended on 1 November 2023. The claim form was presented on 18 November 2023.

[3]The respondent defends the claims. It denies that the claimant has been subjected to less favourable treatment or unwanted conduct because of her age or her pregnancy. The respondent says the claimant was supported in respect of struggles with her caseload. She was investigated by an external consultant following the use of offensive language in the office and taking of unapproved leave of absence. It denies various allegations as to statements made in connection with the claimant’s pregnancy.

[4]The issues were discussed at a case management hearing before EJ Yardley on 4 November 2024. They were further discussed with the parties at the start of the hearing and agreed to be as follows (adopting the issue numbers from the Case Management Order):

[1]Age Discrimination 1.1. Did the Respondent do the following things: 1.1.1. On 18 July 2023, Gavin Derriman said that another director’s daughter (who was 21) could do the job better than the Claimant. 1.2. Was that less favourable treatment? The claimant says that she was offended as a 34 year old being compared to a 21-year old, because the 21 year old was the daughter of a director who had the benefit of his support, his oversight of her emails and his knowledge of the buildings in her portfolio, 1 to 1 meetings and that he assisted her in her dealings with clients. 1.2.1. The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. 1.2.2. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. 1.2.3. The Claimant has named the 21 year old Director’s daughter who s/he says was treated better than she was. 1.3. If so, was it because of age? 1.4. Did the Respondent’s treatment amount to a detriment?

[2]Pregnancy Discrimination 2.1. Did the Respondent treat the Claimant unfavourably? 2.2. Did the Respondent treat the Claimant unfavourably by doing the following things: 2.2.1. Subjecting the Claimant to an investigation and issuing a letter of concern. 2.2.2. Not sending an ‘anniversary congratulations’ in the work WhatsApp Group Chat. 2.2.3. Asking the Claimant for her return date. 2.2.4. On 2 June 2023, Gavin Derriman asked the Claimant, on a telephone call, how she happened to get pregnant. 2.3. Did the unfavourable treatment take place in a protected period? 2.4. If not did it implement a decision taken in the protected period? 2.5. Was the unfavourable treatment because of the pregnancy? 2.6. Was the unfavourable treatment because of illness suffered as a result of the pregnancy? The claimant relies on IVF and stress as illnesses suffered as a result of pregnancy.

[3]Harassment related to age and pregnancy (Equality Act 2010 section 26) 3.1. Did the Respondent do the things identified in paragraphs 1.1 and 2.2.1 to 2.2.4 inclusive. 3.2. If so, was that unwanted conduct? 3.3. Did it relate to the Claimant’s age or pregnancy? 3.4. Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 3.5. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[4]Remedy Age and/or Pregnancy Discrimination 4.1. Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? 4.2. What financial losses has the discrimination caused the claimant? 4.3. Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? The Claimant has confirmed that she started a new role on 15 October 2024. 4.4. If not, for what period of loss should the claimant be compensated? 4.5. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 4.6. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? 4.7. Is there a chance that the claimant’s employment would have ended in any event? 4.8. Should their compensation be reduced as a result?

[5]As I explain below it was agreed that issues of remedy would be dealt with at the trial of a second, related claim between the parties.

The Hearing

[6]The hearing took place over 4 days. The tribunal deliberated on Day 3 and 4.

[7]This claim is one of two claims that the claimant brought against the respondent. The second claim [2300866/2025] includes identical claims for age and pregnancy discrimination, but seeks to add a claim for unfair constructive dismissal by reason of the same conduct. The second claim adds a claim for disability discrimination and unfair constructive dismissal in relation to conduct relating to that claim. It also includes a claim of wrongful dismissal/breach of contract and victimisation. The two claims had previously been directed by a legal officer to be heard together – in effect the age and pregnancy discrimination claims overlapped. However, because of a misapprehension about dates, there was no time to case manage the second claim to make it ready for trial before the hearing in this (the first) claim which had already been listed for a full merits hearing. The position at the start of the hearing was that shortly before the start of this hearing an employment judge had directed that the trial of the first claim should proceed. The tribunal had extensive discussions with the parties about how to manage the position. Initially both parties sought to abandon the full merits hearing and convert the hearing to a case management hearing. After further discussion and consideration of other alternatives, including separating out the disability discrimination claim but dealing with the constructive dismissal claim relating to age and pregnancy discrimination during this hearing, the parties’ positions changed. Ultimately the claimant changed from wanting press ahead to wanting to adjourn, the respondent moved from wanting to adjourn to wanting to proceed. In the event, having regard to the efficient use of resources and the overriding objective the tribunal decided to make use of this hearing and to press ahead, since all parties and witnesses were present and the case was prepared for trial. The expectation is that findings of fact in this trial will be treated as findings of fact in the trial of the second claim. It was agreed that a decision would be made on liability for the age and pregnancy claims only and that it would be appropriate to deal with remedy at the hearing of the second claim.

[8]After evidence and submissions there was a further case management discussion. The upshot of that is that I decided to issue a Reserved Judgment so that a clear record of my findings of fact would be available to the judge hearing the second claim. The parties indicated willingness to consider Judicial mediation and so a further Case Management Hearing was arranged for a date that would accommodate an attempt at judicial mediation.

[9]Overall I was satisfied that this was the least worst option in all the circumstances in the interests of justice and the overriding objective of dealing with cases fairly and having regard to the efficient use of the tribunal’s resources.

[10]The claimant had indicated in her second claim that she had a dyslexia condition. In answer to an inquiry by the tribunal about reasonable adjustments, she asked to be allowed a little extra time to deal with documents if needed. The timetable was adjusted to allow her time to prepare cross examination and submissions. I took some time to explain to the claimant how the issues could be used as a structure for her questioning and submissions to assist the tribunal to understand her case better.

[11]I had a hearing bundle of 400 pages.

[12]There were witness statements and oral evidence from: 12.1. The claimant on her own behalf; 12.2. For the respondent from:- 12.2.1. Suzanne Palmer who was an owner director of the respondent. She gave evidence about the claimant’s work allocation, her meetings and discussions with the claimant, and about incidents within the office; 12.2.2. David Harvey, also an owner director, who gave evidence about the claimant’s work allocation, his account of meetings with her, about incidents in the office and his role is setting up an investigation into the claimant; 12.2.3. Gavin Derriman, the third owner director, gave evidence about what was said at various meetings and in conversations with the claimant and also his account of conduct by the claimant.

[13]Both parties provided written submissions supplemented orally. I have taken both parties’ submissions fully into account in reaching my conclusions whether I specifically refer to them or not.

[14]Submissions were made about the credibility of the witnesses. There were some sharp differences in the parties’ accounts of events. I was satisfied overall that in general the witnesses told the truth as they understood it to be and sought to assist the tribunal. Where I disbelieved a recollection or preferred one account over another in a particular instance I have explained why.

Findings of Fact

[15]I make the following findings of fact on the balance of probabilities and in light of the totality of the witness evidence we have read and heard and the documents to which I have been referred. I reference only those matters which I have considered necessary for my conclusions.

[16]The claimant was born in December 1988. At the date of the events complained of she was 34 years old.

[17]The Claimant was employed by the Respondent, as a Senior Property Manager, from 11 August 2022 until 30 September 2024.

[18]The Respondent offers professional property services including block and estate management of around 300 blocks in London, Surrey and the surrounding counties. It employs approximately 40 people of which about 10 are property managers. Only 5 of its employees were male.

[19]The respondent did not have a dedicated in house HR function. All HR matters were contracted out to a third-party consultancy – Peninsula.

[20]The property managers were able to work flexibly from home for part of the week. There was an expectation that they would attend the office at least one day per week, some chose to attend more frequently than that. The claimant in general worked remotely for 4 days a week.

[21]There was a practice of regular face to face meetings with the property managers at which, usually, two of the three directors would attend. The purpose of the meetings was principally to raise matters of concern and to discuss and review annual service charge budgets for the manager’s properties. It was accepted by the claimant in her oral evidence, and I find, that the respondent operated its office in an informal, relaxed style, and that there was an ‘open door’ policy for staff to interact with and consult with the three owner-directors and to voice any concerns. The directors considered that they operated corporately as a ‘family’. However, the claimant said in her oral evidence that she was not confident about going to the directors with concerns, and that they did not appear to her to be responsive when she did. One aspect of the informal style of the respondent’s operations was that one-to-one meetings and other discussions tended not to be recorded or confirmed with contemporary emails or minutes.

[22]Before joining the respondent the claimant had approximately 8 years of prior property-related experience and over 4 years’ experience of managing residential blocks. She was an Associate of the Institute of Residential Property Management. In the course of the evidence the respondent latterly sought to introduce an argument that the claimant’s CV was misleading because it mis-stated the date (2021 vs 2022) when she acquired this qualification. The claimant’s position was that she had done course work to achieve the qualification and that the 2022 certificate was a re-issue. However, the issue was introduced late, the claimant had no opportunity properly to respond to it. I make no finding on the point and took no account of it in considering the credibility of the witnesses or reaching my conclusions.

[23]During her employment with the respondent the claimant continued to maintain a part-time job working at weekends for a residential estate agent, showing houses and performing administrative support. She did not tell the respondent about her second job. She was also involved in a major refurbishment of her home. She told me that her father was mainly responsible for managing that project, but she told Mrs Palmer, and I find, that relations with her father after about November 2022 had become strained and difficult. She was also looking after four dogs.

[24]On 8 July 2022 the claimant was offered the job by Mr Derriman in a phone call about 30 minutes after her job interview.

[25]Her CV also made reference to her (historic) work experience in Portugal and that she was bi-lingual. Mrs Palmer in her oral evidence said that the claimant had told the respondents that her mother ran a business in Portugal and there was a possibility of asking to work the odd week from Portugal and that the principle of doing so was challenged. I find that the claimant’s Portuguese background likely came up in discussion because she had mentioned that she was bi-lingual, but neither the claimant nor Mrs Palmer mentioned in their witness statements any exchange about working from abroad. On balance I find that the possibility of the claimant working from abroad was not discussed at interview in principle or at all. It is unlikely that an applicant would raise complexities of this kind before a job offer was received unless it was a critical factor in their accepting the employment, which it was not. I consider Ms Palmer misremembered this conversation, or sought to embellish it in her evidence in an attempt to bolster the respondent’s case in relation to the investigation of the claimant for working from abroad.

[26]The claimant was appointed in part because she already had relevant experience and the directors expected her to be able to get to work immediately at least with basic tasks while she became familiar with the specific details of her portfolio. The directors all hoped that the claimant would have been able to move to a more complex portfolio quickly in light of her experience.

[27]The claimant was initially given responsibility for the management of 42 blocks and houses. This was a larger number of blocks than other colleagues. However, of these the majority [29 or 2/3 – different figures were given] were Freeholder-Owned blocks or houses. It was common ground that Resident Management Company (“RMC”) controlled blocks were somewhat more complex and difficult to manage than freeholderowned and controlled blocks. The difficulty and scope of work involved in managing a portfolio was also a function of the number and type of units within each building/block. The claimant accepted, and I find, that she had fewer units to manage than her colleagues – in effect she was managing a larger number of smaller blocks.

[28]The claimant was warned that some of her blocks were challenging to manage but that she would also have other, less difficult blocks to get her teeth into. One of the blocks initially assigned to the claimant was a RMC operated block called Lavender Court.

[29]I find that, in the main, the blocks had been managed by the respondent for 10 years and were well organised from a management perspective and in a good state of maintenance.

[30]The respondent’s directors all considered that the claimant’s portfolio workload was relatively light.

[31]Prior to the claimant the same or substantially the same portfolio had been managed by Elizabeth, Nicholas Harvey’s daughter. This was her first work experience after completing her degree. She had started work aged 19 and left aged 21. Before Ms Harvey broadly the same portfolio (including Lavender Court) had been managed by another experienced female property manager.

[32]The claimant asserted, and Mr Harvey accepted that Ms Harvey had the benefit in the discharge of her functions of advice, active supervision and assistance in dealing with clients from her father, at least initially and, in particular with difficult clients such as the RMC at Lavender Court.

[33]The claimant met Ms Harvey once in July 2022 just before she started her employment and they travelled out together twice to visit the majority of the claimant’s blocks. That was the extent of their working relationship. The claimant said, and I accept as it was not challenged, that there was no proper handover, just one hour in the office and a single piece of handwritten paper.

[34]The claimant initially worked well, and received positive feedback from leaseholders for her work. She received positive messages from both her fellow directors and clients from time to time throughout 2023.

[35]On 22 November 2022 the claimant had a meeting with the three directors. She said she was struggling to manage her workload and the blocks effectively and asked to reduce her portfolio.

[36]Following that meeting the directors corresponded between themselves about the claimant’s work. They did not respond immediately to the claimant’s request to reduce her portfolio.

[37]On 25 November 2022 Ms Palmer checked with the claimant that she had an AIRPM qualification.

[38]On 28 November 2022 Mr Harvey sent his co-directors an analysis of emails sent suggesting that the claimant was not justified in her request because she had sent fewer than the average number of emails. The directors were becoming somewhat dissatisfied with the claimant’s performance by this stage, at least in terms of the quantity of her output.

[39]The claimant began medical testing for the purposes of prospective IVF treatment at the end of November 2022. She did not inform the respondent at this time.

[40]On 1 December 2022 the director of the Lavender Fields residential tenants company notified Mr Harvey of concerns about the claimant’s performance and lack of communication with residents at Lavender Court. Later that day Mr Harvey wrote to his fellow directors saying “OMG another complaint – this time from the Lavender Fields director re Rita.” He said he would raise the matter with her but expected that “she will just complain she is overloaded”.

[41]Complaints about property managers from clients was not untypical – some friction was a normal incident of the type of work. Occasionally clients were complementary. The receipt of a complaint about the manager’s work with clients was not typically a matter for investigation or concern.

[42]I find the respondent was aware that the director of the Lavender Court RMC was a difficult person to deal with. The claimant suggested that they knew he was a misogynist. Mr Derrigan described him as someone who considered himself an Alpha-Male when dealing with HES’s managers. I find that the claimant was allocated this block only because it was part of a balanced portfolio allocation to the claimant. It had been within the same broad portfolio managed by two female managers before.

[43]Amongst the claimant’s other properties was a property called Princes Close. This was a new development of houses by Barclay Homes. This meant that a significant part of the work arising from this property involved disputes between residents and the contractor/builder. I accept the respondent’s evidence that throughout the period of the claimant’s employment Mr Harvey and Mrs Palmer provided a significant amount of support to the claimant in relation to Princes Close by dealing with the majority of those disputes.

[44]Following the complaint received in December and the claimant’s request to reduce her workload in November 2022 the directors discussed a reallocation of properties amongst property managers on 15 January 2022. Mr Harvey noted the claimant had asked for her portfolio to be reduced, and considered reallocating one or two properties to a colleague, and wanted to reallocate Lavender Court to a different colleague. The claimant was not kept abreast of these considerations.

[45]The claimant started her IVF treatment in February 2023.

[46]Having had no update on her workload the claimant asked on 6 February 2023 to, and did meet with Mrs Palmer and Mr Harvey on 8 February 2023 to repeat her request to reduce her portfolio. At this meeting the claimant’s difficulties and her performance were discussed. I accept the claimant’s evidence that Mrs Palmer said at that meeting that she was doing a good job.

[47]On 21 February 2023 the claimant attended a face-to-face meeting with Mr Derriman and Mr Harvey. It was not minuted. I find that they were frustrated and disappointed with the claimant’s requests to reduce her workload. They expected her to display a greater degree of efficiency and output in her work, given that they had recruited someone with her level of experience. The issue for them appeared to be mainly the quantity rather than the quality of the work that the claimant was producing, and they were frustrated that she could not cope with what they considered was a ‘dream portfolio’. Mr Derrigan said at that meeting that he interjected to remind the claimant that the same portfolio had been managed previously by a 21-year-old history graduate with no direct block or property management experience. She was asked a question about fire alarms to which she could not recall the answer. She said she was frightened by Mr Derriman’s response. She became tearful and excused herself for 5 minutes. There was initially a difference as to whether she was asked if she was OK on her return. I find that she was. This is an inherently more likely response to her having stepped out in tears. She appeared to accept this in her oral evidence but said that she was not asked anything further and said that she did not want to open up about her stress to two ‘intimidating men’. I find that at the meeting she did not articulate any particular concerns other than that the size of the portfolio was too much for her. Mr Derriman informed her that they were trying to reduce the number of properties she was to manage.

[48]The claimant said in her witness statement, and I accept, that her hormone balance was affected at this time by the effects of her IVF treatment. I consider it likely that these effects exacerbated or contributed to her feelings of stress. The claimant had not disclosed by this point that she was having IVF treatment or how that might be affecting her ability to manage her work and stress levels. She did not provide any medical evidence of elevated stress levels to the respondents.

[49]The claimant said that she thought this meeting was an end of probation meeting. The respondent’s contract of employment anticipated and provided for a 6-month probationary period. The respondent’s witnesses said they did not consider the meeting in this light. I accept their evidence that this was not a formal end of probation review, and that there was no such review because, as they said, if someone was not suitable they would have known that well before the 6-month point. In any event, the respondent did not suggest that the claimant’s performance was such that she did not pass whatever standard they expected for the purposes of passing her probation.

[50]The claimant was notified as part of a general email about reshuffling of properties between managers on 21 February 2023 that Lavender Court was being removed from her portfolio and transferred to another colleague with effect from 1 March 2023. The claimant was allocated three other blocks in place of Lavender Court as part of the property reshuffle.

[51]On 28 February 2023 the claimant met with Mrs Palmer. This was a critical meeting. It was unminuted.

[52]The claimant said it was fixed because someone had reported that they were worried about her mental health. There was no evidence of that, or of how she would have known that that was the case. I find this was a scheduled meeting to discuss budgeting tools and tips which Mrs Palmer provided.

[53]It was common ground that the meeting evolved into a supportive, frank, open and friendly meeting in which and the claimant and Mrs Palmer shared private information about their families and experiences. I find that the claimant told Mrs Palmer that she was experiencing domestic disharmony with her father and disclosed her part time-working. During this meeting the claimant informed the respondent, through Mrs Palmer, that she was commencing IVF treatment. Their mutual expectations were, I find, that the process would likely require additional time off for appointments.

[54]There was a dispute about whether the claimant gave consent for Ms Palmer to inform the other directors about her IVF treatment. The claimant in her submissions said she did not give such consent. Mrs Palmer said that she did because she (Mrs Palmer) had said that she would need to share the information in confidence with her co-directors because there would likely need to be an increased need for leave of absence. On balance I find that it is inherently more likely that Mrs Palmer sought and obtained consent on this occasion to share this information: the claimant’s position was only articulated in her closing submissions, her case was that Mrs Palmer suggested that she could work remotely from Portugal so it is inherently more likely that Mrs Palmer would have asked to share the information in confidence with her co-directors because this would potentially be a matter relevant to business operations. I find that Ms Palmer in fact shared the information with the other directors at about this time.

[55]At this meeting there was also discussion about the claimant working remotely from Portugal. There was a difference in recollection or understanding about what was said in this regard. The claimant contended that Mrs Palmer suggested that, to relieve her stress and allow her to enjoy family support during her IVF journey she could work remotely from Portugal, as Mr Derrigan works from his house in Spain ‘all the time’. The claimant says she double-checked and understood from Mrs Palmer’s confirmation that this was now allowed. Mrs Palmer’s agreed that they discussed the claimant working from Portugal but she says she had said ‘just let me know when because I need to put the dates in [the respondent’s holiday/absence management software]”. I find that she said that Mr Derrigan had previously worked from his house in Spain, but did not say that he did so ‘all the time’. He had done so once two years before for a week from his home there.

[56]I find there was a simple misunderstanding at that stage between them about how the remote working arrangement would be implemented. The claimant’s evidence was that having heard nothing further from Mrs Palmer to the effect that she was not approved for remote working from Portugal she understood she was authorised to do so. Mrs Palmer said that she had not given the claimant general approval to work remotely from Portugal whenever, but that she expected that claimant to give her proposed dates for doing so, which she would then need to run past Mr Harvey and Mr Derrigan before approving them because her absence abroad might have operational ramifications.

[57]The claimant discovered that she was pregnant on 23 March 2023. She did not inform the respondents at this time.

[58]There were monthly one-to-one meetings in March and April. The claimant did not attend the monthly one-to-one in May. This was not re-scheduled, and there was no monthly meeting in June. Monthly meetings resumed in July and August. The claimant performed her duties in this period without adverse comment.

[59]On 19 April 2023 the claimant booked return flights to Portugal leaving on 16 July 2023 – by which time she knew she would be about 5 months pregnant. She did so on the basis of booking one week’s holiday from 31 July to 4 August 2023 (which was approved and entered into the respondent’s holiday software on 24 April 2023) but also taking the two weeks before as working remotely from her mother’s house in Portugal. In other words she had booked holiday from 31 July 2023 (during which period she would not be expected to work) but had arranged flights to facilitate her working remotely from Portugal from 17 July 2023. She did not enter these weeks into the software and did not tell the respondent that she had booked her flights or intended to work remotely from Portugal during these weeks.

[60]On 1 June 2023 the claimant advised Mrs Palmer that she was pregnant, and with her consent Mrs Palmer informed the other directors – in confidence at that stage.

[61]On 2 June 2023 Mr Harvey and Mr Derrigan separately called the claimant to congratulate her on her pregnancy.

[62]The claimant was adamant that in that call Mr Derrigan asked her how her pregnancy had happened because he was aware that she did not have a partner. She says that she felt uncomfortable, that her privacy was violated and that she felt pressurised to disclose to him that she was undergoing IVF. Mr Derrigan forcefully denied saying that. Both witnesses were adamant about their position. I have to decide the question on the basis of the evidence as a whole before me. The claimant said that there should be a recording of the conversation because it was made on a company phone, but no phone recordings were in the evidence. I find that Mr Derrigan did not say what the claimant believed or understood him to have said. I so conclude for the following reasons. First, as I have found above, Mrs Palmer disclosed to her co-directors in confidence in February 2023 that the claimant was undergoing IVF treatment. Mr Derrigan would not have been likely to have asked a question to which he already knew the likely answer. Second, there was no contemporaneous documented reaction by the claimant to what would, it appears to me, likely to have been a comment which, if made, would have been offensive and upsetting to her. Third the claimant did not mention this comment in her grievance dated 25 July 2023, although she complained of an apparently less grievous age-related comment by Mr Derrigan. Fourth, Mr Derrigan accepted in his oral evidence that he ‘gladly’ deferred to his female co-director Mrs Palmer to deal with what he described as female issues arising within the predominantly female workforce. Although that may suggest a somewhat traditional or oldfashioned mindset on the part of Mr Derrigan which cuts both ways (one might infer from such a mind-set that he would be relatively less attuned to the sensitivities of such a question) it is at least consistent with a hesitation on his part to become too involved with such matters. I consider that his mind-set makes it less likely that he would have delved into the claimant’s private life in such an obviously insensitive way.

[63]Staff as a whole were informed on 5 June 2023 that the claimant was pregnant.

[64]On 4 July 2023 a staff member (Julie S) received a congratulatory email on the office WhatsApp group marking her 1 year work anniversary – celebrating the date she started work. Ms Palmer’s evidence was that after that message Julie S complained about the large volume of messages being sent on the group. As a result the directors decided no longer to mark work anniversaries and to restrict celebratory messages to birthdays. I accept her evidence about this. It is consistent with a WhatsApp message circulated in February 2024 which recorded that Ms Palmer hadn’t sent work anniversary messages for quite a while because with increases in team size the messages were getting too numerous. This (February 2024) was an exception because it recorded 20 years of service. I accept an earlier message on 1 September 2023 from Mr Derrigan about a 3 year work anniversary was sent in error. Aside from these there were work anniversaries after 4 July 2024 but they were not marked.

[65]On 5 July 2023 the claimant was in the office to watch a presentation and spoke to Mrs Palmer to say she wanted to take up the offer for her to work remotely from Portugal. The claimant did not say in that conversation that she had already made arrangements to leave for Portugal. There was a difference between the claimant and Ms Palmer about what was said. The claimant says that Ms Palmer said words to the effect of “OK, I’ll speak to the other directors” Ms Palmer recalled that she said she would need to check with Mr Derrigan and Mr Harvey because no-one (apart from Mr Derrigan for a week) had done that before. I find that on that occasion Mrs Palmer did not confirm her agreement for the claimant to work remotely from Portugal. Mr Harvey was on a pre-planned holiday from Thursday 7 July until 17 July 2023 and it is likely that she planned to speak with the directors together after Mr Harvey’s return. It is possible that the claimant had misunderstood that Ms Palmer had agreed, but I consider that it is more likely than not that if that was her belief that she would have emailed Ms Palmer to confirm her understanding and her arrangements. I infer that she did not do that because she had already made arrangements and would not wish to change them. In effect I conclude that she heard what she wanted to hear so that she could proceed with her existing plans.

[66]On 6 July the claimant was in the office. She became exasperated with a client on the phone. When she hung up, loudly enough to be heard by number of other colleagues, she called the client a cunt.

[67]No steps were taken at the time by Mr Harvey who overheard the outburst. I reject his evidence that he issued a verbal reprimand at the time. Had he done so this would have been referred to when she was referred for investigation. I find that he expressed sympathy with the claimant because he knew the client could be difficult to deal with and made no further comment about her outburst. The claimant said, and I accept, that other property managers occasionally vented their frustrations. She said he did not realise how loud or offensive to colleagues she had been.

[68]A complaint was made by a colleague about the claimant’s use of that term.

[69]On 7 July 2023 Mr Harvey informed the claimant that a colleague had made a complaint. She apologised and believed that that was the end of the matter. The claimant WhatsApp messaged a colleague to ask them: “who had moaned” about her calling a leaseholder a cunt, and she was told that “Actually it was everyone – we ALL hate that word and we all sat in shock that you shouted it across the office”. I record that she was apologetic about this lapse during the hearing and said that, being a native Portuguese speaker she had heard the word but not understood that it was likely to be considered so offensive. Nothing further was said about this matter before she left for Portugal.

[70]The claimant left for Portugal on Sunday 16 July 2023. The respondents were not aware that the claimant was now in Portugal working from her mother’s home.

[71]On 17 July 2023 Mr Harvey emailed the claimant because there was a meeting to attend on the Princes Chase account on the evening of 18 July 2023 which it was expected the claimant would attend. He discovered from her response that the claimant was in Portugal. He passed this on to Mrs Palmer whom the claimant said she had ‘advised’.

[72]Mrs Palmer emailed the claimant saying that whilst they had discussed working from Portugal, she had said she was going to speak to Mr Derrigan and Mr Harvey and the claimant had not said she had booked anything. She asked what hours the claimant was working and when she would be back.

[73]The claimant replied saying she logged in as usual and that before she left she ensured that her site visits, budget submissions and her routine work was all up to date. Mrs Palmer responded saying she had discussed but not approved the claimant working from Portugal. I find she was irritated that Mr Harvey had to work late attending a meeting shortly after his return from holiday.

[74]On 18 July 2023 the claimant emailed Mrs Palmer again. She said she had been worrying about the situation. She attached an earlier email from Mr Harvey to the effect that if the meeting took place out of hours the claimant would not likely be able to attend anyway because she did not live locally. She explained she had tried to organise her work so she need not be physically present in the office for that period and offered to take the time as leave of absence if that’s what the directors wanted her to do. Mrs Palmer did not respond to this email.

[75]The claimant sent a further email on 18 July setting out her account of the history of her requests for a reduction in the portfolio and of the meetings in February, including the offer for her to work from Portugal as she needed a break and that there were no further discussions about her workload or mental health after 28 February. She pointed out that after disclosing her pregnancy to Mrs Palmer on 1 June 2023 no pregnancy risk assessment was carried out. She explained that she had told Mrs Palmer on 5 July 2023 that she would be taking up the offer to work from Portugal but had heard nothing back. She asked for a discussion to sort things out.

[76]Mr Derrigan sent a lengthy response on the evening of 18 July 2023. In his email Mr Derriman set out some background to her recruitment and expressed the view that her portfolio of, he stated, 39 properties, “was previously covered by Elisabeth [referring to Ms Harvey, Mr Harvey’s daughter] – a 21 year old graduate with no property management experience and no qualifications.” This is the comment upon which the claimant relies in support of her claim for age discrimination. He said “Our hopes were to utilise your age, experience and qualifications in order that we could give you some more challenging properties – which ultimately would receive better fees that would allow you to pass on smaller more basic Freeholder properties to others”. He confirmed that he knew of her pregnancy from Mrs Palmer, but that the company had not had a formal notification of her pregnancy in writing. He explained that the guidance was that an initial risk assessment should be completed in the second trimester 3-6 months. He also set out his understanding of the facts around her working from Portugal.

[77]On 18 July 2023 the respondent immediately instructed a Mr Couch of Peninsula – the third party HR service provider – to carry out an investigation into the claimant’s conduct.

[78]At 8.30 am on Wednesday 19 July 2023 the claimant was sent an invitation to join a remote meeting with Mr Crouch. She had not, I find, been sent a formal invitation or explanation of the purpose of the appointment. There was in evidence a draft invitation. I find that this was a standard invitation, drafted by Peninsula for the respondent to complete and send. The respondent failed to do so. The claimant was not therefore advised in advance that the investigator might recommend disciplinary action or about what the investigation was concerned with. I consider that on the balance of probabilities this was the result of oversight and/or lack of care or competence by the respondent, who I infer likely but incorrectly assumed (if Peninsula would send the letter.

[79]The claimant attended the interview remotely, and confirmed she was happy to do so without being accompanied. Three categories of matters were investigated (the final report was sent on 8 August 2023) : 79.1. A suspicion that the claimant has been taking trips during working hours without company authorisation. The investigator found no evidence of this and no case to answer. 79.2. Allegations that the claimant had been unreasonably relying on colleagues as a resource instead of addressing issues herself, allowing her ‘light’ portfolio to become disorderly and making repetitive and basic mistakes. The investigator concluded that there was a case to answer on performance and customer delivery expectations and recommended referral to a disciplinary hearing; 79.3. Use of inappropriate language on 6 July 2023. There was a case to answer on this issue which should be referred to a disciplinary hearing. I note that the claimant had mentioned, without detailing, that she had attended counselling in connection with her mental health. 79.4. Going on holiday without authorisation. Mr Crouch found that the claimant’s request to work from home coincided with and extended her booked holiday without having to use additional holiday and should be referred to a disciplinary hearing. 79.5. Mr Crouch advised that the respondent should have taken action to arrange a pregnancy risk assessment on receiving verbal notice of pregnancy and should proceed with that promptly. 79.6. I find that Mr Crouch told the claimant that a transcript of the meeting would be prepared within 48 hours. However, he said that his report would be sent in about 10 days. He did indicate that the transcript would be provided to the claimant within 48 hours.

[80]I find it likely that in the absence of proper notice, and without a copy of the meeting notes which the claimant misunderstood were to be sent within 48 hours, she would have been distressed and worried by the course of the meeting and the notified risk of disciplinary steps. Her levels of worry and concern would likely have been exacerbated by the fact and the usual medical sequelae of her ongoing pregnancy.

[81]The claimant raised a grievance by email on 25 July 2023. She complained about: unfair treatment at work, communications between herself and the directors, a lack of communication since 17 July 2023, the manner in which the investigatory meeting took place and her lack of notice of the meeting or of dissatisfaction with her performance, the lack of care and attention regarding her unborn child’s wellbeing and lack of follow up after her announcement and age discrimination.

[82]On 26 July she responded to a request from Ms Palmer to advise the dates of her planned ante-natal appointments and the planned date of her maternity leave – from (including accrued leave for the first nine days) 1 November 2023.

[83]On 28 July 2023 in response Ms Palmer emailed the claimant asking her for her planned return to work date so that it could be entered into the attendance software. The claimant responded immediately saying that she intended to take 52 weeks as allowed, but she would keep Ms Palmer updated with any changes.

[84]On the same day the claimant attended her first New and Expectant Mothers risk assessment. That risk assessment recorded amongst other things: 84.1. “Rita can manage her hours. Agreed that if there is a problem with excessive tiredness or feeling unwell because of hours/workload, she will report this to a director or me to agree a best way forward”; 84.2. “Colleagues have been very supportive of Rita during this time”; 84.3. “Has the individual risk assessment taken into account any concerns the woman has about her own pregnancy? Yes. Rita is having regular check-ups and will advise of any concerns so that any reasonable adjustments can be made as required”.

[85]On 8 August 2023 the investigation report and minutes were issued by Mr Crouch. They omitted the Schedules referred to in the report. Arrangements were made in correspondence to hear the claimant’s grievance. It was to be conducted by a Mr Chris Cox from Peninsula on 25 August 2023.

[86]The 11 August 2023 was the claimant’s ‘work anniversary’ – the anniversary of her start work date. No congratulatory message was sent out to her on the office WhatsApp group. A colleague whose work anniversary was on 9 August 2023 also received no message. I find this was because of the policy change in messaging referred to above.

[87]On 23 August 2023 Mr Derriman issued a letter to the claimant following the investigation outcome report. The purpose of the letter was said to be to underline the directors’ concerns regarding her conduct – the Letter of Concern. It referred to her ‘rude and objectionable behaviour in the presence of colleagues, failure to follow rules and procedures by working from Portugal without director approval and “regularly contacting work collegues requesting assistance on matters that you should have resolved on your own”. It stated further: “This letter is not intended to be a formal warning and does not form part of the company's disciplinary procedure, however, it will be kept in your personnel file and thus takes the form of what we consider to be a reasonable written management instruction. Should there be any repeat of this conduct, or indeed any misconduct in general you may be subject to formal disciplinary action”. The letter then attached and referred to the disciplinary procedure.

[88]No disciplinary hearing was held.

[89]On 25 August 2023 Mr Cox of Peninsula conducted the grievance hearing remotely. The claimant consented to proceeding unaccompanied on the call.

[90]The claimant attended her second pregnancy risk assessment on 31 August 2023. That assessment recorded: 90.1. “Is the woman expected to work long hours or overtime ?: Yes. Rita can manage her hours. However, as her pregnancy progresses, Rita is feeling more tired and does feel her workload impacts on this. Rita is very keen to ensure that when she goes on maternity leave she leaves everything in order for the person taking over…Given that as her pregnancy progresses Rita may tire more easily the sooner this can be arranged may well be best for all parties, and Rita feels this would help her manage her stress levels.” 90.2. “Has the individual risk assessment taken into account any concerns the woman has about her own pregnancy? Yes. Rita is having regular check ups and will advise of any concerns so that any reasonable adjustments can be made as required”.

[91]On 31 August 2023, following the grievance hearing Mr Cox interviewed Mr Harvey, Mr Derriman and on 1 September 2023 Ms Palmer responded to written questions sent by Mr Cox.

[92]The claimant had to chase up the grievance outcome and made a Subject Access Request on 25 September 2023 seeking details of the complaints against her by colleagues which had been alleged in the investigation and letter of concern.

[93]Mr Cox produced his grievance outcome report on 27 September. He did not uphold the claimant’s grievances save that for the age discrimination complaint he recommended upholding the complaint because, although not amounting to discrimination the reference to age rather than experience was ‘not an ideal way to address performance concerns’. He recommended a review of the claimant’s workload in her final weeks before maternity leave, an apology to try to rebuild relationships.

[94]The claimant appealed the grievance outcome on 3 October 2023.

[95]Mr Derrigan wrote to the claimant on 23 October 2023 apologising for referring to her age by comparing her to a 21-year-old in the way he did.

[96]On 24 October Mr Derrigan responded to the SAR request. He provided little detail of the complaints that had been relied upon – 5 client emails and 2 colleague emails. He asserted that colleagues had not given consent for their emails to be disclosed.

[97]The claimant’s appeal was acknowledged on 31 October and a Mr Harris of Peninsula conducted a remote appeal hearing with the claimant while she was on holiday on 6 November 2023.

[98]On 15 November Mr Derrigan sent Mr Harris’ appeal outcome report to the claimant. Her appeal had been dismissed in its entirety.

[99]On 30 November 2023 the claimant raised a second grievance concerning the letter of concern and the response to her SAR request. The respondent did not respond to this grievance.

[100]The claimant was not contacted by the respondent during her maternity leave. She felt during this period she was unsupported.

[101]On 13 August 2024 the claimant indicated her intention to return to work after maternity leave on 8 October 2024.

[102]However, she resigned on 18 September 2024 with effect from 30 September 2024 and commenced work with an alternative employer from 15 October 2024.

Applicable Law

[103]Neither party made submissions on the law. I have applied the following well-established principles in reaching my conclusions. Discrimination General

[104]An employer must not discriminate against an employee in the terms of their employment, by dismissing the employee or by subjecting the employee to any other detriment Act s 39(1). Burden of Proof

[105]Section 136 applies to any proceedings relating to a contravention of the Act and 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”.

[106]There is therefore a two-stage analytical process. Stage 1 concerns the primary facts and Stage 2 the employers explanation. Guidelines on the application of the burden of proof provisions were provided in the Court of Appeal in Igen v Wong

[2005] EWCA 142

(a pre- Equality Act 2010 case) and have been subsequently restated and explained in Hewage v Grampian Health Board

[2012] ICR 1054

(SC) Efobi v Royal Mail Group Ltd

[2021] UKSC 33

and Field v Pye & Co [2022] EAT.

[107]In the first stage the burden of proof lies with the claimant who must prove on a balance of probabilities facts from which a Tribunal could conclude, assuming no other (non-discriminatory) explanation, that the respondent had discriminated against them. At Stage 1 inferences may be informed by evasive answers or failures to adduce evidence from relevant witnesses or from a failure to comply with applicable codes of practice.

[108]If the claimant meets the burden and establishes a prima facie case (which requires the Tribunal to hear evidence from the claimant and the respondent to determine what proper inferences may be drawn) then the burden shifts to the respondent. The respondent must prove that it did not commit the discriminatory act or that it had a non-discriminatory reason for its conduct or a difference in treatment. See generally on the application of the burden of proof provisions: Leicester City Council v Parmar

[2025] EWCA Civ 952

[109]In direct discrimination claims (Act section 13): 109.1. it is not sufficient at Stage 1 for the claimant merely to prove a difference in protected characteristic and a difference in treatment. Something more is required: Madrassy v Nomura International

[2007] ICR 867

(CA). It cannot be presumed or inferred only from the fact that an employer has acted unreasonably towards one employee that it would have acted reasonably if dealing with another: Zafar v Glasgow City Council

[1998] IRLR 36

. At this stage ultimately the tribunal must stand back from the detail and look at the cumulative picture. 109.2. If the burden shifts to the respondent, it must prove that on the balance of probabilities the dismissal or detrimental or less favourable treatment was in no sense whatsoever on the grounds of the protected characteristic. Because the employer is normally in possession of the facts necessary to make out an explanation, a tribunal will normally require cogent evidence to discharge the burden of proof and will examine failures to comply with applicable codes of practice carefully. This stage involves consideration of the subjective reasons that caused the employer to act as it did. The respondent will have to show a nondiscriminatory reason for any difference in treatment. But the respondent only has to prove that the reason for the treatment was not the proscribed reason. The respondent does not need to prove that it acted reasonably or fairly, but in such cases the tribunal will carefully test explanations that the employer was only acting unfairly and not for the discriminatory reason: Komeng v Sandwell Metropolitan Borough Council

UKEAT/0592/10/SM

[110]In harassment claims under section 26 of the Act: 110.1. A claimant only has to show that the conduct had the purpose or effect either of violating dignity or of creating the proscribed environment — the claimant does not have to show both; 110.2. The same two stage burden of proof test applies. The claimant must prove that conduct occurred which was unwanted and facts from which a tribunal could infer (absent a non-discriminatory explanation by the respondent) that the conduct related to the protected characteristic, and that it had the purpose or effect of violating the claimant’s dignity or creating the proscribed environment; 110.3. If the claimant satisfies that burden the respondent must prove that the conduct did not relate to the protected characteristic, or if it did that it did not have the prohibited purpose or effects. A relevant aspect of that task in both cases will be demonstrating that the perpetrator did not have the prohibited purpose in mind.

[111]Tribunals must be careful not to apply the burden of proof provisions in an overly mechanistic manner: Khan v The Home Office

[2008] EWCA Civ 578

(per Maurice Kay LJ at paragraph 12). The approach laid down by section 136 requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the twostage test under section 136 does not come into the equation: see Hewage v Grampian Health Board

[2012] ICR 1054

(per Lord Hope at paragraph 32) approving Martin v Devonshires Solicitors

[2011] ICR 352

(per Underhill J at paragraph 39). Direct Age Discrimination

[112]Section 13 of the Act 2010 provides : A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably that A treats or would treat others.

[113]Age is a protected characteristic: Section 4. A reference in the Act to a person who has the protected characteristic of age is ‘a reference to a person of a particular age group’, and a reference to persons who share that characteristic is ‘a reference to persons of the same age group’. An ‘age group’ is a group of persons defined by reference to age, whether to a particular age or to a range of ages — S.5(2).

[114]Direct discrimination occurs where the employer treats or would treat the employee less favourably than another employee ‘because of’ a protected characteristic.

[115]The less favourable treatment must amount to a detriment. The test of detriment has both subjective and objective elements. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL. It is for the tribunal to decide, applying an objective test, as a matter of fact what is less favourable treatment. The claimant’s perception of the effect of the treatment on him or her is a relevant consideration.

[116]Section 13 requires the claimant to identify a comparator who was or would have been treated differently. The circumstances of the comparator, who may be actual or hypothetical, must be not materially different to those of the claimant (Act s 23: Hewage v Grampian Health Board

[2012] UKSC 37

). The claimant compares herself with Elizabeth Harvey.

[117]The crucial question in every direct discrimination case is what is the reason why the claimant was treated as they were. Was it because of their protected characteristic or was it wholly for other reasons. The protected characteristic need not be the only reason for the less favourable treatment it may not even be the main reason. Provided the decision in question was significantly, that is more than trivially, influenced by the protected characteristic the treatment will be because of that characteristic.

[118]In most cases the tribunal will have to look to the mental processes of the alleged discriminator to determine their motivation: Nagarajan v London Regional Transport

[1999] IRLR 572

. Motivation is not the same as motive and a well-meaning employer may still directly discriminate. Discrimination may also be subconscious. An employer may genuinely believe that the reason why he acted as they did had nothing to do with the applicant disability but a tribunal may decide that the proper inference to be drawn from the evidence is that whether the employer realised at the time or not, that the protected characteristic was the reason why they acted as they did.

[119]When considering a claim under section 13, the individual decisionmaker must be found to have actual or constructive knowledge of the protected characteristic.

[120]Section.13(2) of the Act provides that: ‘If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.’ The respondent in this case did not rely on a justification defence. Pregnancy Discrimination Applicable Law

[121]Pregnancy and maternity are protected characteristics: Act s 4. 121.1. Section 18 of the Act provides (so far as relevant) that: An employer (A) discriminates against a woman if, in the ‘protected period’ in relation to a pregnancy of hers, A treats her unfavourably: because of the pregnancy: Section 18(2)(a), or because of illness suffered by her as a result of it: Section18(2)(b).

[122]Section 18(7) provides that no claim of direct sex discrimination may be made under section 13 based on treatment of a woman that falls within section 18.

[123]The ‘protected period’, in relation to a woman’s pregnancy, starts when the pregnancy begins and, if she has the right to ordinary or additional maternity leave, ends either at the end of additional maternity leave or when she returns to work, if earlier: Section18(6)(a). Ordinary and additional maternity leave are provided for in ss.71 and 73 of the Employment Rights Act 1996 respectively and applied to the Act by section 213.

[124]In cases where a claimant is undergoing IVF treatment, the protected period begins from the date of implantation of ova onwards: Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG

2008 IRLR 387

, ECJ: Sahota v Home Office

2010 ICR 772

, EAT.

[125]Unlike the general prohibition against direct discrimination (section 13), Section18 does not require that a complainant compares the way she has been treated with the way a comparator has been or would have been treated. Section 18 requires only that the complainant show she has been treated ‘unfavourably’.

[126]Unfavourable treatment is not defined. Guidance in the Equality and Human Rights Commission (EHRC) ‘Code of Practice on Employment’ (2011) (“the ECHR Code”) at paragraph 5.7 describes the term as meaning that the person ‘must have been put at a disadvantage’ (this is in the context of a disability discrimination claim. Paragraph 8.22. gives some specific examples in the pregnancy discrimination context.

[127]The unfavourable treatment must be ‘because of’ the employee’s pregnancy or pregnancy-related illness. This requires the tribunal to consider the ‘grounds’ for the treatment. The approach of the tribunal depends on whether the unfavourable treatment arises where the discriminator applies a rule or criterion which is inherently based on the protected characteristic. In such a case the criterion itself, or its application, constitutes the grounds of the act complained of, and there is no need to look further. But where the case does not involve the application of any inherently discriminatory criterion and the discriminatory grounds consist in the fact that the protected characteristic has operated on the discriminator’s mind so as to lead him to act in the way complained of it is necessary to consider the discriminator’s mental processes in order to determine the section 18 claim. The protected characteristic does not have to be the only factor: it is enough if it has had “a significant influence”. Nor need it be conscious: a subconscious motivation, if proved, will suffice: Indigo Design Build and Management Ltd and anor v Martinez EAT 0020/14 per His Honour Judge Richardson referring to Underhill LJ in Onu v Akwiwu and anor; Taiwo v Olaigbe and anor

2014 ICR 571

, CA. Harassment S 26 of the Equality Act provides relevantly as follows: (1) a person (A) harasses another (B) : if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating hostile degrading humiliating or offensive environment for B. (4) In deciding whether the conduct had the effect referred to in sub-section (1) (b) each of the following must be taken into account (a) the perception of B; (b) the other circumstances of the case; (c ) whether it is reasonable for that conduct to have that effect.

[128]In determining whether the conduct is “related to” the protected characteristic in issue, a phrase which is broader than ‘because of’ in section 13, the tribunal must identify some feature of the factual matrix which has led it to the conclusion that the conduct is related to that protected characteristic: Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor

[2020] IRLR 495

. The focus of the Tribunal must be on the specific conduct complained of when assessing whether it is related to the protected characteristic: Worcestershire Health and Care NHS Trust v Allen

[2024] EAT 40

at paragraph 9. The EHRC Code states that the necessary connection with a protected characteristic can arise where ‘the unwanted conduct is related to the protected characteristic, but does not take place because of the protected characteristic’— para 7.10.

[129]The language of section 26 (1) b) is strong and looks for effects which are serious and marked. It is wrong to cheapen them. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment: Omooba v Michael Garret Associates

[2024] IRLR 440

per Eady J at [103] citing Elias LJ in Grant v HM Land Registry

[2011] EWCA Civ 769

(paragraph 47) and Langstaff P in Betsi Cadwaladr University v Hughes

UKEAT/0179/13

(paragraph 12).

[130]The word ‘environment’ signifies a state of affairs. Such an environment may be created by a one-off incident, but its effects must be of longer duration. A comment made ‘once or twice’ might not cause real offence, but if used more often could lead to a finding that the remarks created an intimidating, hostile, degrading, humiliating or offensive environment. Some of the factors a tribunal might take into account in deciding whether an adverse environment had been created include the fact that the relevant conduct was not directed at the claimant, that the words objected to were used only occasionally and that the claimant made no immediate complaint, (although tribunals should be cautious of placing too much weight on the timing of an objection, given that it may not always be easy for an employee to make an immediate complaint.): Weeks v Newham College of Further Education EAT 0630/11 and Pemberton v Inwood

2017 ICR 929

, EAT.

[131]Where a claim is brought on the basis that the unwanted conduct had the purpose of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, the tribunal needs to examine the perpetrator’s intentions and is likely to need to draw inferences from the surrounding circumstances. If it finds that the conduct had the purpose of violating a claimant’s dignity – for example where conduct is repeated when a claimant has clearly objected to it - it is not necessary to establish that it also had the proscribed effect.

[132]Where a claim depends on whether the conduct has had the proscribed effect, the focus is on the effect. The effect can be produced whether the perpetrator intends it or not, and regardless of whether the perpetrator knows that the claimant had the protected characteristic.

[133]In deciding whether the conduct has the relevant effect, tribunals must take into account the claimant’s perception, the other circumstances of the case, and ‘whether it is reasonable for the conduct to have that effect’ — S.26(4). The test therefore has both subjective and objective elements. The subjective part involves the tribunal looking at the effect that the conduct of the alleged harasser had on the claimant, while the objective part requires the tribunal to ask itself whether it was reasonable for the claimant to feel the effect complained of. The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so. The tribunal must also take into account all the other circumstances: Pemberton v Inwood

2018 ICR 1291

, CA. The subjective element of the harassment definition means that conduct related to a protected characteristic that is not intentionally harmful can still have a damaging effect. The ‘other circumstances’ of the case to be taken into account under section 26(4) may be used to shed light both on the complainant’s perception and on whether it was reasonable for the conduct to have the effect. The EHRC Code notes that relevant circumstances can include those of the complainant, such as the claimant’s health, including mental health; mental capacity; cultural norms; and previous experience of harassment. It can also include the environment in which the conduct takes place: see para 7.18. Analysis and conclusions Direct Age Discrimination

[134]Mr Derriman said in an email on 18 July 2023 that the portfolio being managed by the claimant was previously covered by Ms Harvey “a 21 year old graduate with no property management experience and no qualifications”. He had made a similar reference in the course of a meeting in February 2023. Mr Derrigan did not in terms say that Ms Harvey could do the job better than the claimant. However in its context his statement amounted to an unfavourable comparison of the claimant’s performance to that of Ms Harvey.

[135]The making of the statements by Mr Derrigan amounted to unfavourable treatment. The comparison was reasonably perceived by the claimant as critical of her, and unfair because she believed, as was in fact the case for at least part of her tenure, that Ms Harvey was provided with a much greater level of support from her father than the claimant received.

[136]The unfavourable treatment related to the claimant’s age. Mr Derrigan’s email refers to the claimant’s age twice. He said also: “Our hopes were to utilise your age, experience and qualifications in order that we could give you some more challenging properties”.

[137]However, it important to emphasise that the age discrimination claim is based on the allegation that the statement was made. No other conduct is relied upon as amounting to less favourable treatment. In particular, although the claimant says that Ms Harvey was treated better than her (and notwithstanding that the respondent’s submissions addressed this point), the claim does not refer to or rely on the provision of additional support as the less favourable treatment. Even if the claim were read in that way (favourable to the claimant) it is clear to me that the support Ms Harvey was provided with was not because of her age. It was because of her relationship with her father and her lack of qualifications and experience. To put the point another way she would have been given the same support if she had been the same age as the claimant but similarly inexperienced and unqualified.

[138]Applying the two-stage burden of proof, the claimant has not established a prima facie case. However, even if I am wrong about that and the claimant has passed the stage 1 burden of proof, the claim still fails.

[139]I consider that Ms Harvey is not an appropriate comparator. She was not in materially the same circumstances as the claimant. She was not similarly qualified or experienced, she was related to a director and received a degree of support directly from her father which in scope and degree exceeded anything provided to the claimant.

[140]When asking myself whether a statement critically referencing the comparative youth of Ms Harvey would have been made to a person in the claimant’s position who was not in their thirties, I find that (before he was criticised in the first grievance report) Mr Derrigan would have made the same comment to another worker who did not share the same age grouping (thirties) that the claimant relies upon but who was similarly experienced and qualified and performing similarly below the respondent’s expectations.

[141]The respondent has therefore satisfied me that the claimant was not treated less favourably than the actual or a hypothetical comparator.

[142]I conclude also that the reference to age was, for Mr Derrigan, peripheral to his main point, which was that he and his fellow directors were frustrated that the claimant’s output was less than expected given her qualifications and experience. I find that his reference to age was just a colourable illustration of Ms Harvey’s relative inexperience. Accordingly, although the comment related to the claimant’s age, the making of the comment was not ‘because of’ that protected characteristic.

[143]The claim of direct age discrimination is not well-founded and is Harassment related to age

[144]I have stated above my findings as to what Mr Derrigan said about the claimant’s age on two occasions.

[145]I am satisfied that his comments in so far as they related to her age amounted to unwanted conduct. This is clear from the fact that the claimant promptly raised a grievance about the email of 18 July 2023.

[146]They related to the protected characteristic of age because there was a reference to the fact that the former occupant of the claimant’s position was 21-years old. The was an intended implication that the performance of the younger person was to be compared with the claimant, who was an older and more experienced person.

[147]I accept Mr Derrigan’s evidence that his purpose and principal intention was to express frustration the claimant was seeking to reduce her workload from what he and his fellow directors regarded as already a relatively light, or at least undemanding portfolio given that she had relevant experience and qualifications. The reference to Ms Harvey’s age was principally descriptive of Ms Harvey’s relative inexperience and ancillary to the main purpose of criticising the claimant’s performance.

[148]I am not satisfied that Mr Derrigan’s comments had the purpose of violating the claimant’s dignity. Violation is a strong word, offending or hurting dignity is not sufficient. Mr Derrigan’s reference to Ms Harvey’s age was intentional and directed at the claimant. They were intended to be taken by the claimant as critical of her. However, the comments were made in the context, in both cases, of more general frustration at her perceived underperformance compared to his expectations based on the claimant’s qualifications and experience. The claimant did not take issue with Mr Derrigan’s use of the same language in February 2023. In the case of the 18 July 2023 email in particular the comment was made in response to a detailed email from the claimant which again raised her wish to reduce her workload, among other matters. It was a minor part of a longer and detailed response. There was no specific reference to, nor was there a reasonable implication that the claimant’s age was regarded as being a barrier to her ability to perform in future. It was a largely peripheral, descriptive adjunct in Mr Derrigan’s overall commentary on her perceived under-performance to date – a matter upon which he held, I find, genuinely a critical opinion. It was not expressed in offensive language. It was not made in front of colleagues or clients. Those to whom it was copied were aware of the facts and, I find, shared the general sentiment.

[149]As regards the effect of Mr Derrigan’s conduct, I find that it did not produce the proscribed environment and/or did not have the effect of doing so. My reasons are as follows.

[150]For the same reasons as I have set out above when considering whether Mr Derrigan had the purpose of violating the claimant’s dignity (Paragraph 148), I find that while the claimant was hurt and offended by the comparison with Ms Harvey and the implied comparison relating to age, the conduct was insufficiently serious and did not have the effect of violating her dignity. I consider that in reality the claimant was upset by her treatment in general from mid-July 2023 and that she relied upon Mr Derrigan’s comment relating to her age as a makeweight to bolster a wider set of grievances about her perceived mistreatment.

[151]I am not satisfied either that the conduct relied upon created the proscribed environment for the purposes of section 26(i)(b)(ii). I have taken into account the considerations set out in paragraph 148 above. In addition, although Mr Derrigan twice referenced Ms Harvey’s age in comments when comparing her and the claimant’s performance, the comments were made several months apart. In each case they arose directly in response to a request by the claimant to reduce her workload – a request that was actioned by the respondent in March 2023. There were no other express or implied references to the claimant’s age. When the offence was pointed out to Mr Derrigan he made an apology, and there was no repetition of such comments. Even taking into account that the language was used twice, the conduct relied upon had the characteristic in my judgment of single events or incidents and were not such as to create a proscribed environment or sufficiently serious to support a claim for harassment.

[152]In case that conclusion is wrong, I consider whether the conduct had the effect of creating the proscribed environment. I remind myself that I must consider both whether the claimant perceived herself to have suffered the effect in question and whether it was reasonable for the conduct to be regarded by the claimant as having that effect. I must also take into account all the other circumstances.

[153]I have taken into account when considering the circumstances as a whole the factors I have referred to above. I have also taken into account the fact that the claimant was at the time the email comment was made known by the respondent to be pregnant, and for that reason at least potentially more vulnerable or sensitive to stress and criticism. She had said in an email of that date that she was worried about the reaction to her working from Portugal. On the following day she was required to attend what turned out to be an investigation into her conduct of which she had had no previous notice, and which included criticism of her performance. It is relevant also that the comparison with Ms Harvey’s performance in so far as it referenced her age was unfair to the claimant, and I find believed by her to be so, because Ms Harvey had had extensive support and assistance from her father.

[154]As regards the subjective question, as I have found, the claimant did perceive the comment subjectively as offensive.

[155]Turning to the objective question, whether it was reasonable in all the circumstances for the comment to have had the proscribed effect on the claimant, in my judgment it was not. Having regard to all of the circumstances to which I have referred, to the content of the comment and to the context and circumstances in which it was made, I am satisfied that it was not of a quality and seriousness to justify a conclusion that it created the proscribed effect.

[156]The claim of harassment related to age is not well-founded and is Direct Pregnancy Discrimination

[157]I have found above that: 157.1. The respondent subjected the claimant to an investigation on 19 July 2023 (Issue 2.2.1.); 157.2. It issued her with a ‘letter of concern’ on 23 August 2023 (Issue 2.2.1.); 157.3. It did not send the claimant a work anniversary congratulations WhatsApp message on 11 August 2023 but by the time the claimant’s work anniversary came round, the respondent had adopted a practice of not sending work anniversary congratulatory WhatApp messages (Issue 2.2.2); 157.4. On 28 July 2023 Ms Palmer asked the claimant for her proposed return to work date after maternity leave (issue 2.2.3) ;

[158]The protected period commences in cases of IVF treatment when the embryo is transplanted, subject to the employer having knowledge of it. Transplantation occurred in February 2023, and Ms Palmer knew that the claimant was undertaking IVF on 28 February (although she did not know that transplantation had taken place). The respondents had actual knowledge of the claimant’s pregnancy on and from 1 June 2023. The protected period ends at the end of her ordinary or additional maternity leave. This would be at least 52 weeks. The respondent submitted that the protected period commenced on 1 June 2023. It is possible that it may have commenced earlier, but it is unnecessary to resolve that issue because the events above all occurred during the protected period in any event.

[159]The claimant has not satisfied me that she suffered from pregnancyrelated illness. The claimant asserts that her pregnancy-related illnesses were(i) IVF and

(ii) stress. IVF treatment is not itself an illness. However, she told me, and I accept, that during the treatment period her hormones were affected, and that that was also a factor during her pregnancy after March 2023. She mentioned in her oral evidence that she was doing mental health work with maternity nurses, and she engaged with a cognitive behavioural therapy (Guided self-help) course between 28 August and 11 October 2023 to address ‘workplace tension. But I was not referred to evidence that the stress was pregnancy or IVF related, as distinct from being something pre-existing which needed to be monitored during pregnancy/IVF. I note that her requests to reduce her workload commenced in around November 2022, at about the time she was beginning IVF testing, but she was simultaneously subject to stress factors from her home life – her difficult relationship with her father and the burdens of managing a house refurbishment – and working part-time at weekends. I accept that her IVF testing and treatment as well as her pregnancy likely increased her level of, or at least increased her susceptibility to stress. However there is no evidence that the claimant asked for any specific adjustments to address stress management, indeed she accepted that she had not disclosed any medical evidence of stress treatment to her employer and when the claimant asked for a reduction in her workload, the most difficult block – Lavender Court - was removed from her portfolio. The claimant mentioned in passing to Mr Crouch during the investigation into her conduct that she had been having counselling, but it was not clear on the evidence that that had any connection with her pregnancy or IVF treatment. The claimant reported in her risk assessments in July and August 2023 that she was having regular check-ups, and referenced her stress levels in the second risk assessment. So whilst she reported to the CBT course provider that she was experiencing work-related stress in late August 2023, the claimant’s pregnancy risk assessment documents both record that the claimant said she was managing her workload. On the evidence before me, the claimant has not satisfied me that she was experiencing a pregnancy-related illness.

[160]Issue 2.2.2: The failure to send the claimant a work anniversary congratulatory message was not unfavourable treatment. First, the sending of such messages was not an entitlement. It was an additional, non-financial benefit, or to put it another way more favourable treatment, which had been historically practiced. A failure to treat an employee less favourably than they might have been treated does not in itself constitute unfavourable treatment. Second, and critically, I have found that the practice had been, or was at least intended to have been, ended for all employees before the claimant’s work anniversary came round (with a few limited exceptions for , for example, exceptional long service). The claimant was not therefore treated unfavourably because the practice was ended. Other employees would also not by the relevant date have been congratulated on first work anniversaries. This head of claim fails at stage 1 and/or at stage 2.

[161]Issue 2.2.3: Ms Palmer’s request for the claimant to inform her of the date she proposed to return from maternity leave did not amount to unfavourable treatment. The reason for the request was set out in the email. It was to update the respondent’s attendance recording software. I find this was the sole reason for the request. It followed an email exchange in which the claimant had been asked and had advised what date her maternity leave was to commence. It was a reasonable management request for information and was expressed neutrally. It was reasonable for the respondent to inquire whether the claimant intended to utilise all of her statutory maternity leave. It is reasonable for an employee to expect that such a question might be put. There was no express, and no evidential basis from which to imply, pressure on the claimant to return earlier. The claimant’s reply preserved her right both to take full maternity leave, or to request to return earlier if she wished. The respondent did not object to that stance. This head of claim fails at stage 1 and/or at stage 2.

[162]Issue 2.2.4: I have found that the respondent acting by Mr Derrigan did not, on 2 June 2023, ask the claimant how she got pregnant. This head of claim fails at stage 1 and/or at stage 2.

[163]Issue 2.2.1: Subjecting the claimant to an investigation on 19 July 2023 and issuing the Letter of Concern: 163.1. I find that in relation to Issue 2.2.1. in so far as it relates both to the investigation and also to the issuing of the Letter of Concern the claimant has made out a prima facie case. She has proved facts from which a tribunal could, without further explanation, conclude that discrimination on the grounds of pregnancy had occurred. I have taken account of all the following facts in particular:(i) the procedures leading up to the instigation of the investigation were flawed and the claimant was not given adequate notice of the purpose of the call

(ii) there was little or no evidence provided either to the claimant or in the evidence to substantiate the timing, nature, number or content of the alleged complaints about the claimant over-relying on colleagues to, in effect, tell her what to do, and schedules referred to in the investigation, including statements from the directors were not provided to the claimant

(iii) Mr Derrigan’s email of 18 July 2023 made no mention of this issue, but it was the subject of investigation initiated on the same day

(iv) although there was some uncertainty about what week her pregnancy had reached so as to trigger a risk assessment (after 3 months) when the claimant disclosed her pregnancy the respondent did not initiate a risk assessment or inquire into the facts to ascertain its liability to do so and there was little evidence of proactive steps taken to offer pregnancy related support to the claimant

(v) the purpose and intent behind the Letter of Concern, and its status was unclear. It stated that it was not a formal warning and was not part of the respondent’s disciplinary procedure, it stated that it was a formal management instruction but it went on to assert that it would remain on the claimant’s personnel file, and the claimant was warned that a repeat of the conduct referenced within it may result in formal disciplinary action

(vi) in her email of 18 July 2023 the claimant had asked for a meeting to discuss her workload, mental health and working arrangements, the corporate response was the reference to a disciplinary investigation and subsequent Letter of Concern that referred to her failure to manage her workload

(vii) all of the above actions took place after the claimant had disclosed that she was undergoing IVF treatment and, after 1 June 2023 that she was pregnant and was working from her mother’s home in Portugal in order, amongst other things, to address her stress and mental health.

[164]Accordingly, the burden of proof shifts to the respondent to prove that the conduct complained of was not (to anything more than a trivial extent) because of the claimant’s pregnancy or (if I am wrong in my conclusion above) because of any pregnancy-related illness.

[165]The respondent submitted that the investigation was initiated for three main reasons. All or any of them could have been the subject of a disciplinary sanction at the relevant time:(i) Arranging to work from Portugal without management consent

(ii) the incident of the use of profane language in front of colleagues

(iii) routinely contacting and using work colleagues as a first resource instead of making attempts herself to resolve client issues. I record that the investigator also considered issues, which it must be inferred were referred to him for investigation, that the claimant was making repetitive mistakes and failing to manage a ‘light portfolio’. The latter appear to be issues of capability rather than conduct. It is not clear why such issues would be the subject of an investigation procedure directed at the consideration of disciplinary matters, or be the subject of a letter of concern.

[166]It is rarely the case that there is an admission of discrimination. It is necessary therefore to make inferences from facts found in order to reach my conclusion about whether the decision makers were to a more than trivial extent motivated, consciously or unconsciously, by the discriminatory purpose.

[167]In my judgment the decision to initiate the investigation by Peninsula and to issue the Letter of Concern was a joint decision of all three directors.

[168]I am satisfied that the decision to refer the claimant to an investigation and to issue the Letter of Concern was not because of pregnancy (or pregnancy related illness). My reasons are as follows:-

[169]There were legitimate reasons other than pregnancy or pregnancyrelated illness for referring the claimant to an investigation for potential misconduct, namely:(i) the perception that the claimant had failed to follow company rules and procedures by working from Portugal without approval

(ii) the use of profane language in front of colleagues, a number of whom had been offended.

[170]At the time the reference to an investigation was made Ms Palmer was angry with the claimant. I consider that she felt that the claimant had already decided and had arranged to work from Portugal before getting her permission, and that at the same time she believed that the claimant had been misleading in her dealings with her in February 2023 concerning her IVF treatment. In particular that when the claimant had discussed with her in February her intentions regarding fertility treatment, Ms Palmer had understood the claimant to be indicating her intention to start the process. But when the claimant advised her on 1 June that she was pregnant, Ms Palmer believed that the claimant must already have been pregnant when the discussion in February took place. Whether her conclusions were right or wrong I am satisfied that that was Ms Palmer’s genuinely-held belief at the time the referral was made. Her witness statement says “there seems to be a pattern here”. I find she was also angry on behalf of Mr Harvey who she felt had been made to attend a meeting unexpectedly immediately on his return from holiday – although that was not a reasonable basis for anger on her part because the claimant had been told previously in an email that she would not be expected to have to attend the meeting as she did not live locally.

[171]Her conscious and I find unconscious motives in endorsing or approving the referral to an investigation were I infer to ensure that the claimant was robustly dealt with for effectively wilfully disregarding the company’s rules about holiday/absence (as Ms Palmer regarded them) because she considered the claimant to have been unreliable and to have affronted Ms Palmer. The claimant’s pregnancy provided some context but the reason for her conduct was not because of the pregnancy but because of her perception of the claimant’s unreliability and disrespect.

[172]I find that Ms Palmer discussed her perceptions and anger with the other directors. I infer that they were all similarly affronted by Ms Palmer’s account of the claimant’s conduct when they discussed the matter. I so infer also from the fact that the other directors had expressed, and I infer experienced since late 2022, disappointment in the claimant because of their perception of her inadequate performance at work.

[173]This inference is consistent with(i) the immediate reference to Peninsula for an investigation

(ii) the investigation into the use of profanity when no action had been taken at the time by Mr Harvey

(iii) the inclusion in a potential disciplinary investigation of matters that a more considered approach would likely have been dealt with as a capability matter, and which were in any event poorly evidenced and, at least on the evidence before me, unsubstantiated at least in so far as they purported to be a regular occurrence.

[174]I take account of the fact also that the respondents delegated their HR functions to a substantial extent to Peninsula, that Mr Derrigan in particular was a reluctant manager of matters which involved distinctly female issues. Furthermore the Letter of Concern sought to eschew any further disciplinary steps while simultaneously referencing the disciplinary policy. I infer from these factors, and all the circumstances above that it more likely than not that the respondent directors would have been more concerned, consciously and unconsciously, not to take any steps against the claimant that she might characterise as pregnancy discrimination and were trying their best not to do so.

[175]Accordingly for the reasons above the claim of direct pregnancy discrimination is not well-founded and is dismissed. Pregnancy-Related Harassment

[176]I have found that the respondent did the things identified in Issues 2.2.1 to 2.2.3.

[177]Each of those things were unwanted conduct. They were not invited by the claimant.

[178]For substantially the same reasons as set out in paragraph 163.1 above, I find that the claimant has established a prima facie case on the facts: ie evidence of facts from which a tribunal could infer in the absence of any other explanation that the actions relied upon were related to pregnancy (or pregnancy-related illness). Furthermore, the claimant relies on multiple actions. Each thing complained of took place over a short period of weeks. They were each directed towards the claimant. That is a sufficient basis upon which a tribunal could conclude (ignoring any explanation from the respondent) that the proscribed environment was created.

[179]I am satisfied that the claimant in fact perceived that she had been subjected to an intimidating, hostile degrading, humiliating or offensive environment. She was experiencing some stresses to which her pregnancy condition would have rendered her more sensitive. She understood (albeit without checking) that she could work from Portugal. She had much to look forward to and had recently been announcing and celebrating the news of her pregnancy with colleagues. Instead of experiencing what she no doubt hoped would be a happy and supportive environment from management she was unfavourably and unfairly compared to her predecessor by Mr Derrigan and peremptorily and without warning referred to an external HR adviser and subjected to an investigation into her conduct and capability while she was abroad, enjoying support from her mother and looking forward to a relaxing holiday. Shortly afterwards she felt her work anniversary was overlooked, she felt she had to proactively initiate a pregnancy risk assessment and was then asked when she expected her maternity leave to end. Following the investigation she received a letter of concern which was unclear in its purpose: somewhat threatening but taking no disciplinary action. The delta between her expectation and the reality must have appeared to her very stark. It is easy to appreciate why she would have perceived that such conduct was related to her pregnancy which provided background to the events.

[180]However, on the evidence before me, and drawing appropriate inferences from the facts I have found, I find that the respondent has proven on the balance of probabilities that none of the things relied upon by the claimant were related to the claimant’s pregnancy.

[181]I have analysed the factual position and inferences to be drawn in relation to the respondent’s directors’ intentions in paragraphs 168 to 174 above in the context of the pregnancy discrimination claim. I conclude on substantially the same grounds that they did not have the purpose of violating the claimant’s dignity or of creating a proscribed environment.

[182]I conclude also that what they did did not have that effect, even taking into account the claimant’s perception as I have found it to be, and the circumstances I have referred to above which enable the claimant to show a prima facie case. My reasons are as follows:-

[183]The directors were not acting as they did “because of” the claimant’s pregnancy or a related illness. I conclude for substantially the same reasons that they were not so acting “in relation to” her pregnancy (or a pregnancy related illness) either;

[184]There were legitimate reasons why the respondent was, and would reasonably be expected to refer the claimant’s conduct for investigation. The directors had a genuine belief that the claimant had disregarded rules concerning her absence abroad and there had been complaints about her conduct in using profanities in the office;

[185]Furthermore, it was not reasonable for the conduct to have the proscribed effect on the claimant. In particular, in relation to the failure to acknowledge her work anniversary, the practice had already stopped for reasons unrelated to the claimant’s conduct or her pregnancy. Although the claimant does not have the burden of proving less favourable treatment, it is a relevant consideration that other employees would have been treated in the same way. Similarly in relation to Ms Palmer’s inquiry about the claimant’s expected return to work date. There was a reasonable and legitimate reason why that question might and been, and I find was, asked.

[186]These considerations lead me to conclude in all the circumstances that the respondent’s actions were not related to the claimant’s pregnancy (or any related illness), and further, and in the alternative, that it was not reasonable for the conduct to have had the proscribed effect on the claimant.

[187]In reaching my conclusion I have weighed the more difficult aspects of the respondent’s conduct: for example the mixing in of unsubstantiated complaints allegedly from colleagues about the claimant’s over-reliance on them as a resource into a conduct inquiry, and the confusing language and status of the Letter of Concern. On balance I find that these things were attributable to the directors having become frustrated with the claimant (for reasons unrelated to her pregnancy) and being unsophisticated or incompetent in their attempts to deal with the causes of that frustration.

[188]Accordingly the claim for pregnancy related harassment is not wellfounded and is dismissed. Approved by: