M Larbi v Mihomecare Ltd: 3306551/2020 and 3323491/2021

EMPLOYMENT TRIBUNALS

Case No 3306551/2020, 3323491/2021

Between

M LarbiClaimant

Mihomecare LtdRespondent

Before

Employment Judge de Silva QC

Paul Kerfoot (instructed by Counsel) for respondent

Date 21 November 2024

JUDGMENT

[1]The Respondent’s application to strike out the Claimant’s claim under the Working Time Regulations and/or her claim for unauthorised deductions from wages is refused.

[2]The Respondent’s application for deposit orders in relation to the Claimant’s claim under the Working Time Regulations and/or her claim for unauthorised deductions from wages is refused.

[1]The complaint of unauthorised deductions from wages fails. Holiday Pay

[2]The complaint in respect of holiday pay succeeds to a limited extent. The respondent failed to pay the claimant in accordance with regulation 16(1) of the Working Time Regulations 1998.

[3]The respondent shall pay the claimant £10.59 The claimant is responsible for paying any tax or National Insurance. Pregnancy and maternity discrimination

[4]The complaint of pregnancy discrimination is not well-founded and fails. Direct sex discrimination

[5]The complaint of direct sex discrimination is not well-founded and fails. Harassment

[6]The complaint of harassment related to sex is not well-founded and fails. Victimisation

[7]The complaint of victimisation is not well-founded and fails.

REASONS

[8]The claimant has been employed by the respondent since 12 June 2018. A brief chronology is set out below. The claimant was employed as a care worker. This is an individual who attends private domiciles to carry out care for those unable to care for themselves. The case is formed of two joined claims. The first claim was submitted on 10 July 2020 and the second claim was submitted on December 8 2021. The claimant remains employed by the respondent. Chronology

[9]We have included a chronology as an appendix to this Judgement.

The hearing

[10]The hearing was originally scheduled for seven days. It was due for a substantive hearing in April 2024. This had to be abandoned and rescheduled on the second day because the claimant suffered the bereavement of her mother. At this stage the hearing was re listed for five days. Due to listing pressures, this case was listed for four days to take place this week. This reduction in days was not decided upon by this tribunal panel. Judge Bartlett discussed with the parties on the first day the draft timetable and the discussions suggested that all the witness evidence would be completed by around the end of Tuesday with submissions taking place on Wednesday morning. The remainder of the hearing would be for deliberations and judgement. We heard the claimant's evidence on the afternoon of the first day and part of the morning of the second day. The respondent's evidenced then took until lunchtime on the third day with submissions taking place on the afternoon of the third day and completing at about 4:10pm. To complete the evidence in this time Judge Bartlett had to remind Mr Larbi of the time constraints which included telling him the time by which cross examination of witnesses had to finish. This was required because at one point Mr Larbi indicated that he wanted two to four days with the respondent’s witnesses. On the third day he stated that he would not be able to fit in his cross examination of the respondent’s witnesses in the time frame allowed. Consideration was given to this situation however Judge Bartlett stated that she had to consider the overriding objective which comprised numerous elements. These cases had been going on for many years. There had been a considerable number of preliminary hearings and the aborted hearing. The case listing had been reduced to five days and the parties had been on notice of that for a number of months. The respondent did not wish the hearing to go part heard and it was the tribunal's opinion that this case could be concluded in four days with the judgement reserved and being sent to the parties afterwards and that this was proportionate to the issues in the case. It is recognised that Mr Larbi would have liked more time, and that is very common, however this is not the only consideration and overall the tribunal concluded that it was not in the interests of justice to give either party more time than they were allowed during the course of this hearing.

[11]Twice during the hearing Mr Larbi complained that the respondent’s witnesses sat in the tribunal room were nodding at times when another of the respondent’s witnesses were giving evidence. No member of the Tribunal panel observed anything untoward at any point during the hearing.

[12]The Tribunal heard evidence from the claimant, Mr Larbi, Mrs Lisa Joseph, Mrs Akenyemi and Mrs Maureen Pascal-Rochester. The claimant relied on a witness statement from her sister in law, Mrs Adelaide Adeji, who also worked for the respondent. No reason was given for her absence, Mr Larbi indicated that she might be available on Friday but it was explained she must appear on Tuesday. Given that Ms Adeji did not appear as a witness and no good reason was given for her absence, we have given her witness statement very little weight.

[13]We did not find the claimant’s oral evidence persuasive, her answers to cross examination were vague and minimal, she took an extraordinarily long time to answer many questions which led the tribunal to conclude that she was trying to think of what she thought was the correct answer rather than an honest answer. Often she did not provide an answer to the question that was asked, a significant number of her answers were incoherent in that they were a string of words that did not even form a clause. Judge Bartlett quoted one answer back to the claimant which was one such string of words and the claimant confirmed that was her answer. This undermined her credibility about her availability for work and her desire to return to work. In contrast the respondent’s witnesses were all very clear in their answers, they were keen to try to answer questions and explain their answers fully. They did not hesitate in their answers and were knowledgeable about the matters on which they gave evidence. This led the tribunal to generally prefer the evidence of the respondent’s witnesses over the claimant’s

The issues

[14]The issues in this case were set out in the records of the preliminary hearings. In respect of claim one the record of a preliminary hearing which took place on 10 May 2021 set out the issues. These are as follows: Time limits / limitation issues 7.1. Were all of the claimant’s complaints presented within the time limits set out in section 123 of the Equality Act 2010 (“EQA”) Dealing with this issue may involve consideration of subsidiary issues including: when the treatment complained about occurred; whether there was an act and/or conduct extending over a period; whether time should be extended on a “just and equitable” basis; etc. 7.2. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 12 February 2020 is potentially out of time, so that the tribunal may not have jurisdiction to deal with it, subject to consideration of the matters mentioned in the previous paragraph. EQA, section 18: pregnancy & maternity discrimination 7.3. Did the respondent treat the claimant unfavourably as follows: 7.3.1. The Claimant requested on 16 January 2020 to return early from maternity leave (to start around 10 February 2020). However, she was not allowed to commence retraining until 2 March 2020? 7.3.2. After the training on 2 and 3 March 2020, the Respondent did not contact the Claimant and so she was not permitted to return to work prior to 11 March 2020 (the originally planned date)? 7.3.3. On 11 March 2020, deputy manager (Diane Hill) asked why the Claimant did not contact the Respondent to say she was coming. 7.3.4. On 11 March 2020, the Claimant was asked to sign form which said that she was returning to work after sick leave (which was not true, according to the Claimant, because she was returning from maternity leave) 7.3.5. The Respondent did not allocate any work to the Claimant after 11 March 2020. This did not change until start of next maternity leave period on 1 May 2020. 7.3.6. On 21 January 2020, the Claimant asked for details of annual leave to be put in writing, but did not receive a prompt response. 7.3.7. Around 11 March 2020, the Claimant asked for her duties to be adjusted to office duties but those were not given to her 7.3.8. The Respondent required the Claimant to commence second period of maternity leave on 1 May 2020. This is said to be unfavourable because: 7.3.8.1. She would have preferred to wait until around 9 May (which was 7 days before due date of 16 May) 7.3.8.2. She was only given one day’s notice 7.3.9. The second period of maternity leave was without pay (as a result of lack of work in period from return following first maternity leave period; and the Claimant alleges that work was wrongfully withheld) 7.3.10. When she started work (in June 2018), the Claimant was doing 30 plus hours per week. After she became pregnant the first time they were reduced significantly (in around November 2018 after she informed the Respondent she was pregnant in late August or early September 2018). 7.3.11. Should she have been paid from 2 March 2020 to 30 April 2020 based on hours that the Claimant had told the Respondent she was available 7.3.12. In May 2020, the Claimant raised a complaint/grievance which was not taken seriously by the Respondent (Ms Pascal). (See paragraph 25 of the Claimant’s further information – page 66 of preliminary hearing bundle). 7.4. Did the unfavourable treatment take place in a protected period and/or was it in implementation of a decision taken in the protected period? 7.5. Was any unfavourable treatment: 7.5.1. because of the pregnancy or of illness suffered as a result of it? 7.5.2. because the claimant was on compulsory maternity leave? 7.5.3. because the claimant was exercising or seeking to exercise? or 7.5.4. because the claimant had exercised or sought to exercise, the right to ordinary or additional maternity leave? QA, section 13: direct discrimination because of sex 7.6. In the alternative to her section 18 claim, the Claimant relies on the same treatment as direct discrimination. 7.7. Was that treatment “less favourable treatment”, i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on hypothetical comparators. 7.8. If so, was this because of the claimant’s sex and/or because of the protected characteristic of sex more generally? Annual leave – Working Time Regulations / unauthorised deduction 7.9. What was the claimant’s leave year? (The Claimant alleges 1 April to 31 March) 7.10. How much leave was the Claimant entitled to each year? (the Claimant alleges 25 days plus bank holidays) 7.11. What days did the Claimant take as leave and was there any shortfall in the payments made for those days? 7.12. Did the Claimant take less than her full entitlement to leave, and if so(a) why?

(b) is she entitled to any compensation

(c) is she entitled to any declaration as to her outstanding entitlement? Arrears of pay – unauthorised deduction 7.13. Did the respondent make unauthorised deductions from the claimant’s wages in accordance with ERA section 13 between 2 March 2020 and 30 April 2020 and if so how much was deducted?

[15]In respect of claim 2, the record of a preliminary hearing which took place on 27 February 2023 set out the issues. These are as follows: Time limits / limitation issues 14.1. Were all of the claimant’s complaints presented within the time limits set out in section 123 of the Equality Act 2010 (“EQA”) 14.2. Dealing with this issue may involve consideration of subsidiary issues including: when the treatment complained about occurred; whether there was an act or conduct extending over a period, and/or a series of similar acts or failures; whether time should be extended. 14.3. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 30 June 2021 is potentially out of time, so that the tribunal may not have jurisdiction to deal with it, subject to consideration of the matters mentioned in the previous paragraph. EQA, section 18: pregnancy & maternity discrimination 14.4. Did the respondent treat the claimant unfavourably as follows in the period following her return from the second period of maternity leave (in around May 2021) until the presentation of Claim 2 (8 December 2021). Note 1: The complaints below about the work offered (and not offered) do not include the period during which the Claimant was signed off sick (circa 8 July 2021 to circa 2 September 2021) or the period in which the Claimant was (on her case) on annual leave (which commenced around 10 September 2021, but Mr Larbi is unaware of the end date). Note 2: It is the Claimant’s case that she was pregnant throughout that period May 2021 to 8 December 2021 and that the Respondent was aware of that. 14.4.1. Failed to allocate sufficient work to the Claimant (by comparison to the number of hours which had been allocated when she first started work for the Respondent; see paragraph 7.3.10 of the list of issues for Claim 1)? 14.4.2. Failed to allocate a reasonable number of hours per day. (That is, on the Claimant’s case, offering her only – for example – a one hour 45 minute shift for a whole day is unfavourable) 14.4.3. Failed to offer work of the type that the Claimant had requested (such as “double ups” and shopping). 14.4.4. Ignored the Claimant’s complaints about these same work allocation issues 14.4.5. On around 5 July 2021, criticised the Claimant (by means of Ms Adeola’s email to Lisa which was forwarded to the Claimant, and Lisa’s own comments on the issue) for alleged lack of reliability and availability. (On the Claimant’s case, at least some of the dates on which she had been unavailable were for ante-natal appointments or because of pregnancy related illness. Mr Larbi accepted in this hearing that her reason for the Claimant’s cancelling 5 July 2021 was that the shift was too short to be economically viable for the Claimant). 14.5. Did the unfavourable treatment take place in a protected period and/or was it in implementation of a decision taken in the protected period? 14.6. Was any unfavourable treatment: 14.6.1. because of the pregnancy or of illness suffered as a result of it? 14.6.2. because the claimant had exercised or sought to exercise, the right to ordinary or additional maternity leave? EQA S13 Direct Discrimination (sex) 14.7. Did the respondent engage in conduct as follows: 14.7.1. [the Claimant relies on the same alleged acts and omissions as for the section 18 complaint in Claim 2] 14.8. If so was that conduct unwanted? 14.9. If so, did it relate to the protected characteristic of sex? 14.10. Did the conduct have the purpose or (taking into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect) the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? Equality Act, section 27: victimisation 14.11. Did the claimant do a protected act? The claimant relies upon the following: 14.11.1. Presentation of Claim 1 in July 2020 14.12. Did the respondent subject the claimant to any detriments as follows: 14.12.1. [the Claimant relies on the same alleged acts and omissions as for the section 18 complaint in Claim 2] 14.13. If so, was this because the claimant did a protected act?

The Law

[16]S18 of the Equality Act, pregnancy and maternity discrimination, sets out: (2)A person (A) discriminates against a woman if, in or after the protected period in relation to a pregnancy of hers, A treats her unfavourably — (a)because of the pregnancy, or (b)because of illness suffered by her [n that protected period as a result of the pregnancy. (3)A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave or on equivalent 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 or a right to equivalent maternity leave. (6)The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a)if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy…”

[17]By analogy with the approach adopted in disability discrimination (see Williams v Trustees of Swansea University Pension & Assurance Scheme

[2018] UKSC 65

[2019] IRLR 306

, 'unfavourable' treatment is to be measured against an objective sense of that which is adverse as compared with that which is beneficial. As was held in the EAT by Langstaff P in Williams, 'treatment which is advantageous cannot be said to be “unfavourable” merely because it is thought it could have been more advantageous … Persons may be said to have been treated unfavourably if they are not in as good a position as others generally would be.'

[18]The reason for the unfavourable treatment has to correspond to pregnancy or maternity; it is not sufficient for pregnancy or maternity to simply be part of the background context.

[19]We note that there is no comparator in pregnancy and maternity discrimination rather the consideration is has the complainant suffered unfavourable treatment.

[20]S13 of the Equality Act 2010 sets out the test for Direct Discrimination: “(1)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. (5)If the protected characteristic is race, less favourable treatment includes segregating B from others…”

[21]In Amnesty International v Ahmed

[2009] IRLR 884

[2009] ICR 1450

, EAT, Underhill P set out: “In other cases—of which Nagarajan is an example—the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant … The distinctions involved may seem subtle, but they are real … There is thus, we think, no real difficulty in reconciling James v Eastleigh and Nagarajan. In the analyses adopted in both cases, the ultimate question is— necessarily—what was the ground of the treatment complained of (or—if you prefer—the reason why it occurred). The difference between them simply reflects the different ways in which conduct may be discriminatory.''

[22]This has been confirmed in a number of subsequent cases including more recently by Linden J in Gould v St John's Downshire Hill

[2020] IRLR 863

[2021] ICR 1

, EAT(a case of alleged discrimination because of marriage): ''…the logic of the requirement that the protected characteristic or step must subjectively influence the decision maker is that there may be cases where the “but for” test is satisfied – but for the protected characteristic or step the act complained of would not have happened – and/or where the protected characteristic or step forms a very important part of the context for the treatment complained of, but nevertheless the claim fails because, on the evidence, the protected characteristic or step itself did not materially impact on the thinking of the decision maker and therefore was not a subjective reason for the treatment. This point is very well established in the field of employment law generally where, for example, an employer may be held to have acted by reason of dysfunctional working relationships rather than the conduct of the claimant which caused the breakdown in those relationships (see e.g. the cases on the distinction between dismissals related to “conduct” and dismissals for “some other substantial reason”, such as Perkin v St Georges Healthcare NHS Trust [2006] 617 CA; and the cases in relation to public interest disclosures such as Fecitt & Others v NHS Manchester (Public Concern at Work Intervening)

[2012] ICR 372

CA and Panayiotou v Chief Constable of Hampshire Police

[2014] IRLR 500

EAT).

[23]S.23 of the Equality Act 2010 sets out the law relating to comparators: “(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.”

[24]In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL (a sex discrimination case), Lord Scott explained that this means that “the comparator required for the purpose of the statutory definition of the discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class.”

[25]S26 of the Equality Act 2010 sets out the test for harassment: “Harassment (1)A person(a) (A) harasses another

(b) (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. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (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 the conduct to have that effect.”

[26]S27 of the Equality Act 2010 sets out the law in relation to victimization: (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. Burden of Proof

[27]S136 of the Equality Act 2010 sets out the burden of proof which applies to discrimination cases: “(1) This section applies to any proceedings relating to a contravention of this Act. (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.”

[28]In Igen Ltd v Wong the Court of Appeal approved the guidance given in Barton v Investec Securities Ltd

[2003] IRLR 332

concerning the burden of proof in discrimination cases which is that: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail…. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.”

[29]In Madarassy v Nomura International plc

2007 ICR 867

, CA Lord Justice Mummery stated: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” Findings of Fact and Decision

[30]In large part the respondent does not dispute that the acts alleged by the claimant happened, rather it is the respondent’s position that they did not amount to

[31]We have initially set out some general findings of fact that we consider will be of assistance in deciding the specific issues.

Background

[32]The respondent provides domiciliary care for who it calls service users and who are mainly the elderly. The respondent has contracts with various local authorities to provide this care. The respondent employs care workers to carry out the domiciliary care tasks and this was the role that the claimant carried out. The claimant was employed under a zero hours contract. It is not disputed that at all times her hours varied.

[33]The evidence from Mrs Akenyemi was that the demand for domiciliary care visits was high in the morning because all service users wanted to get out of bed and get ready for the day such as by getting dressed and having breakfast. The other main periods of demand were lunchtime and around dinner time when service users needed help with food and/or getting ready for bed. She accepted in evidence that they did have other visits between these times but that there were less of them. We accept this evidence as it was cogent and clearly put.

[34]The claimant was employed from 12 June 2018. She commenced her first period of maternity leave on 12 March 2019. The events in the first claim largely relate to her return after this period of maternity leave around the start of 2020 through to April 2020. As can be seen from the dates, this period encompassed when COVID-19 caused great disruption in the United Kingdom and around the world. Several of the respondent's witnesses gave evidence around the disruption that it caused and the potential impact this had for both their care workers and service users. Rotas and work allocation

[35]As a significant part of the claimant claim was about the work she was allocated or not allocated, we considered that it is useful to set out our findings about the general arrangements relating to rotas and work allocation.

[36]Each care worker had a bespoke rota. This rota would vary and no two weeks would be the same. Significant changes were made to rotas at short notice and reasons for this could be:a. the service user went into hospital and therefore there would be short notice cancellations of these domiciliary visits because they would not be needed;

b. the council cancelled the care package. This would be a short notice cancellation;

c. the service user passed away. This would be a short notice cancellation;

d. the service user had visits from friends or family and therefore did not require the domiciliary visit. This would be a short notice cancellation.

[37]Each care worker was given a mobile telephone by the respondent and their rotas were sent to this. Because of the risks of short notice cancellations to the rota, care workers were required to check for updates to their rota which was sent directly to the mobile telephone.

[38]The work carried out by care workers encompassed a range of domiciliary care work for those in need. For example, this could include help with getting out of bed, washing, dressing, meal preparation, shopping, help with laundry and could include substantial physical work involving lifting including using hoists and bending. As this is a physical job, we accept that the respondent had health and safety obligations both to its service users and to care workers.

[39]The respondent made it clear to care workers that they did not have particular clients. Ms Akenyemi stated that this was made clear so that care workers remembered that the service users were not their family and try to keep some professional distance. However, this did not mean that the respondent would continually mix up care workers and service users. Mrs Akenyemi stated that one of the things the CQC looked at was the continuity of carers that were provided to service users. The CQC made it clear that they did not expect a service user to have ten different carers all being mixed up and that there was a strong desire for one carer to consistently attend to a service user. The consistency of carers was also important to the respondent’s local authority clients. Mrs Akinyemi explained how this was particularly important for those with dementia, to ensure that a safe service was provided and service users knew who was coming. This was tied into treating service users with dignity and respect. As a result, the respondent tried to ensure that the same carer consistently attended the same service users.

[40]We accept the respondent’s evidence which was largely unchallenged that when the claimant returned from maternity leave in 2020 she transferred to a different branch which was the Islington branch. We accept the respondent’s evidence that the claimant had a number of requirements about her working arrangements that affected what work she could carry out. Most of this was agreed with by the claimant and supported by documentary evidence. These were completely unrelated to pregnancy, or her taking maternity leave and are as follows:a. her available working hours were 7:00 AM to 3:00 PM Monday to Friday;

b. she would only work within the EC1 post code;

c. she would not attend homes in which there were pets.

[41]We find that this had a very significant impact on the work that could be allocated to the claimant. We explain this in more detail below.

[42]The claimant’s available working hours were 7:00 AM to 3:00 PM Monday to Friday. This is a period of eight hours however it would be impossible for the claimant to work 8 hours because of the travelling time that is required between calls. We have received no evidence that any carers had back-to-back calls without breaks and we do not accept this would happen. Mrs Akenyemi stated that many of the respondent’s carers were mothers who fitted in the work between caring responsibilities for their children. For example, they would do the early morning work and then take their children to school. Have a break, come back for the lunchtime work, pick the children up from school and then carry out further work around dinner time. In addition, the timesheets that we have seen for the claimant indicated that that were gaps between allocated calls or visits. We recognise that she says she should have been given more work but as we have set out above the claimant had to travel between calls, this travel was not paid nor was it counted in the working hours. Therefore, we consider that out of these 8 hours the maximum hours that the claimant could have been given was around 6 hours. This is before any consideration is given to the lack of work around mid morning and after lunch which was inherent in the type of work the respondent had for carers.

[43]The respondent’s evidence was that there was limited work in the EC1 postcode and if the claimant had agreed to work in the N1 postcode more work would have been available to her. Mrs Joseph’s evidence was that she had asked the claimant about this but the claimant had stated that she wanted to work in EC1 only. We accept this evidence of Mrs Joseph. We find that Islington Council only covers a small part of EC1 but many more homes are covered by Isling ton Council in the N1 postcode. The claimant’s geographical constraints reduced the work that could be allocated to her.

[44]Mrs Akenyemi and Mrs Joseph stated that many clients were elderly and had pets. We accept this and that it limited the service users which could be allocated to the claimant. Findings and conclusions on Specific Issues

[45]Claim 1

[46]We record that we are aware that the claimant has put her claim as that she suffered pregnancy and maternity discrimination on the basis of pregnancy, pregnancy related illness, being on compulsory maternity leave, taking or seeking to exercise compulsory, ordinary and/or additional maternity leave. To avoid having to repeat those words in every section we have used the term “pregnancy” to cover all of those events and considerations even though we recognise that they can lead to different conclusions because of their differing situations. We gave careful consideration as to how each of those situations was relevant to each allegation despite using this short hand.

[47]The Claimant requested on 16 January 2020 to return early from maternity leave (to start around 10 February 2020). However, she was not allowed to commence retraining until 2 March 2020?

[48]We accept the claimant made that request. We find that there were a number of calls between the claimant and Mrs Joseph around this time. This is recorded in emails from the claimant at that time. We accept Mrs Joseph’s evidence that she said to the claimant that she was required to give 8 weeks' notice of an early return on a call and that she had initially said 4 weeks but corrected herself on the same call after checking the policy. A letter dated 3 June 2019 set out that the claimant needed to give 8 weeks’ notice of any change to a return date. The claimant wanted to return early, however she had not provided at least 8 weeks' notice and the respondent was entitled to say by virtue of Reg 11 of the Maternity and Parental Leave etc Regulations 1999 that the claimant could not return earlier. That is not

[49]It is not disputed that the claimant attended compulsory training on 2 and 3 March 2020. The respondent required all care workers who had been absent from the business for any reason for an extended period of time to under go refresher training. We accept that this was to comply with health and safety obligations to both its care workers and service users. This training was 3 days but the claimant could not complete the 3rd day which involved manual handling (bending. Lifting, etc) training. The training was organised by head office and only ran on certain dates. We find that it was not unfavourable treatment to not provide bespoke training to the claimant at a time she wanted it rather than require her to attend the next company training dates.

[50]We find that the 2 and 3 March 2020 training dates were paid as KIT days.

[51]After the training on 2 and 3 March 2020, the Respondent did not contact the Claimant and so she was not permitted to return to work prior to 11 March 2020 (the originally planned date)?

[52]We accept that the claimant did not return to work until 11 March 2020. As set out above, we find that the respondent was entitled to not agree to the claimant returning earlier. We find this not unfavourable treatment and it is accordance with the Maternity and Parental Leave etc Regulations 1999.

[53]On 11 March 2020, deputy manager (Diane Hill) asked why the Claimant did not contact the Respondent to say she was coming.

[54]As the respondent did not provide any evidence to rebut this from Mrs Hill (she had left the business) we accept that this was said. We consider this comment needs to be considered in the wider context which is that the claimant had numerous calls before her return with Ms Joseph and the respondent was aware that she was returning on this date. Ms Joseph held the return to work meeting with her on this date and we will consider this in more detail below. We find that this was not unfavourable treatment related to pregnancy. It was simply a throw away comment by someone who was not the claimant’s line manager and it is clear her line manager was expecting her return.

[55]On 11 March 2020, the Claimant was asked to a sign form which said that she was returning to work after sick leave (which was not true, according to the Claimant, because she was returning from maternity leave)

[56]It was not disputed that in a meeting with the claimant, Mrs Joseph went through the Risk Assessment for New and Expectant Mothers form and then tried to complete a form which was headed “Workplace Risk Assessment Support worker returning from sick”. The claimant asked for the form to record that she had pregnancy related sickness rather than returning from sickness. Mrs Hill did not agree to make the change to the document. Mrs Hill recorded on the form that the claimant would not sign the form in these circumstances. The respondent’s witnesses said that this form was a work place risk assessment and it was used whenever a risk assessment was thought necessary. It was not used solely for those returning from sick. We accepted that evidence, the risk assessment sets out the duties required of a care worker and provides a means of recording difficulties or risks with carrying out the various types of work. A risk assessment is require to be carried out by the respondent for the claimant in light of the risks from the work she carried out under Regulation 16 of the Management of Health and Safety at Work Regulations 1999. The respondent agreed that later on the respondent changed the form so that returning from sick was removed from it. We find that nothing turns on the latter.

[57]We find that seeking to understand the risks and potential difficulties the claimant may have in carrying out the work was good practice and was, at least in part, to protect the claimant and it was a legal obligation. It had already been identified that the claimant had some difficulties in carrying out the work as she had not completed the 3rd day of training and the New mothers risk assessment form recorded that she “feels weak and tired when standing/walking for longer periods – has back pain” and “experiences pelvic” pain. We do not consider that either trying to complete the form or that it said sick leave were unfavourable treatment. S18 of the Equality Act itself refers to pregnancy related illness and in the context of this claim we find that the reference to sick leave was not unfavourable treatment.

[58]The Respondent did not allocate any work to the Claimant after 11 March 2020.This did not change until start of next maternity leave period on 1 May 2020.

[59]This is not disputed. The claimant was paid for the period from 11 March 2020 until 30 April 2020. We find that it was not unfavourable for the claimant to be paid but not be required to work at all. She carried out task based work and this was not a case where she needed to maintain sales or relationships for her job or advancement. In all the circumstances, we find there was no unfavourable treatment. To the contrary this is more favourable treatment.

[60]On 21 January 2020, the Claimant asked for details of annual leave to be put in writing, but did not receive a prompt response.

[61]On 21 January 2020 the claimant sent at email at 22:08 requesting details of the annual leave. This was not during normal office hours. Ms Joseph responded at 9:32am on 22 January 2020 telling the claimant to contact HR and, following an email from the claimant, on 23 January 2020, Ms Joseph provided the claimant with HR’s contact details on 23 January 2020 at 15:53. We find that the claimant did receive a prompt response and that there is no unfavourable treatment.

[62]Around 11 March 2020, the Claimant asked for her duties to be adjusted to office duties but those were not given to her

[63]We have set out above that the claimant was paid during this period without being required to carry out any work and therefore even if this request was not addressed by the respondent this was not unfavourable treatment.

[64]The Respondent required the Claimant to commence her second period of maternity leave on 1 May 2020. This is said to be unfavourable because:a. She would have preferred to wait until around 9 May (which was 7 days before due date of 16 May)

b. She was only given one day’s notice

[65]This is not disputed. We find that the respondent was entitled to require the claimant to commence maternity leave on 1 May 2020 under s6(1) of the Maternity and Parental Leave etc Regulations 1999 because the claimant was absent form work either wholly or partly due to pregnancy. The exercise of this statutory right by the respondent cannot in the circumstances be unfavourable treatment.

[66]The second period of maternity leave was without pay (as a result of lack of work in period from return following first maternity leave period; and the Claimant alleges that work was wrongfully withheld)

[67]This is not disputed. The claimant is referring to statutory maternity pay. She was not entitled to SMP because she did not have sufficient earnings in the relevant period. This is because of her return to work on 11 March 2020. We have found above that the respondent was entitled to not agree to her return earlier. The lack of SMP was a result of the statutory rules concerning how it operates. We find that there is no unfavourable treatment.

[68]When she started work (in June 2018), the Claimant was doing 30 plus hours per week. After she became pregnant the first time they were reduced significantly (in around November 2018 after she informed the Respondent she was pregnant in late August or early September 2018).

[69]We find that this allegation is out of time and does not form part of a continuing act. This claim is a very long time out of time. The continuity was broken by the claimant’s maternity leave. We find that it is not just and equitable to extend time. The Court of Appeal in Chief Constable of Lincolnshire Police v Caston

[2009] EWCA Civ 1298

[2010] IRLR 327

held that “Plainly, the burden of persuading the ET to exercise its discretion to extend time is on the claimant (she, after all, is seeking the exercise of the discretion in her favour).” In Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] IRLR 278

the EAT, HHJ Peter Clark, identified a proposition that 'if the claimant advances no case to support an extension of time, plainly, he is not entitled to one'. The claimant has not provided any reasons why the claim was submitted so late and therefore we have decided not to extend time. We do not consider that a lack of awareness of her rights or a failure to make the decision to bring a claim mean that it is fair and equitable to extend time. There is a prejudice to the respondent in that the claims are so long ago, that staff such as Mrs Hill have left the organisation and it makes it harder to respond to a claim. The prejudice to the claimant in not being allowed to bring this claim is that she cannot bring the claim however as can be seen from this case she has still been able to bring many issues before the Tribunal for consideration.

[70]The Claimant should have been paid from 2 March 2020 to 30 April 2020 based on hours that the Claimant had told the Respondent she was available

[71]We find that there was no unfavourable treatment. We have set out above our findings in relation to the claimant not being paid until 11 March 2020 which is when she returned to work. As set out above the claimant said she was available for 8 hours a day but it is not possible she would have worked that amount of hours even excluding all pregnancy related matters. She was paid from 11 March 2020 based on the average weekly pay paid over 12 weeks when she was last at work which spanned December 2018 - February 2019. The claimant worked irregular hours and we consider that this was a fair and appropriate means of calculating her pay.

[72]Part of the background to the claimant’s claim and the out of time issue she wanted to bring, relates to what she asserts is a reduction in her hours from around November 2018 that she alleges is related to pregnancy. Though we do not consider that this issue is before us we note the following: the claimant was employed in June 2018 and she claims that her hours were reduced approximately 5 or 6 months later around November 2018. We have set out above how there are factors in the work the claimant carries out that make the work available for carers inherently variable. We find that the approximately 5 months that the claimant wishes to use as a comparator for the later three or four months cannot be an accurate comparator. This is because of the inherent variability in the work and also because in summer there is holiday cover and there are less hospital admissions for the elderly which reduces one variability factor and increases work. The reality is that the claimant was on a zero hours contract because of the variability of the hours. The zero hours contract placed that risk of variability on the claimant and other care workers and we find that the difference in the hours was due to the inherent variability of the work.

[73]In May 2020, the Claimant raised a complaint/grievance which was not taken seriously by the Respondent (Ms Pascal). (See paragraph 25 of the Claimant’s further information – page 66 of preliminary hearing bundle).

[74]The complaint/grievance was raised by the claimant on 21 April 202 by email to the respondent’s HR. An email dated 5 May 2020 from the claimant to Ms PascalRochester set outs out that they had had a series of conversations starting from 24 April 2020. An outcome letter was sent to the claimant on 30 April 2020.On 6 May 2020 Ms Pascal-Rochester replied in detail to the claimant via email. We find that the outcome letter dated 30 April 2020 addressed the concerns raised by the claimant. The fact that this process was carried out via phone calls and emails needs to be considered that at this time it was the start of the disruption caused by Covid-19, the respondent’s office staff were working from home and the claimant was not, in any event, an office based worker. Judge Bartlett asked the claimant what her complaint about the grievance was and she could not identify any issues. We find that the grievance was dealt with appropriately and there was no

[75]Sex Discrimination

[76]The claimant put all of these allegations as sex discrimination in the alternative. As we have set out above we have not found any unfavourable treatment and therefore the claim for sex discrimination must fail. Even if we were wrong in that, we find that none of the treatment was for a reason connected to sex.

[77]Holiday Pay

[78]Mr Larbi was not able to articulate the basis of this claim. I referred him to the contractual term and to Reg15(c) of the Working Time Regulations 1998 which sets out how holiday pay is calculated for workers with irregular hours.

[79]The respondent set out that they calculated the claimants’ average number of hours in the last 12 weeks that the claimant worked as follows (these figures are not disputed by the claimant):a. Dec 2018 95.49hrs

b. Jan 2019 94.74hrs

c. February 2019 108.11hrs

d. Giving a total of 298.34 hours

[80]We accept this calculation.

[81]Regulation 15(c) sets out the 3 steps that are used to calculate holiday pay for irregular hours workers:

[82]Step 1 – calculate the average number of hours per week in the relevant period. The respondent has used the figure of 298.34 total hours over 12 weeks which equals 24.86 hours per week.

[83]Step – 2 - Calculate 12.07% of the number of hours arrived at under Step 1 to find the number of hours of annual leave that the worker accrues during each week of the sick leave or statutory leave. 84. 12.07% of 24.86 hours = 3

[85]Step 3 - Multiply that number of hours by the number of weeks in a pay period for which the worker is taking sick leave or statutory leave to find the number of hours of annual leave that the worker accrues during each such pay period. 86. 3 x 52 = 156

[87]The respondent paid 155 hours (155 x £10.59 = £1641.25 gross and £1349.97 net which the claimant was paid) not 156 hours. Therefore, the claimant is entitled to £10.59 in respect of 1 hour of under paid holiday.

[88]Did the respondent make unauthorised deductions from the claimant’s wages in accordance with ERA section 13 between 2 March 2020 and 30 April 2020 and if so how much was deducted?

[89]As set out above the respondent used the following hours to calculate pay:a. Dec 2018 95.49hrs

b. Jan 2019 94.74hrs

c. February 108.11hrs

d. Giving a total of 298.34 hours, per 4 weeks this is £253.57

[90]The claimant was paid £1847.57 as salary for the period between 11 March and 30 April 2020. This amounts to 7.2 weeks at £253.57. We consider that the correct period of 11 March to 30 April 2020 has been paid.

[91]Claim 2

[92]The respondent failed to allocate sufficient work to the Claimant (by comparison to the number of hours which had been allocated when she first started work for the Respondent; see paragraph 7.3.10 of the list of issues for Claim 1)?

[93]It is not disputed that the claimant was on annual leave from 2 May 2021 until 27 May 2021. 27 May 2021 was a Thursday. She attended training on 1 and 2 June 2021. We find that during the period 2 May 2021 to 8 December 2021 the claimant worked 9 days excluding the training days. The 9 days were 16-18 June 2021, 29 June 2021 and 22-26the November 2021. On 11 June 2021 she had the work assessment and maternity assessment.

[94]The following is an outline of the days the claimant worked, was off sick or was unavailable:a. 10 June 2021 sickness

b. 14-15 June 2021 sickness

c. 16 -18 June 2021 the claimant worked

d. 21 June 2021 sickness

e. 22 June 2021 sickness

f. 23 June 2021 absence for a personal matter

g. 24 – June 2021 absence due to sickness

h. 30 June 2021 absence due to sickness

i. 1-7 July claimant refused the hours due to too few hours

j. 8 July to 2 September 2021 absence due to sickness

k. 3 - 9 September 2021 unable to contact the claimant

l. 10 September -11 October 2021 the claimant out of the country

m. 12 October 2021 – 16 November 2021 unable to contact the claimant

n. 17 Nov 2021 return to work meeting

o. 18 November 2021 training and pregnancy assessment

p. 19 November 2021 absence due to sickness

q. 22-26 November claimant worked

r. 29 November 2021 C absent to attend a hearing

s. 30 November 2021 Claimant absent due to an antenatal appointment

t. 1 December 2021 Claimant absent due to emergency hospital appointment

u. 2 December absent due to pelvic plain

[95]We find that Mrs Akenyemi sent an email to the claimant on 3 June 2021 asking the claimant to contact Ms Joseph to book an appointment for the next week. The claimant attended the respondent’s office on 9 June 2021 but Ms Joseph had to leave the office for a personal emergency. This was unfortunate but unavoidable and had no connection to pregnancy or sex. The claimant was off sick the next day and the meeting was held about return to work on 11 June 2021.

[96]The claimant’s evidence was that she wanted to start work as soon as possible. However, we do not accept that meant on 3 June 2021 because we have generally found the claimant not credible in her evidence. We find that in January 2020 she stated she wanted to come back to work as soon as possible but also imposed parameters which included not the week beginning the 5th or 12th of March 2020. Therefore we do not accept that the claimant wanted to and was ready to start work on 3 June 2021 and we instead find that a date had to be agree with the claimant for her to return. We find that the 9 June 2021 was the first the claimant could start work.

[97]The claimant’s timesheets show that on 15 June 2021 she was allocated 4 calls from 7am to 12:30/1pm totally 3hrs 15mins. Similar amounts of calls are allocated throughout the week increasing to 4 hours by Friday 18 June 2021. On her next working day on 29 June 2021 her working hours were 4hrs 15min. In her next periods of work in November and December there is some fluctuation of work with some days of 2hrs of work and others with around 3-4 hours of work.

[98]We have set out above that in December 2018, January and February 2019 she worked an average of almost 25 hours per week. Taking these hours the claimant did work materially less following her return in May 2021.

[99]We have set out above that in 2021 the claimant’s available working hours were 7am to 3pm. We have carefully considered the hours she worked by reference to the time sheets and the travelling time between the calls. We took into account when work is needed by service users during the day which limits what would be available for any carer. We have concluded that given her available hours there was in reality little possibility of allocating more hours to her than were allocated to her in June 2021. This is even more so when the inherent variability of the work (as set out above and which relates to cancellations) is taken into account which means that some days there is more work than others. This is also the case when the claimant’s own restrictions on her work such as available hours, work location and no pets were taken into account.

[100]We recognise that on some days the claimant was only allocated around 2 hours of work but we accept Mrs Akenyemi and Mrs Josephs evidence that this was because of short notice cancellations (which we have explained further above). Short notice cancellations were outside the control of the respondent and had no reason whatsoever to do with pregnancy. The time sheets indicate in June she was allocated more hours and less in November 2021. However, by November the claimant had spent considerable time not working for various reasons (out of contact with the respondent, holiday and sick leave, etc) unconnected with pregnancy. We accept there were some pregnancy illness absences but the long period of sick leave was for stress related reasons and not connected to pregnancy. The holiday was a substantial period and the claimant does not deny the respondent’s claim that she did not complete the annual leave request forms and we find that this absence was not authorised. We recognise that the claimant's account is that she told the respondent about her holiday but telling your manager is not the same as completing the correct forms.

[101]The claimant’s evidence was that her phone was blocked and that this was a reason for no contact. Her witness statement also sets out that “That's why they frustrated me so I stopped working”. This was in reference to a grievance meeting and the grievance decision. Therefore, we find that the claimant made a conscious decision not to work because she was annoyed with her employer. This is not connected to pregnancy or sex.

[102]There was also a background issue relating to the claimant’s work telephone. The claimant claims that she was incorrectly accused of returning a work phone that was damaged and that this phone was not even hers. The bundle contains a picture of a phone with a smashed screen which the respondent says was the claimant and which she denies was her phone. The bundle also contains screenshots of messages the claimant sent to managers at the respondent. These screenshots of messages on the claimant’s phone show a pattern of a cracked screen which matches the photo of the cracked phone screen. Therefore, we do not accept the claimant's claim in this regard. We are not satisfied that the claimant’s phone was blocked by the respondent. At one point in her witness statement, she says that messages were automatically deleting without being read because of the phone settings. We find that this has nothing to do with pregnancy and that if there was a problem with the phone the claimant could have promptly contacted the respondent to resolve the issues and if she had they would have been resolved. We find that the claimant chose to stay out of contact with the respondent for a period of time because of her frustrations with them and this had nothing to do with pregnancy. To the extent that difficulties with the phone had any relation to her not working for the respondent we find that these are wholly unrelated to pregnancy and could have been resolved promptly by the claimant.

[103]Ms Jospeh talked about building the claimant’s rota up which meant allocating her clients consistently. We find that this would be required for anyone who had a low number of service users like the claimant did and that this could arise from situations like some service users dying, entering a care home or a long-term hospital stay. It is not something that is necessarily linked to a carer taking leave. We accept that by November 2021 her rota did need to be built up but that pregnancy, expressing a desire to take maternity leave or pregnancy related illness were not a reason connected with it. There were a number of reasons for the rota needing to be built up including the claimant’s non pregnancy related absences. We accept that the respondent could not take service users off other carers as this would be disruptive to the service users, not in their best interests and cause difficulties for their responsibilities to the Council which awarded them the contract and the parameters on which they were assessment by the CQC (which represented good practice). We find that the time sheets show that the respondent had work and was keen to allocate it to the claimant.

[104]Failed to allocate a reasonable number of hours per day. (That is, on the Claimant’s case, offering her only – for example – a one hour 45 minute shift for a whole day is unfavourable)

[105]We consider this is essentially the same as the above allegation and we repeat our findings and conclusions above.

[106]Failed to offer work of the type that the Claimant had requested (such as “double ups” and shopping).

[107]We have found above that the claimant was allocated as much work as could reasonable be allocated in all the circumstances without being allocated these tasks.

[108]In addition, we find that the claimant was assessed as being at risk from double up work as this would involve lifting and bending. The claimant initially said she could not do shopping because of the lifting and then requested that she was put on shopping. We find that the decision not to allocate shopping to the claimant was because of real risks she would face from the possibility of it involving heavy lifting. These are reasons related to pregnancy and pregnancy related illness. However, we find that it was not unfavourable treatment because the decisions were taken to prevent the claimant being put at risk. Mr Larbi submitted that the claimant should have been given shopping work because if it involved lifting, she could simply not do it despite attending a service user who needed and expected a care worker to do it. We reject this submission. We accept the respondent’s witnesses’ evidence that most service users required help with weekly shopping not daily shopping and so shopping would usually involve heavy lifting. We cannot accept the submission that the respondent should have given the claimant calls so that she could turn up to carry out a task which she probably could not do and if it turned out she could not do it, she would just not do it and leave the service user in the lurch. The respondent could not act that way to its service users. We conclude that there was not unfavourable treatment.

[109]Ignored the Claimant’s complaints about these same work allocation issues 14.4.5. On around 5 July 2021, criticised the Claimant (by means of Ms Adeola’s email to Lisa which was forwarded to the Claimant, and Lisa’s own comments on the issue) for alleged lack of reliability and availability. (On the Claimant’s case, at least some of the dates on which she had been unavailable were for ante-natal appointments or because of pregnancy related illness. Mr Larbi accepted in this hearing that her reason for the Claimant’s cancelling 5 July 2021 was that the shift was too short to be economically viable for the Claimant).

[110]We find that the claimant’s complaints were not ignored. A written grievance outcome dated 1 July 2021 addresses these concerns and a grievance meeting was held on 28 June 2021 (after the meeting was rescheduled to suit the claimant several times) to discuss them. This part of the allegation is not made out factually.

[111]The complaints relating to Ms Joseph arise from Ms Joseph’s email of 5 July 2021 which say:

[112]We find that the claimant has misunderstood the context of the words “we must have a relationship built on reliability and consistency” by Ms Jospeh. We find that they refer to the service users having reliability and consistency in the care package provided not the claimant’s relationship with the respondent. This was not a criticism towards the claimant or about the claimant’s actions it was focused on the service user’s experience. Therefore, we find that it was not unfavourable treatment. Further, we find that it has no connection to pregnancy or pregnancy related illness as it is focused on the needs of service users.

[113]For completeness, we record that the reference to handing back the rota is, on the claimant’s own case, not connected in anyway to pregnancy or pregnancy related illness as it related to a preference about shift length.

[114]We find that Ms Adeloa’s email contained no more than a factual statement.

[115]Sex Discrimination

[116]The claimant put all of these allegations above in claim 2 as sex discrimination in the alternative. As we have set out above, we have not found unfavourable treatment in many respects. Further where there is unfavourable treatment, we find that none of the treatment was for a reason connected to sex. We have set out above the reasons unconnected to sex which we have found for the treatment.

[117]Harassment

[118]We have found that none of the conduct relied on by the claimant relates to her sex and therefore the harassment claims must fail.

[119]Victimisation

[120]We find that there is no connection between the events relied on by the claimant as detriments and the claimant making the protected act. We also find that none of the alleged detriments are detriments for the same reasons we have found that they are not unfavourable treatment. RECONSIDERATION

Background

[1]On 18 March 2025 the claimant applied for reconsideration of the judgement of 21 November 2024 which was sent to the parties on 5 March 2025. This application was sent to me on 8 April 2025.

[2]The application sets out 29 numbered paragraphs all of which make various criticisms of the judgement. These include but are not limited to the following: 2.1. “There was bias in the judges and proceeds during the hearing”; 2.2. Complaints about the time accorded to various stages of the proceedings during the hearing; 2.3. Many complaints about the assessment of the evidence and findings of facts made by the tribunal; 2.4. “not all the decision for the claim was made leaving some case or claim undealt with in the decision” and a claim that the Tribunal did not consider the harassment claim. 2.5. The judgement did not explain how the award of £10.59 came to be made Judgment Case No: 3306551/2020 & 3323491/2021

[3]I have considered the claimant’s application under Rules 69 and 70 of the Employment Tribunal Rules of Procedure 2024.

[4]I find that the reconsideration application is largely a disagreement with the findings and decision of the Tribunal. I find that there is no merit to those assertions and there is no reasonable prospect of the judgement being varied or revoked. I have specifically dealt with two aspects of the reconsideration request below where they diverge from being a mere disagreement with the Tribunal’s findings.

[5]In relation to the claim that not all parts of the claim were dealt with and specifically that the harassment claim was not dealt with, I find this argument is not sustainable. Paragraph 118 sets out that the harassment claim fails and why. The claimant has not identified any other parts of the claim that were not dealt with.

[6]In relation to the claim that there is no explanation as to how the £10.59 amount awarded to the claimant was calculated, this is clearly a misconceived assertion. Paragraphs 79 to 87 set out step by step how this amount was calculated.

[7]I find that there is no reasonable prospect of the judgment being varied or revoked and refuse the application under rule 70.