Miss E Millett v Edward Hands and Lewis Ltd and others: 2601255/2018
EMPLOYMENT TRIBUNALS
Case No 2601255/2018
Between
Miss E MillettClaimantEdward Hands and Lewis Ltd and othersRespondent
Before
Employment Judge BlackwellDate 30 August 2019
JUDGMENT
[1]The Claimant was an employee within the meaning of Section 230(1) of the Employment Rights Act 1996 from 14 February 2012 to the effective date of termination on 28 March 2018. It therefore follows that the Claimant has sufficient continuous employment to pursue a claim of constructive unfair dismissal.[2]The Respondents’ applications pursuant to Rules 37 and 39 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 are both refused.
REASONS
[1]Ms Wedderspoon represented the Claimant and called the Claimant to give evidence. Mr Doherty represented the Respondents and he called Mr Kujawinski, a consultant with the first Respondent, Mr J C Smith, a former partner of Sheltons, Mrs D T Archer, a Practice Manager for the Respondents, Mr J Hathaway, a Director and shareholder of the first Respondent and his wife Mrs L Hathaway, also a Director and shareholder of the first Respondent.[2]There was an agreed bundle of documents and references are to page numbers in that bundle.[3]I am grateful to both Counsel for their conduct of the case and for their very helpful skeleton arguments and closing submissions. Page 1 of 10[4]The issues were set out in a case management summary held before Employment Judge Ahmed and sent to the parties on 16 October 2018 as follows:-4.1 Whether the Claimant was an employee, worker or self-employed independent contractor of the first Respondent and if necessary to identify the date she was an employee or worker.4.2 Whether pursuant to Section 108 of the Employment Rights Act 1996 the Claimant has the necessary qualifying period of service to bring a complaint of unfair dismissal.4.3 Whether the Claimant was at the material times a disabled person within the meaning of Section 6 of the Equality Act 2010. This no longer remains an issue; disability having been conceded by the Respondents.4.4 Whether any of the complaint should be struck out as having no reasonable prospect of success under Rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013. Alternatively to consider whether any deposit order should be made in respect of any allegation or argument which has little reasonable prospect of success under Rule 39 of the Employment Tribunal Rules of Procedure 2013.[5]Dealing with the first two issues. First it is common ground that if I find Ms Millett to have been an employee throughout her period with Sheltons then it follows as a consequence of her employment with the first Respondent that she has sufficient continuous employment to bring a claim of constructive unfair dismissal having regard to Section 108 of the Employment Rights Act 1996. The relevant statutory provision is Section 230 of the 1996 Act:- “(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under):-(a) a contract of employment, or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.” Page 2 of 10[6]There is a plethora of case law and I am grateful to Counsel for their respective skeleton arguments which I accept draw my attention to those authorities relevant to the issue in this case.
Findings of Fact
[7]Ms Millett was employed as a solicitor in the private client department of Sheltons Solicitors and her employment began at that firm on 14 February 2012.[8]Sheltons were a small firm of solicitors having at that time 3 equity partners. Mr Smith and Mr Kujawinski (both of whom gave evidence) and a Mr Watkinson.[9]Ms Millett and her colleague Ms Grewal were young and commendably ambitious. The 3 equity partners were nearing the end of their careers and were looking for exit strategies. One such strategy was a merger with another firm of solicitors. In the relevant period, ie between 2012 and 2016 there were discussions with Hopkins and with the first Respondent. Sheltons became an LLP at some point prior to 2013.[10]Early in 2013 Ms Millett approached Mr Smith who was at that time regarded as the senior partner concerning a promotion.[11]What then transpired sews the seed of the current dispute between the parties.[12]Those discussions led to an exchange of e-mails beginning at page 164 which is a lengthy e-mail from Mr Smith to Ms Millett and Ms Grewal and is dated 19 July 2013. The opening paragraph reads: “You are aware by now that the structure of the partnership which you joined in April is somewhat informal. We have simply carried over the terms of partnership agreements from many years ago. I believe that you have a copy of one.”[13]It is common ground that the copy referred to is a partnership agreement of 1 January 2009 which begins at page 163(aa).[14]Mr Smith then makes reference to the fact that the partnership is now an LLP and says: “it was not intended that it would make any difference to the partnership agreement itself which I believe in law continues to run along-side the LLP.” He then says: “With the admission of you both as salaried partners, it is accepted that things have changed and so a new modern form of agreement is appropriate based as closely as possible on the existing one.”[15]Ms Millett had drafted such an agreement but it was never adopted save insofar as the maternity provisions from that document were accepted as applying. Unfortunately that document can no longer be found. Page 3 of 10[16]The e-mail goes on as follows: “Therefore we agreed that we would simply exchange e-mails to record the main terms of the new partnership and most importantly to record the specific agreement which we reached yesterday in relation to maternity leave because that is entirely new to us – for obvious reasons we have never had to have such provisions hitherto. We have agreed the entitlement to maternity leave is in accordance with Section 14 of your draft. Therefore the other main terms of the agreement between us taken from the pre-existing agreement between the other 3 partners is as follows:- Brian, George and I will continue to share profits equally after your salaries as agreed from time to time are taken. The partnership will continue upon the usual express and implied terms as set out in the earlier agreement unless determined by any of the usual events which are then listed.” It goes on: “Can we all agree therefore that the terms of the old agreement are extended to include Ella and Harpreet and that this will for the time being form the basis of our current partnership mutatis mutandis and subject to the contents of this e-mail and any other variations which we agree which should be recorded as special resolutions of the LLP.”[17]I should note that there is no record of any such special resolutions.[18]Ms Millett confirmed her agreement to that e-mail. Two matters which are not recorded within the exchange of e-mails is the level of the salary then set; nor is it recorded that neither Ms Millett or Ms Grewal were required to make a capital contribution in accordance with. Thus Ms Millett was not at that point an equity partner, though it is clear that it was everybody’s intention that she should become one in due course.[19]From April 2013 Ms Millett was no longer paid through the PAYE payroll. She was in fact paid through the partnership’s office account. Such payments were clearly drawings and were described as such. Much was made of the fact that such payments were net of income tax and national insurance contributions. In one sense they were since the partnership prudently set aside sums sufficient to pay tax and NI contributions. In my view nothing turns on this point. It is clear that from a tax and national insurance point of view from the tax year 13/14 Ms Millett completed tax returns on the basis of self-employment. Again Ms Millett appears to believe that there was no advantage to her in that arrangement. Again in my view that is irrelevant.[20]She appears to have been paid consistently the sum of £2,480.00 per month together with a car allowance equivalent to £3,000 per annum.[21]From early 2013 onwards it is clear that Ms Millett was held out as a partner to the outside world. Page 4 of 10 22. there is a conflict of evidence as to whether Ms Millett and Ms Grewal were effectively equal partners with the 3 equity partners in terms of the management and running of the partnership.[23]I do not believe that there is a black and white answer. I accept Mr Smith’s evidence that Ms Millett was entirely responsible for her own area of expertise ie will drafting and that she took an active hand in the management of the firm, see for example page 177(p). It is clear that Ms Millett had at all times her eyes on the future and her career and was thus actively engaged in matters which would affect the future of the partnership and thus her own future.[24]Nonetheless I accept her evidence that she was not involved in discussions with the partnerships’ accountants save in respect of her personal returns.[25]Further the 3 equity partners own the premises from which Sheltons practiced and she did not share in any benefits consequent upon that either in the period when Sheltons existed or as a consequence of the subsequent acquisition of the business of Sheltons by the first Respondents.[26]On 31 March 2014 Mr Smith wrote to all partners an e-mail at page 172(u) as follows: “This e-mail is to confirm the agreement between us concerning the arrangements for basic drawings and profit share from April 2014 in relation to Sheltons Solicitors LLP. All partners will take basic monthly drawings as agreed between them from time to time. In addition there will be the following allocation of profit to be determined by reference to the audited accounts at the end of the tax year:- JUNIOR PARTNERS Ella Millett - 3% of the net profit in addition to monthly drawings.”[27]The e-mail then went on to deal with Ms Grewal’s allocation of 2% of the net profit and the distribution of the remaining 95% of the net profit as between the 3 equity partners.[28]The penultimate paragraph of the e-mail reads: “For the avoidance of doubt the guaranteed income of the junior partners, namely Ella and Harpreet will not exceed 80% of the anticipated annual profit and their monthly drawings will be set by agreement accordingly.”[29]At 174 is an e-mail from Mr Smith dealing with what appears to have been a not entirely favourable final account for the year 2015. He ends the e-mail as follows: “Welcome to the uncertain world of the self-employed.” Page 5 of 10[30]At 177(e) is an e-mail of 9 September 2015 again with reference to the 2015 accounts. It makes a reference to an e-mail from the partnerships’ accountants which appears at the bottom of 177(e) and the top of 177(f).[31]The contents of Mr Smith’s e-mail are not entirely clear and neither Mr Smith nor Ms Millett could throw much light onto the subject save to say that the paragraph which read as follows: “Therefore the equity partners propose an ex-gratia payment for this year to Harpreet of £1,750 and to of Ella £1,000. The latter to take some account of Ella’s maternity absence. I must stress that this is a goodwill gesture and not a profit share as such as that has already been accounted for.”[32]It seems to me that it is likely that these ex-gratia payments were made either to top up either the profit share or the salary element. It clearly cast doubt on whether or not Ms Millett and Ms Grewal were genuinely taking the risk of profits being insufficient to pay their agreed monthly drawings.[33]In 2016 discussions began with the first Respondent with a view to the acquisition of Sheltons. This eventually led to the acquisition by the first Respondents of the trade of Sheltons on 1 October 2016.[34]It is common ground that Ms Millett became an employee for the first Respondent on that date.[35]Prior to that agreement it was acknowledged by both sides that there would be a relevant transfer within the meaning of Regulation 3 of TUPE Regulations 2006.[36]As a consequence “appropriate representatives” were appointed pursuant to Regulation 13(3)(b)(i) of the 2006 Regulations and Ms Millett was one of those appropriate representatives.[37]Both Mr Smith and Mr Kujawinski were aware that Ms Millett had been so appointed but the obvious contradiction between her appointment and their assertion that she was not at that point an employee (because she had ceased to be so once she acquired the status of partner in 2013) does not seem to have registered with them.[38]As with all such agreements there is a list of employees who are to transfer. The commercial agreement between the parties begins at page 259(m) and is dated 28 September 2016. Transferred employees are defined at page 259(o) as being those listed in Schedule 3. Schedule 3 appears at pages 259(x) and (y). At page 259(y) there is an entry relating to Ms Millett under the heading of salaried partners. Her salary is recorded at £2,480 per month with a car allowance of £3,000 and added is the following: “Actual drawings salaried £38,000 pa, plus 2.5%.” Page 6 of 10[39]My attention was drawn to an earlier such schedule at page 202 which describes Ms Millett as self-employed. There was a suggestion, though it was not put to Ms Millett that she was responsible for the change between page 202 and 259(y) ie the deletion of the term self-employed. I do not accept that suggestion.[40]As a consequence of that entry in the schedule of transferred employees Mr Hathaway quite understandably at the time of transfer believed that Ms Millett was an employee. His views were later changed by matters which I need not go into save insofar as they are described above.
Conclusions
[41]I am reminded of the old adage that a solicitor who acts for himself has a fool for a client. Ms Millett did not take advice and Mr Smith appears to have believed that any disagreement between the partners would be resolved by discussion between the partners.[42]He may well have been right had Sheltons continued as a legal entity. However they did not and the 3 equity partners ceased to have influence post the transfer to the first Respondents.[43]As to the law I begin with a case cited by Ms Wedderspoon, namely that of the decision of the Employment Appeal Tribunal in Kovats v TFO Management LLP and another [2009] ICR beginning at page 1140. Paragraph 17 of the decision reads as follows: “We agree with Whittaker and Machell: The Law of Limited Liability Partnerships Second Edition, paragraph 8.27:- “If the limited liability partnership was a partnership and a person was held out of the partner for the purposes of Section 14 of the Partnership Act 1890 but was actually an employee of the partnership rather than a partner, the same criteria which determined his status as between employee and partner will apply to determine whether or not he is an employee of the limited liability partnership.””[44]Thereafter as I indicated before Counsel began their closing submissions I intended to adopt paragraphs 23 to 31 inclusive of Mr Arnold’s skeleton argument of 7 January 2019 which had been adopted in turn by Mr Doherty.[45]Ms Wedderspoon drew me to other authorities including the case of Williamson and Soden Solicitors v Mr JJR Briers a decision of the Employment Appeal Tribunal UK EAT/0611/10/DM. That case also concerned the status of Mr Briers who was “a salaried partner” of the appellants in that case. There are some similarities with the facts of this case but as always no two cases are ever identical. There is never a magic key which unlocks the key to the status of the Claimant. As I have already indicated Mr Doherty has drawn to my attention the case of Morrison against Aberdein Considine and Co which again has similarities to the current facts but which drew a different conclusion to that in the Briers’s case. Page 7 of 10[46]Most status cases are difficult to determine and this is no exception. However adopting the words of Lady Wise in the Morrison case as follows: “Combining the concepts of a salaried employee and a profit sharing partner in one individual relationship with the firm results in the need for very careful scrutiny of all the circumstances where the status of that individual vis-à-vis the firm is unclear or is challenged as in the present case.”[47]I do not think that Mr Smith and Ms Millett were even ad idem as to what the agreement reached in 2013 meant. That however is not relevant. I must decide the issue on the basis of the facts found above. No single fact is determinative. However it seems to me that it was the intention of Mr Smith and his fellow partner that Ms Millett and Ms Grewal would have a guaranteed salary.[48]I am of the view that Ms Millett had the status of employee throughout her period with Sheltons, notwithstanding the agreement that was come to in 2013. It therefore follows that she has sufficient continuous employment to bring a claim of constructive unfair dismissal against the Respondent. Strikeout/Deposit[49]The relevant provisions are Regulations 37 and 39 of schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013: “Regulation 37:-(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds:- (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. Page 8 of 10(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above. Regulation 39:- (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order:- (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”[50]As to case law I again gratefully adopt the paragraphs 38 to 43 of Messrs Doherty/Arnold’s skeleton arguments as being the correct approach as set out in the relevant authorities.[51]The Respondent’s application is set out in an e-mail to the Tribunal of 13 November at page 117. Page 9 of 10[52]Turning first to detriments 1-14. In that regard Mr Doherty refers me to St Helens Metropolitan Borough Council v Derbyshire and Others to the effect that merely suffering mental distress is insufficient it would have to be reasonable in all the circumstances. Perhaps the most widely adopted definition is that which emerges from the case of Shamoon against the Chief Constable of Royal Ulster Constabulary [2003] ICR 337 to the effect that a detriment exists if:- “A reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.”[53]It seems to me that it would be necessary to hear the Claimant’s evidence in relation to detriments 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 14. They need to be heard in context and by a full Tribunal. Having said that it is clear that the documentary evidence is overwhelmingly in the Respondent’s favour. As to detriments 11, 12 and 13 these are matters that will be determined at the full hearing having regard to the decision I have reached as to the Claimant’s status. Direct pregnancy or maternity leave discrimination under Section 13 of the Equality Act 2010[54]As I understand the position Section 13 can apply where the less favourable treatment occurs out with the protected period as defined in Section 18(6) of the Equality Act 2010. See also subsection (7) of Section 18. The alleged breach of an express term of contract[55]As I understand Ms Wedderspoon’s submission and the pleading there is an allegation that the role of branch manager was taken away from the Claimant. Again this is a matter that will depend on the evidence. The Section 15 discrimination arising from disability[56]Again this is now to be determined in the light of my finding as to the Claimant’s status.[57]Any freestanding cause of action of disability detriment has been withdrawn by the Claimant.
Background
[58]The Claimant e-mailed Mr Robinson again at 9.43 am on 17 January 2018, saying that she had been made aware that meetings were taking place with staff at the Bulwell and Hucknall offices and queried why she had not been invited (p.765).[59]Mr Robinson made enquiries and responded to her within an hour (p.764). He confirmed that she could not work without a practicing certificate at either Bulwell or Hucknall. He also explained that Mr Hathaway was attending the offices with Mr Stubbs and catching up with staff, but there were no scheduled meetings or formal matters being discussed and, as such, a brief catch-up meeting would not justify a KIT day. He also stated that they were ‘not treating her less favourably ………’[60]Mr Stubbs and Mr Hathaway visited the Bulwell and Hucknall offices on 17 January 2018 as planned. Mr Hathaway was visiting both branches because the leases were due for renewal and Bulwell was not performing well in the Claimant’s absence. He wanted to get a feel for both offices and the locality to decide whether to renew the leases, move offices or merge the two. As part of his decision-making, Mr Hathaway also wanted to understand the level of referral work and walk-in work for each office, which he was entitled to do. He asked the secretaries about referral work, not just for the Claimant, but for the office generally as they were well informed to answer his questions. There was no link between the visit and the Claimant’s KIT day being vacated. The Claimant was not excluded as other members of staff such as Ms Skeen and Nicola Bradley were not in the office that day either. Further, a brief meeting was not sufficient to justify a KIT day.[61]There was nothing sinister in the Claimant not being able to work from Hucknall that day either. Ms Grewal, who could have facilitated the KIT day, was engaged in a meeting about her own personal terms and conditions of employment during that day. Claimant’s grievance – 10 January 2018[62]On 10 January 2018 at 16.58, the Claimant submitted a letter detailing ‘matters of concern’ (p.1042–1045).[63]Her concerns related to:• Her belief that her job title had been changed in that she was not referred to as ‘Branch Partner’;• A failure to award a pay rise in August 2017; and• Payment for KIT days – her belief was that she was entitled to full pay, in addition to her enhanced maternity pay for these days[64]The Claimant linked her treatment to the issue relating to her maternity terms in March 2017.[65]On 17 January 2018, Mr Robinson wrote to the Claimant acknowledging her letter, attaching the grievance procedure and confirming that her concerns would be dealt with informally, unless she would rather have them dealt with under the formal procedure (p.1046).[66]On 18 January 2018, he replied in detail to the Claimant’s letter of concern providing full explanations (p.1055-1058):[67]In respect of her job title, Mr Robinson confirmed that she was not a Branch Partner. He acknowledged that there had been discussions about her taking up the role, but it was never formalised. However, he confirmed that she could undertake the role if she wanted to – “Paul and the firm are supportive of you taking up a role as a Branch Partner, if this is a role you would like to fulfil. Your job title would then be Senior Associate Solicitor & Branch Partner.”[68]Mr Robinson explained why the Claimant had not been eligible for a pay rise and how her KIT payments had been calculated, in that her enhanced maternity pay had been offset against her normal pay for those days.[69]He also explained again why the KIT day on 17 January 2018 had been vacated and confirmed that whilst the issue of payment for KIT days was not finalised, “it would not have been prudent to carry out the KIT day without certainty on both sides”.[70]On 20 January 2018, the Claimant e-mailed Mr Robinson stating that she wished to cancel the rest of her KIT days because her ulcerative colitis had flared up, and that she would be raising a grievance. She also confirmed that she was in the process of instructing a solicitor (p.1135).[71]On 24 January 2018, the Claimant submitted a further grievance, albeit she treated it as an appeal (p.1058a-e). In addition to the matters raised in her grievance, she also complained about the non-renewal of her practicing certificate. She alleged that she was a victim of a “bullying campaign and discrimination following my pregnancy and maternity leave”.[72]Mr Robinson replied to the Claimant and, after an exchange of e-mails about whether her letter was to be treated as a formal grievance or an appeal, a hearing was arranged for 30 January 2018 (p.1059–1081). Mr Robinson reassured the Claimant that the Board wished to resolve her concerns.[73]Prior to the hearing, the Claimant had sight of her personnel file and became aware of a file note dated 24 August 2017 regarding her visit to the office that day. We will move onto that later. The Claimant alleged that the file was incomplete and that the file note was ‘further evidence of bullying and unfavourable treatment contrary to ss18 (2)(a) and/or s18(4) of the EqA” (p.1073). By the time the appeal hearing took place, the Claimant had already closed her mind to the possibility of resolving her concerns.[74]The hearing took place on 30 January 2018 and two sets of notes were produced – one set written by the Claimant’s companion, Ms Grewal (p.1081a–c), and one set by Ms McAllister (p.1081d–i).[75]The hearing was chaired by Ms Hathaway and, to summarise, all the issues raised by the Claimant were discussed and Ms Hathaway committed to investigate. It was during her investigation into the Claimant’s terms and conditions pre-transfer that her employment status arose, but we deal with the consequence of that later.[76]During the hearing, the Claimant also alleged that there was money being held on a client matter in the 1st Respondent’s client account. Ms Hathaway assured the Claimant that she would investigate as this had not been highlighted to her before.[77]Ms Hathaway wrote to the Claimant on 6 February 2018 with her findings and did not uphold her grievances (p. 1082–1087). However, in her investigations, she had explored the Claimant’s status at Sheltons. She had spoken with Ms Denise Archer, Practice Manager, who confirmed that the Claimant had not been on Sheltons’ payroll since 2013 because she had been a self-employed partner. There was no employee file for her either. Ms Hathaway subsequently took legal advice and the advice was that the Claimant had not in fact been an employee. Rather, she had been selfemployed and did not enjoy protection under TUPE. Accordingly, Ms Hathaway confirmed to the Claimant that the Respondent would be issuing her with a statement of terms and conditions of employment and confirmed a start date of employment of 1 October 2016.[78]The Claimant wrote to Ms Hathaway on 14 February 2018, giving the Respondent ‘one last attempt to rectify my serious grievances against the firm’ (p. 1099–1106). She attached thirteen exhibits to the letter. To all intents and purposes, this was an appeal against Ms Hathaway’s findings on 6 February 2018. She asked the Respondent to reply by 5pm on 23 February 2018. Ian Morris, Group Commercial Director, was appointed to investigate the appeal and he was an appropriate independent person to do so.[79]On 16 February 2018, the Claimant e-mailed Ms Archer, copying in Ms Hathaway and Mr Robinson, accusing her of theft – namely the theft of her cardigan and a prize at the Christmas party (p.1146). It was an unpleasant e-mail and its tone and purpose was malicious. Mr Robinson asked the Claimant if she wished to raise this as a grievance but also asked her not to include Ms Archer in any further correspondence in this regard (p.1145).[80]The Claimant confirmed that she did not wish to raise it as a grievance, but that the matters were ‘of a disciplinary nature, potentially gross misconduct ……. I thought you should be aware of these points as it may affect her credibility as a witness to the events documented on the 24th August” (p.1145). Mr Robinson replied that the 1st Respondent was treating the allegations as a formal complaint (p.1143). The Claimant was concerned that this would delay the response to her appeal but confirmed that she could provide witness statements regarding the ‘attempted theft’ (p.1143).[81]Mr Robinson asked the Claimant if there was anyone that the Respondent should speak to about the allegations (p1142). Ultimately however, having spoken with Ms Archer, both Mr Robinson and Ms Hathaway were satisfied that there had been no theft or dishonesty on her part and did not feel the need to speak to any further witnesses. The allegations were very distressing for Ms Archer.[82]On 20 February 2018, Ms Hathaway wrote to the Claimant in respect of the appeal and explained that the Respondent was seeking advice from senior employment counsel and, because of their existing commitments, would not be able to provide a full response to her appeal by 23 February 2018. She expected the 1st Respondent to be able to respond by 2 March 2018 and said that ‘it was important that the points you have raised are given the full and proper consideration they deserve’ (p.1150).[83]The Claimant responded saying that she was prepared to give the Firm until 5pm on 27 February 2018 and no longer (p.1155). The Respondent was not able to meet the deadline imposed by the Claimant and she resigned on 27 February 2018, citing the following reasons for her resignation:• It was unreasonable to expect her to wait any longer for the appeal outcome• The revised start date of 1 October 2016 was a breach of contract (detriment 11)• The alleged demotion from the position of Branch Partner (detriment 4)• She also alleged that the reason for her absence could be viewed by all staff on Staff Squared, which she considered disability related harassment under the Equality Act (p.1245 – 1246).[84]The Claimant resigned with ‘full contractual notice’ but did not state what length it was, or what her effective date of termination would be. The Claimant subsequently queried her entitlement to sick pay/full pay during her period of notice (p.1232 – 1233) and asked Ms Hathaway to confirm the length of notice she was required to give (p.1239c). The Claimant was of the view that she was entitled to full pay while absent due to sickness. She also threatened to report the 1st Respondent to the Solicitors Regulatory Authority due to ‘serious concerns’ she alleged she had about the Respondent’s cashflow but failed to provide any substance to the allegation (p.1237). Ms Hathaway responded and confirmed that Mr Robinson was double-checking the position on sick pay and her notice period.[85]Mr Robinson contacted the Claimant on 1 March 2018 with a breakdown of her entitlement to SSP in accordance with the Respondent’s absence policy (p.123–6). He confirmed that a deduction had been made from her pay in error and she was to let him know if she was not reimbursed. In response, the Claimant lashed out at Mr Robinson doubting that he was a qualified lawyer, calling him incompetent, saying that he should be ashamed of his behaviour and that he was a disgrace to the profession (p.1235). She subsequently apologised and said that she was not well and that steroids she was taking (for her ulcerative colitis) had an impact on her causing a psychosis. Mr Robinson accepted her apology (p.1234).[86]On 1 March 2018, Ms Hathaway took advice from counsel on the Claimant’s notice period in the absence of employment terms. The advice was that there was nothing in the partnership agreement about notice, other than a 6-month absence leading to expulsion (p1238). The 1st Respondent decided that in the absence of terms, they should look at the notice period of others in the same position. They concluded that a one-month notice period was reasonable as all other employees, bar one, transferred to the Respondent on that term.[87]On 2 March 2018, the Respondent provided its response to the Claimant’s appeal but did not uphold it (p.1187).[88]On 6 March 2018, Mr Robinson formally acknowledged the Claimant’s resignation, advised that her effective date of termination was 6 March 2018 and also that her outstanding annual leave would need to be taken during the notice period in accordance with the 1st Respondent’s policy (p.1259).[89]The Claimant replied to Mr Robinson disputing the requirement to take holiday in the notice period. She asked that her holiday be paid in addition to her notice period, otherwise she would name Mr Robinson as an individual Respondent in this claim (p. 1262). Mr Robinson replied confirming that “he could not, in good conscience, seek to overturn a policy of the firm, that is in no way discriminatory, in an attempt to counter an onerous threat to bring proceedings against me” (p.1261). The Claimant wrote to Mr Robinson again on 7 March 2018 confirming her disagreement at the position (p.1265). Detriment 9 - redundancy matrix[90]On or around 17 January 2018, the Respondent commenced redundancy consultations with two administrative staff. The Claimant was on maternity leave at the time and there was no obligation on the Respondent to include her. The secretaries in question were employed by the 1st Respondent, not the Claimant.[91]Mr Stubbs asked Ms Skeen to complete a redundancy matrix for the staff as she had the day-to-day contact with them. However, she had been finding the whole situation very stressful and was unable to provide the information he required. Accordingly, he contacted the Claimant on 25 January 2018 and asked if she wanted to take part in the matrix assessment but confirmed that she was not obligated to (p.1024). The Claimant willingly completed and returned the assessments that same day (p.1208). She was not excluded from the process. The Claimant was given the opportunity to be involved, if she so chose, and was offered a KIT day in return (p.1203/4) which she declined (p.1210).[92]That same day, Ms Skeen e-mailed Mr Stubbs about the redundancies, acknowledging that she had not been able to get her view on the matter across to him as well as she could have done. She also said that because the Claimant had not ‘had a voice’ in the process, she felt that she needed to ‘speak up on her behalf’ (p.1124). This e-mail was not a request that the Claimant be contacted and involved in the process. Regardless, Mr Stubbs had already contacted the Claimant prior to receiving this e-mail.[93]The Claimant did not complain that she had not been consulted and Mr Stubbs made proactive contact after realising that Ms Skeen could not help in the way he had hoped. Detriment 10 - file note[94]The Claimant visited the office on 24 August 2018 with her new baby. During this visit, the Claimant went to an upstairs room with other members of staff. Ms Archer overheard the Claimant asking them if they were coping with the Respondent, telling them ‘not to worry’ and suggesting that she might be leaving to start her own firm. Ms Archer felt that her comments had ‘brought a further negative mood to an already low office’. After overhearing this, Ms Archer informed Mr Stubbs and he felt it necessary to make a note and place it on her file.[95]There was a genuine friendship between Mr Stubbs and the Claimant, and he held her in high esteem. However, he was still her line manager and his note simply reflected what Ms Archer told him after her visit. In the back of his mind he recalled similar behaviour from the Claimant in the past (although he could not recollect exactly what, and when) and felt that it was worth noting and something that he could not ignore. The note was not false or fabricated, nor was it to be used as ‘ammunition’ to get her to leave. The Claimant herself had placed notes on other employees’ files so this was not uncommon practice (p.1040). Detriment 11 - Change in start date[96]The Respondent changed the Claimant’s start date after receiving Counsel’s advice that she was not an employee at Sheltons (p.1082). As such, after the transfer the 1st Respondent was of the view that her start date for employment purposes was 1 October 2016. At the time of the transfer, it was also the Claimant’s understanding that she was self-employed pre-transfer (e.g. p.256). Detriments 12 & 13 - Sick pay and notice pay[97]The application of the 1st Respondent’s sick pay policy flowed from Counsel’s advice that the Claimant was not an employee prior to the transfer in October 2016. As such, she was paid on the basis that her employment began on 1 October 2016, rather than including her prior service at Sheltons.[98]The application of a one-month notice period also flowed from this advice. In the absence of contractual terms for the Claimant, the Respondent felt that one month was a reasonable notice period and was in accordance with other transferring employees, bar one. Detriment 14 - SRA reporting[99]The first call to the SRA was by Ms Hathaway on 22 February 2018 about the Claimant’s employment status/tax position (p.1357) - she was completing her tax returns on a self-employed basis but was also asserting to the 1st Respondent that she was an employee. The Claimant was not named in the call, and Ms Hathaway was seeking guidance on her concerns and what steps she ought to take, the Claimant was either self-employed or not. She could not have it both ways and one had to be incorrect. No formal report was made at that time.[100]Ms Hathaway sought further guidance on 5 March 2018 (p.1358). By then, the Claimant had accused Ms Archer of theft, been abusive in an e-mail to Mr Robinson and had contacted a client whist she was on maternity leave from her personal e-mail account. This was in addition to her tax status and the Respondents now believed that the Claimant had undertaken client work on her KIT day without a practicing certificate. At this point, no formal report had been made, but Ms Hathaway had to consider the guidance received from the SRA, which was that they had an obligation to report the Claimant’s conduct.[101]Ms Hathaway e-mailed Mr Stubbs on 5 March 2018 to update him on the advice received (p.1267). Both Ms Hathaway and Mr Stubbs were reluctant to report the Claimant, particularly considering her admission about the steroid induced psychosis. However, it was not their decision to make any more and they were obligated to make a report. Accordingly, Ms Hathaway made her formal report by way of e-mail to the SRA on 7 March 2018 (p.1270). It set out the concerns about the Claimant’s conduct and made it clear that the Claimant was unwell.[102]Ms Hathaway contacted the SRA again on 13 March 2018 to advise that the Claimant had issued her claim (p.1269).[103]It subsequently came to the Respondents’ attention that the Claimant had set up her own practice, Ella Millet Legal, but they could not see that it was a registered. Ms Hathaway was concerned about the implication of transferring client files from the 1st Respondent to the Claimant when her practice was not regulated. She updated the SRA on 14 August 2018 confirming that the matter had been left (in part) because the Claimant was not in practice, but she now understood that the Claimant had set up Ella Millet Legal (p.1278). She reiterated that the Respondent held the same concerns and wanted to understand any issues in relation to transferring files to the Claimant’s new practice.[104]Ms Hathaway also e-mailed Ms McAllister later that day to enquire if any additional measures should be put in place in relation to the transfer of files to the Claimant’s new practice (p.1273). The Respondent was naturally concerned about any exposure in sending files to an unregistered practice. This was a warranted concern, rather than a desire to get the Claimant ‘into trouble’.[105]Ms Hathaway had not received a response from the SRA, so she chased a reply on 10 September 2018 and was asked to send her e-mail again (p.1277). Whilst Ms Hathaway was mindful that her report may lead to a further allegation of victimisation by the Claimant, she accepted that her obligations to the SRA outweighed any resultant legal claim. The Respondent raised genuine concerns in the context of a highly regulated profession.[106]The SRA wrote to Ms Hathaway on 11 September 2018 confirming that it would look into the matter (p.1293). Ms Hathaway forwarded this letter to Ms McAllister and on 12 September 2018 the offices were asked to pass any file requests to Compliance (p.1297 & 298a). The Respondent put protective measures in place and there was nothing untoward in its actions.[107]On 17 September 2018, Ms Hathaway asked the SRA if the 1st Respondent could release files to the Claimant whilst its enquiries were ongoing. The SRA recommended that she call the ethics line (p.1299) which Ms McAllister duly did. The SRA also confirmed that it would be contacting the Claimant to ask questions about the work she was undertaking (p.1300). The SRA promptly investigated the matter resulting in a phone call to the Claimant. Following this call, the SRA determined that no action needed to be taken and this brought the matter to an end (p.1301b).[108]The 1st Respondent subsequently became aware that the SRA had disclosed the contents of its report to the Claimant. This was concerning because it had understood that it would not be disclosed, rather it would be used as the basis for any investigation by the SRA. This was an understandable concern in light of the litigation by the Claimant against the Respondents. The law Constructive dismissal[109]Section 95(1)(c) which provides that an employee is dismissed by his employer if: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[110]In Western Excavating (ECC) Ltd v Sharp 1978 ICR 221 it was held that in order to claim constructive dismissal an employee must establish:(i) that there was a fundamental breach of contract on the part of the employer or a course of conduct on the employer’s part that cumulatively amounted to a fundamental breach entitling the employee to resign, (whether or not one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach); Whether there is breach of contract, having regard to the impact of the employer’s behaviour on the employee (rather than what the employer intended) must be viewed objectively: Nottinghamshire CC v Meikle [2005] ICR 1.(ii) that the breach caused the employee to resign – or was the last in a series of events which was the last straw; (an employee may have multiple reasons which play a part in the decision to resign from their position). The fact they do so will not prevent them from being able to plead constructive unfair dismissal, as long as it can be shown that they at least partially resigned in response to conduct which was a material breach of contract; see Logan v Celyyn House UKEAT/2012/0069. Indeed, once a repudiatory breach is established if the employee leaves and even if he may have done so for a whole host of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon; see: Wright v North Ayrshire Council EATS/0017/13/BI; .and(iii) that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[111]All contracts of employment contain an implied term that an employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Malik v BCCI [1997] IRLR 462. A breach of this term will inevitably be a fundamental breach of contract; see Morrow v Safeway Stores plc [2002] IRLR 9.[112]We have also had regard to Buckland v Bournemouth University Higher Education Committee [2010] IRLR 445, CA; Kaur Teaching Hospital NHS Trust [2018] EWCA Civ; Omilaju v Waltham Forest London Borough Council [2005] 1 ICR 481, CA; and RDF Media Group v Clements [2008] IRLR207, HCQBD. Discrimination Direct discrimination[113]Section 13(1) states: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[114]Section 23(1) states: “(1) On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.”[115]It is not necessary for a Claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person, as long as the circumstances are not materially different. Pregnancy and Maternity Discrimination[116]Section 18 EQA provides: “(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity. (2) A person(a) (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably— (a) because of the pregnancy, or(b) because of illness suffered by her as a result of it. (3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave. (4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave. (5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period). (6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy. (7) Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as— (a) it is in the protected period in relation to her and is for a reason mentioned in paragraph (a) or (b) of subsection (2), or (b) it is for a reason mentioned in subsection (3) or (4).” Automatically unfair dismissal: pregnancy and maternity[117]Section 99 ERA: Leave for family reasons provides:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if — (a) the reason or principal reason for the dismissal is of a prescribed kind, or (b) the dismissal takes place in prescribed circumstances.(2) In this section “prescribed” means prescribed by regulations made by the Secretary of State.(3) A reason or set of circumstances prescribed under this section must relate to— (a) pregnancy, childbirth or maternity (b) ordinary, compulsory or additional maternity leave.[118]Regulation 20 MPL Regs provides: “(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if—(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), (3) The kinds of reason referred to in paragraphs (1) and (2) are reasons connected with — (a) the pregnancy of the employee;(b) the fact that the employee has given birth to a child; (d) the fact that she took, sought to take or availed herself of the benefits of, ordinary maternity leave or additional maternity leave;” Victimisation[119]Section 27 of the EQA provides: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.” Discrimination arising from disability[120]Section 15 of the EQA states: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if – (a) A treats B unfavourably because of something arises in consequences of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Sub-Section (1) does not apply if A shows that A did not now, and could not reasonably have been expected to know, that B had the disability.” Suffering a detriment for family reasons:[121]Section 47(c) of the ERA provides: “(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason. (2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to—(a) pregnancy, childbirth or maternity,(b) ordinary, compulsory or additional maternity leave,”[122]Regulation 19 of the MPL Regs provides: “(1) An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2). (2) The reasons referred to in paragraph (1) are that the employee—(a) is pregnant;(b) has given birth to a child; (d) took, sought to take or availed herself of the benefits of, ordinary maternity leave; (e) took or sought to take— (i) additional maternity leave; (3) For the purposes of paragraph (2)(d), a woman avails herself of the benefits of ordinary maternity leave if, during her ordinary maternity leave period, she avails herself of the benefit of any of the terms and conditions of her employment preserved by section 71 of the 1996 Act during that period. Case Law - discrimination[123]We have had regard to the following cases: Bahl v Law Society [2004] IRLR 799, CA; and Chief Constable of Kent Constabulary v Bowler UKEAT/0214/16/RN. Nagarajan v London Regional Transport [1999] IRLR 572, HL; Chief Constable of West Yorkshire v Khan [2001] ICR 1065, HL; Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; R (on the application of E) v The Governing Body of JFS and the Admissions Appeal Panel of JFS & Others [2010] IRLR 136, SC; Glasgow City Council v Zafar [1998] ICR 120; Quereshi-v- London Borough of Newham Burden of proof[124]Section 136 EQA 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 sub-section (2) does not apply if A shows that A did not contravene the provision”.[125]We have had regard to the following cases: Igen Limited v Wong [2005] IRLR 258,; Madarassy v Nomura International PLC [2007] ICR 867Fraser v University of Leicester UKEAT/0155/13/DM; Hewage v Grampian Health Board [2012] IRLR 870, SC and Amnesty International v Ahmed [2009] ICR 450 EAT. Unauthorised deductions from wages[126]Section 13 ERA states: “(1) An employer shall not make a deduction from wages of a worker employed by him unless—(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) the worker has previously signified in writing his agreement or consent to the making of the deduction. (2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.” Breach of contract[127]Article 3 of The Employment Tribunals Extension of Jurisdiction Order 1994 (“the Order”) provides that proceedings for breach of contract may be brought before a Tribunal in respect of a claim for damages or any other sum (other than a claim for personal injuries and other excluded claims) where the claim arises or is outstanding on the termination of the employee’s employment.[128]A claim for notice pay is a claim for breach of contract; Delaney v Staples 1992 ICR 483 HL. Submissions[129]The Tribunal had the benefit of written submissions from Ms Wedderspoon and Mr Arnold, together with further oral submissions which were helpful. They are not set out in detail but both parties can be assured that the Tribunal has considered all the points made and all the authorities relied upon, even where no specific reference is made to them.[130]Ms Wedderspoon submitted that the Claimant had been subjected to discrimination continuing over a period, such discrimination being detriments 1 – 14 and culminating in her constructive dismissal. Mr Arnold submitted that all heads of claim must fail. Conclusions Detriment 1 – disputing the Claimant’s maternity entitlement[131]The Claimant alleged that when she contacted Ms Phillips to enquire about her maternity pay, Ms Phillips asked her talk to Mr Hathaway in an ‘awkward manner’. We were satisfied, in the circumstances, that it quite natural that Ms Phillips would ask the Claimant to speak to Mr Hathaway directly, in light of the fact that it was an enhanced policy and she would not likely have authority to confirm its terms. We were not persuaded that this was done in an awkward manner.[132]When the Claimant phoned Mr Hathaway, he was at home decorating with his children around. We found his version of that call to be entirely credible in that he could not recall the maternity provisions off the top of his head and suggested that they meet when he was back in the office. We did not accept the Claimant’s evidence that Mr Hathaway said that the provisions had applied to Ms Grewal because she was on maternity leave at the time of the transfer, but not to the Claimant. Mr Hathaway’s evidence was supported by the Claimant’s e-mail to him the next morning on saying “I would put money on it that George simply forwarded this onto you so you should have been aware of the terms” (p.724)[133]We did not doubt that the Claimant was anxious when Mr Hathaway was not in a position confirm the position to her on the call, particularly when she was going on annual leave the following week. This prompted the e-mail the next morning. We were surprised that, if the Claimant was as anxious as she subsequently claimed, that she did not mention it all that same evening when they were both attending a client event. We were satisfied that there was no intention on Mr Hathaway’s behalf to deprive the Claimant of her maternity payment, or that he said on the call that she was not entitled to it. The contemporaneous e-mails simply do not support this allegation.[134]We agreed with Mr Arnold’s submission that the Claimant caught Mr Hathaway off guard, and he could not recall what had been agreed off the top of his head – this was the reason why he could not put her mind at rest there and then. There was no real sense of urgency from the Claimant thereafter and the Respondent/s held a meeting with her in the first week after her return from annual leave. It confirmed that the Claimant would have the benefit of the enhanced terms and the matter was resolved amicably and quickly.[135]Viewed objectively, there was no reason for the Claimant to have felt side-lined and worried about what was going to happen during or after her maternity leave as she alleged. Accordingly, we were satisfied that there had been no detriment, discrimination or any act that could amount to a breach of contract - fundamental, or Detriment 2 – failure to provide a pay increase[136]When the Respondent took the decision to make pay increases in the summer of 2017, it came up with objective criteria to be applied across the board. We were satisfied that the criteria were applied objectively and there was no link between their application and the Claimant’s pregnancy or maternity leave. On the desktop exercise, the Claimant was within the pay scale for her grade and had received an increase in pay in November 2016 which had been recorded on Staff Squared. The Claimant argued that the pay increase was a ‘rectification’ of her pay in that the Respondent had underpaid her in comparison to her salary at Sheltons. However, we were satisfied that she was paid more by the Respondent than by Sheltons after her salary was reviewed. There was no failure to provide a pay increase and the criteria were applied fairly. We were satisfied with the Respondent’s evidence on this point and that there had been no detriment, discrimination or any act that could amount to a breach of contract - fundamental, or otherwise. Detriment 3[137]The Claimant commenced her maternity leave on 30 June 2017. The bulk renewal of practicing certificates takes place in October of each year. The Claimant was on maternity leave in October 2017. We were satisfied that the Claimant was not included in the bulk renewal process because she was not working – the Claimant conceded in evidence that she did not intend to work whilst she was on leave. Whilst the reason for her not working was because she was on maternity leave, the ‘failure’ to renew her certificate was not because she was on maternity leave. The fact that the Claimant was on maternity leave was simply the occasion for the non-renewal, not the cause. We were satisfied with the Respondent’s evidence that other solicitors who were not working were also excluded from the process, examples being solicitors who were on long-term jury service and long-term sickness absence.[138]The Claimant was not unable to work KIT days without a practicing certificate, she was only unable to undertake regulated work. She successfully worked a number of KIT days and 17th January 2018 KIT was simply postponed. The Claimant cancelled the remaining KIT days thereafter herself. Accordingly, we were satisfied that there had been no detriment, discrimination or any act that could amount to a breach of contract - fundamental, or otherwise. Detriment 4 – branch partner[139]The Claimant’s claim that she was demoted from the role of Branch Partner was muddled. In her grievance and ET1 she alleged that she had been demoted from the role of Branch Partner, but this was subsequently referred to as a demotion from the role of Branch Manager. At the hearing, the Claimant said that the two roles were ‘interchangeable’ but there was no evidence that a role of Branch Manager existed whilst she was employed by the Respondent. We were satisfied that the role of Branch Partner was not introduced until December 2016. It was a formal job title with specific responsibilities, above and beyond the Claimant’s existing responsibilities, and carried additional remuneration. We were satisfied that she was not demoted from the role of Branch Manager because she was not appointed to the role in the first place. It follows, therefore, that she was not demoted as a result of going on maternity leave. At no point did her existing managerial duties change, nor was there any action on the part of the Respondent that could lead the Claimant to believe that they had, or that they would. On the contrary, when the Claimant raised her grievance, the Respondent offered her the opportunity to take the role of Branch Partner. The Claimant said was degrading but this made no sense – it was an affirmation that the Respondent held her in high regard. Viewed objectively, we were satisfied that there was any reduction in the Claimant’s status, or that there was any reason for to feel that she was demeaned in the eyes of her colleagues as she alleged.[140]Accordingly, we were satisfied that there had been no detriment, discrimination or any act that could amount to a breach of contract - fundamental, or otherwise. Detriment 5 – speaking to the Claimant’s colleagues about her not returning from maternity leave[141]We noted that the Claimant’s case was that the 3rd Respondent ‘alluded’ to the fact that she might not return from maternity leave. There was simply no evidence that the he spoke about her in the way she alleged.[142]This allegation arose from the conversation between Mr Stubbs and Ms Skeen. Ms Skeen’s billing had become a matter of concern and we were satisfied that any comments that Mr Stubbs made were in the context of Ms Skeen’s billing, in that she should not pin her hopes on the Claimant’s return. We were satisfied that the Claimant was not demeaned or made to feel uncomfortable in her colleagues’ eyes. Further, we did not believe that this showed a stereotypical view. We were satisfied that firstly, Mr Stubbs did not ‘allude’ to the fact that the Claimant might not return from maternity leave and, secondly, the his conversation with Ms Skeen was not in any way linked to the Claimant’s grievance. As such, these comments were not ‘unfavourable comments’, nor were they made because the Claimant was on maternity leave.[143]Accordingly, we were satisfied that there had been no detriment, discrimination or any act that could amount to a breach of contract - fundamental, or otherwise. Detriment 6 – cancelling KIT day[144]The discussions about the Claimant’s lack of practicing certificate and the commerciality of KIT days had taken place before the Claimant submitted her grievance on 10 January 2018, so we were satisfied that they were not linked.[145]We were also satisfied that the KIT day being vacated was not because the Claimant had been pregnant or taken maternity leave. The Claimant had already undertaken KIT days on 28 November 2017, 30 November 2017, 5 December 2017, 7 December 2017 and 10 January 2018. It was only on 16 January 2018 that the Respondent/s realised Ms Skeen was not going to be in the office, meaning the Claimant would not have been able to undertake regulated work in the absence of a practicing certificate. If she had done, she would have committed a criminal offence. Any regulated work could not be facilitated by Mr Stubbs or in the Hucknall office that day and the KIT day was simply postponed, not cancelled. The reason for vacating the KIT day was a regulatory issue and not because the Claimant had been pregnant, taken maternity leave or raised a grievance. The Claimant had already done several KIT days and, viewed objectively, we did not find that the Claimant was unable to work or get orientated to work whilst on maternity leave.[146]Accordingly, we were satisfied that there had been no detriment, discrimination, Detriment 7 – failure to have workplace meetings[147]We were satisfied that the Claimant was not excluded from workplace meetings on 17 January 2018 because there were no meetings to be excluded from. Mr Hathaway and Mr Stubbs carried out fact finding visits to the Bulwell and Hucknall branches in their capacity of senior management to make decisions on their future. There was no obligation or need to involve the Claimant whist she was on maternity leave. Other solicitors were also out of the office on that day.[148]We were further satisfied that it was not in Mr Robinson’s mind to prevent Claimant from seeing Mr Hathaway and Mr Stubbs. There was no evidence to support the assertion that there was a deliberate attempt to keep her out of the office for any reason, or that the Claimant was unable to work and get orientated to work whilst on maternity leave.[149]Accordingly, we were satisfied that there had been no detriment, discrimination, Detriment 8 – asking the Claimant’s secretaries about the Claimant’s contacts/referrers[150]The Claimant alleged that the 2nd and 3rd Respondents ‘quizzed’ her secretaries about who referred work to her and the name of her referrers. In her view, this was in order to side-line her in the hope that she would leave, and the Respondents could contact those referrers for work. We were satisfied that Mr Hathaway was perfectly entitled to question the secretaries on sources of work as they were well placed to assist. The information he was seeking was not the Claimant’s information – he was asking standard business questions that a business owner would ask when visiting their premises, particularly in the context of considering the renewal of leases or a merger.[151]We agreed with Mr Arnold’s submission that this part of her claim made no sense. Even the Claimant accepted that it would not make sense to get rid of her and hire someone else to do the work. The Respondents considered the Claimant integral to the success of the Bulwell branch. Viewed objectively, there was no reason for the Claimant to feel demeaned in the eyes of her colleagues, feel side-lined or be worried that work would be removed from her. We were satisfied that there was no link with the Claimant being pregnant, taking maternity leave or to her raising a grievance.[152]Accordingly, we were satisfied that there had been no detriment, discrimination, Detriment 9 – failure to include the Claimant in redundancy consultation[153]The chronology in the Claimant’s pleaded case was not supported by the documents. We reminded ourselves that the secretaries were employed by the 1st Respondent, not the Claimant. We agreed with Mr Arnold’s submission that the right to be consulted belonged to those secretaries, not their managers. Ms Skeen had been working with them for the previous seven/eight months and should have been well placed to assist Mr Stubbs. However, Mr Stubbs realised that Ms Skeen could not provide the insight he needed so he contacted the Claimant and asked for her input if she was willing, mindful that she was on maternity leave.[154]Viewed objectively, there was no reason for the Claimant to feel demeaned in the eyes of her colleagues or that there had been a reduction in her status. We were satisfied that there was no link to her raising a grievance.[155]Accordingly, we were satisfied that there had been no detriment, discrimination, Detriment 10 – file note[156]It was the Claimant’s case that the file note dated 24 August 2017 was ‘completely false and fabricated’. We accepted that the Claimant was upset when she saw it but were satisfied that Mr Stubbs acted properly in recording Ms Archer’s reflections on her visit to the office. There was a practice of notes being placed on files and the Claimant had done this herself. She gave evidence that she would tell employees when she placed a note on an employee’s file, but this was contradicted by her own witness, Ms Harrison. Ms Archer also gave evidence that the Claimant told her about a note on her file but would not let her see the contents.[157]We found no evidence to support the assertion that the note was completely false and fabricated, and it follows, therefore, that it was not an exaggerated and distorted complaint, nor did it provide an inaccurate impression of the Claimant. There was no consequence of the file note and no action was taken.[158]We were satisfied that there was no link between the file note the Claimant’s grievance and that there had been no detriment, discrimination, victimisation or any act that could amount to a breach of contract - fundamental, or otherwise Detriment 11 – changing the Claimant’s start date[159]We were satisfied that the Claimant’s start date was amended following advice from Counsel in the course of the grievance investigations. It was not because the Claimant had been pregnant, taken maternity leave or because she had raised a grievance. We were also satisfied that it was not done to prevent the Claimant from having the requisite service to bring an unfair dismissal claim.[160]Accordingly, we were satisfied that there had been no detriment, discrimination, Detriment 12 – failure to pay sick pay[161]As above, we were satisfied that the Claimant’s start date was amended following advice from Counsel in the course of the grievance investigations. Consequently, the Respondent applied the sick pay policy in line with the start date. It was not because the Claimant had been pregnant, was on maternity leave or because she had raised a grievance. We were also satisfied that it was not because of her disability or something arising in consequence of her disability.[162]Accordingly, we were satisfied that there had been no detriment, discrimination,[163]For completeness, the Respondent satisfied payment of outstanding sick pay prior to this hearing. Detriment 13 – failure to pay notice pay[164]After the Claimant resigned, the Respondent paid the Claimant for one month’s notice which incorporated her entitlement to outstanding holiday pay. In the absence of any recorded employment terms at Sheltons, the Respondents decided that a one-month notice period was reasonable because other solicitors had transferred on this term. The Respondent applied its policy of requiring employees to take accrued but untaken annual leave during the notice period.[165]We accepted Mr Arnold’s argument that a reasonable notice period should be construed in the absence of any express term. We address our findings on what we believed to be a reasonable notice period below.[166]However, we were satisfied that the decision to pay one month’s notice was made in consequence of the absence of employment terms, rather than because of the Claimant’s pregnancy or maternity leave.[167]Accordingly, we did not find that there had been any detriment, discrimination, victimisation or any act that could amount to a breach of contract fundamental, or Detriment 14 – referring the Claimant to the SRA[168]We were satisfied that the 1st Respondent acted properly in accordance with its regulatory obligations in reporting the Claimant to the SRA. It carefully considered the situation and took advice initially before deciding whether to report. It held genuine concerns about the Claimant’s behaviour which ultimately, it was duty-bound to report. The 1st Respondent was aware that the reports would expose it to further litigation, but its regulatory obligations outweighed the consequence of litigation.[169]In the initial report, Ms Hathaway stressed that Claimant was unwell which demonstrated a level of care in what was at that point a strained relationship. It was factual and measured and we were satisfied that the reports and resulting investigation did not amount to victimisation. Summary of discrimination claims Pregnancy and maternity discrimination. s18 EQA[170]We were satisfied that the Claimant was not treated unfavourably during the protected period or by a decision taken in the protected period, because of her pregnancy or because she exercised her right to maternity leave by detriments 1-13. Direct pregnancy or maternity leave (and sex post the protected period) discrimination – s.13 EQA[171]We were satisfied that the Claimant was not less favourably treated than a relevant comparator by detriments 12-13 because of her pregnancy and/or maternity leave or her sex Leave for family and domestic reasons (s.47c ERA)/Reg 19 MPLR 1996[172]We were satisfied that the Claimant was not subject to detriments 6 -14 done for a reason relating to her pregnancy and maternity leave. Victimisation – s27[173]We were satisfied that the Respondent did not subject the Claimant to detriments 6 - 14 because she had done a protected act. Direct disability discrimination[174]We were satisfied that the Claimant was not treated less favourably than a relevant hypothetical comparator by not receiving sick pay whilst she was off work (detriment 12) Discrimination arising from disability – s.15[175]We were satisfied that the Claimant was not treated unfavourably because of something arising in consequence of her disability, namely that she was not paid sick pay (detriment 12) Breach of contract – notice pay[176]In reaching our conclusion in this element of the claim we considered the following:• We were satisfied that a six-month notice period was not applicable to the Claimant, nor was it reasonable;• The Claimant was considered an integral part of the rationale for acquiring the trade of Sheltons;• She was considered an integral part of the future of the Bulwell branch and the 1st Respondent generally;• She was held in high regard by the Respondents and its three key witnesses were vociferous in just how highly they regarded her;• Ms Grewal negotiated a three-month notice period;• There was no documentary evidence before us that other employees who transferred to the Respondent were all, bar one, on a one-month notice period. The only document in the bundle was a sample Sheltons’ contact containing a mutual three- month notice period; and• Our own knowledge.[177]In light of these considerations, we concluded that a three-month notice period was a reasonable one. As such, there has been a breach of contract on the part of the Respondent to the extent that a further two months’ notice pay was due to the Claimant. We were, however, satisfied that the Respondent was entitled to require the Claimant to take any outstanding untaken holiday during her notice period, so she is not entitled to any additional recovery in this regard. Breach of contract/unauthorised deductions of wages - holiday pay and sick pay[178]We were satisfied that the Respondent has a lawful policy of requiring employees who had served notice to take any outstanding leave during the notice period. Accordingly, there was no breach of contract or unauthorised deduction from the Claimant’s wages in respect of holiday pay.[179]The Claimant’s claim in respect of outstanding sick pay was satisfied before the start of the hearing. Constructive dismissal[180]The Claimant’s case in this regard was contradictory. In her in ET1, she claimed that the last straw was the failure to pay sick pay. However, she had not been paid at this point, so we agreed with Mr Arnold that it could not have been the last straw. The Claimant gave evidence that a friend drafted the ET1, but it obviously had the benefit of legal input and was submitted on her behalf by solicitors.[181]The final straw subsequently relied on by the Claimant was the Respondent failing to deal with her grievance appeal within the timeframe imposed by her. We were satisfied that her imposed deadline was unreasonable but, in any event, the Respondent kept her updated on the delay which was reasonable behaviour on its behalf. Further, Ian Morris was genuinely independent, and they were treating her concerns seriously.[182]We also noted that the Claimant’s resignation letter only mentioned detriments 4 and 11 and not any of the other events subsequently relied on. There was no mention of the KIT day on 17 January 2018, Mr Hathaway’s visit to the offices on the same date or the redundancy consultation. These matters featured heavily in this hearing and we would have expected to see these mentioned in the resignation letter, even if only briefly, if the Claimant considered them to be fundamental breaches of her contract of employment. The Claimant is very articulate and had no issue voicing her concerns with the Respondent.[183]We were satisfied that the Respondents were genuinely concerned to resolve the Claimant’s concerns, regardless of their merit. However, the Claimant had closed her mind to resolution as early as January 2018.[184]Conversely, there were several examples of unreasonable behaviour on the Claimant’s part where she would act in a manner calculated to cause to distress. We saw this in the accusation that Ms Archer had committed theft, lashing out at Mr Robinson threatening to name him as a Respondent if he failed to make the payment she wanted and threatening to report the Respondent/s to the SRA.[185]We were satisfied that none of the acts relied on by the Claimant, either singularly, collectively or cumulatively amounted to a breach of an express or implied term of the Claimant’s contract of employment entitling her to resign and claim constructive dismissal. Accordingly, she was not dismissed and her constructive dismissal claim fails.[186]It follows from this that because she was not dismissed, she was not dismissed for the purposes of s.99 ERA Limitation[187]Our findings on limitation were academic considering our findings on liability. However, for completeness we would have found that the acts relied on by the Claimant amounted to a series of distinct acts, rather than continuing discrimination extending over a period. We agreed that any acts occurring on or before 23 January 2018 were, in principle, out of time.[188]We considered the chronology and noted that in relation to detriment 1, the Claimant had taken legal advice and set out the possible claims she may have to the 1st Respondent (p.426). The Claimant was not suffering ill health to the extent that she was post-maternity leave, she was also able to correspond with and meet the Respondent to discuss her issues. As such, we would not have found that it was just and equitable to extend time in relation to this element of her claim.[189]In deciding whether it would have been just and equitable to extend time in relation to the other acts complained of, we were mindful that the Claimant had a period of maternity leave and subsequent ill health and, as such, we would have found it just and equitable to extend time. Application for costs[190]At the conclusion of the hearing the Respondents made an application for their costs. They asserted that:• The Claimant had behaved unreasonably in bringing the proceedings and/or conducting the proceedings within the meaning of Rule 76(1)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”); and• Such claims had no reasonable prospects of success within the meaning of Rule 76(1)(b).[191]In summary, Mr Arnold submitted that the Claimant should have stood back from the case and assessed its merits. If she had, she would not have pursued it. He confirmed that no offers or counter-offers were made by either side in open or ‘without prejudice save as to costs’ correspondence, or through ACAS He also submitted that the Claimant’s schedule of loss was unreasonably high, without being tempered by a sum in mitigation.[192]Ms Wedderspoon reminded us that costs are the exception rather than the rule. She submitted that the Tribunal had simply preferred the Respondent’s evidence and that we had not made any findings of dishonesty. The Claimant was not in good mental health after she left the 1st Respondent’s employment and she genuinely believed in the merits of her case. Further, the Respondents had previously made an application to strike out the claim, or that the Claimant should be required to pay a deposit as a condition of continuing with the claim, at the Preliminary Hearing but Employment Judge Blackwell declined to do either.
The law
[193]Rule 76 of the Rules provide: “(1) A Tribunal may make a costs order……., and shall consider whether to do so, where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.[194]Mr Arnold referred us to the following cases: Gee v Shell (UK) Limited [2002] EWCA Civ 1479; Npower Yorkshire Ltd v Daly EAT/0842/04; Vaughan v London Borough of Lewisham [2013] IRLR 713, EAT: Barnsley Metropolitan Council v Yerrakalva [2012] IRLR 78, CA; and Power v Panasonic UKEAT/0439/04/RN.[195]When dealing with an application for costs the Tribunal must apply a two-stage test: firstly, to determine whether the circumstances set out in paragraphs (a) or (b) of Rule 76(1) apply; if so, secondly the Tribunal must exercise its discretion as to whether a costs order should be made and, if so, for how much.
Conclusions
[196]We were not satisfied that the Claimant’s claims had no reasonable prospect of success or that she had behaved unreasonably in pursuing the claim. Firstly, the Claimant succeeded in her wrongful dismissal claim. Secondly, the Respondents’ previous application that her claim had no reasonable prospect of success had failed. Employment Judge Blackwell acknowledged that the documentary evidence was overwhelmingly in the Respondent’s favour, but it was a case where the evidence needed to be heard in context and by a full Tribunal. Accordingly, he did not consider that the claim had no reasonable prospect, or little reasonable prospect, of success.[197]Thirdly, in our conclusions on liability, we preferred the Respondents’ evidence but made no findings of dishonesty on the Claimant’s part. Finally, we were mindful that the Claimant had suffered increased anxiety after leaving the 1st Respondent which was reflected in her medical notes, and for which she was receiving medical help. This may well have impaired her perception of events.[198]It considering the above, we were satisfied that the circumstances in Rule 76(1) (a) and (b) did not apply so were not required to move to the second stage of the test.[199]Accordingly, no order for costs was made.