Miss M Gil v Herrington Carmichael LLP: 3308888/2023

EMPLOYMENT TRIBUNALS

Case No 3308888/2023

Between

Miss M GilClaimant

Herrington Carmichael LLPRespondent

Before

Employment Judge Hawksworth

Mr J England (instructed by counsel) for respondent

Date 11 October 2024

JUDGMENT

[1]The complaints of pregnancy and maternity discrimination, indirect sex discrimination, and harassment related to sex fail and are dismissed;

[2]The claimant was not dismissed. The complaint of unfair dismissal is not well-founded and is dismissed. JUDGMENT having been sent to the parties on 28 November 2024 and reasons having been requested by the claimant in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The respondent is a law practice. The claimant was employed by the respondent from 17 May 2021 to 31 August 2023 as a debt recovery paralegal with the respondent’s dispute resolution team.

[2]The claim arises out of the claimant's complaints about changes to working arrangements at the time of her return from maternity leave. She complains of pregnancy and maternity discrimination, indirect sex discrimination, harassment related to sex and constructive unfair dismissal.

[3]The claim form was presented on 21 July 2023. The response was accepted on 25 October 2023.

[4]The hearing before us was originally scheduled for 5 days but was reduced to 4 days for judicial resourcing reasons. The hearing took place in person.

[5]The parties had prepared a bundle of documents with 392 pages. The page numbers on the pdf version of the bundle did not match the numbers on the 1 of 28 hard copy version. The hard copy version went up to page 365(T). In these reasons we refer to the hard copy page numbers.

[6]The respondent provided a cast list and chronology. The chronology was agreed by the claimant, subject to one agreed change to a date.

[7]The complaints and issues for us to determine were identified at a preliminary hearing on 29 April 2024. The list of issues was set out in the case management summary which was at pages 59(H) to 59(M) of the bundle and is included in an appendix below.

[8]We discussed the issues with the parties at the start of the hearing. The judge asked the parties about the complaint of breach of regulation 18(2) of the Maternity and Parental Leave Regulations 1999. This relates to the right to return to work after maternity leave; it was included in the list of issues as an additional complaint in itself. The parties agreed that there was no enforcement provision relating to regulation 18, and that, while the issues about whether the claimant had been afforded the right to return to work would be relevant to the complaints of discrimination and constructive unfair dismissal, there was no separate stand-alone claim under regulation 18.

[9]After discussing these preliminary matters, we heard evidence from the claimant and from four witnesses for the respondent. All had produced and exchanged witness statements. The witness evidence was completed by the end of day 3.

[10]After the witness evidence the tribunal asked the parties to comment on the decision of the EAT in Dobson v North Cumbria Integrated Care NHS Foundation Trust

[2021] ICR 1699

in their closing remarks. Closing remarks were made on day 4. The respondent’s counsel and the claimant both provided written closing remarks and made oral submissions.

[11]After taking some time for deliberation we told the parties our decision and gave our reasons for reaching that decision, outlining our findings of fact, summarising the legal tests we had applied and explaining the conclusions we had reached. The unanimous decision of the tribunal was that:11.1 the complaints of pregnancy and maternity discrimination, indirect sex discrimination, and harassment related to sex failed and were dismissed; and

11.2 the claimant was not dismissed, meaning that the complaints of unfair dismissal were not well-founded and were dismissed.

[12]We record our thanks to the parties, their supporters, witnesses and representatives for their assistance in keeping to the timetable, for putting their cases clearly and succinctly and for their politeness and courtesy to the tribunal and to each other. 2 of 28

[13]The claimant made a request for written reasons by email on 25 October 2024. The judge apologises to the parties for the delay in providing these written reasons. This reflects the current workload in the tribunal.

Findings of fact

[14]An offer of employment as a paralegal in the respondent’s dispute resolution department was made to the claimant, Miss Gil, on 14 May 2021 (page 62). The claimant’s contract of employment said that her normal place of work would be the respondent’s office. Initial arrangements

[15]There was a dispute between the parties about whether there was any formal agreement as part of the original offer of employment that Miss Gil could work from home two days a week. We do not find there was any formal contractual agreement to this effect at that time. We make this finding because:15.1 In her grievance and her evidence to us Miss Gil said that she was told during initial discussions with the recruitment agent that the job could be done from home two days per week. We accept that there may have been some general discussion with the recruitment agent prior to Ms Gil starting about the possibility of working from home but we think that if this had been a formal agreement, it would have been included in the contract or in some other written document.

15.2 In her witness statement Miss Gil did not mention any discussions with the recruitment agent about working from home. Instead, she said that her initial home working arrangement was agreed upon with her then manager, Adrian Taylor, some time after she started working for the respondent, and that she submitted a formal Agile Working request on 16 July 2021 to ‘secure’ the two days per week working from home arrangement. We do not think that she would have described things in that way if it had already been agreed before she accepted the job offer that she would work from home two days a week.

[16]The claimant started working for the respondent on 17 May 2021. In her role as debt recovery paralegal the claimant mainly carried out pre-action correspondence and issuing claims. She did some limited additional tasks as well. She was keen to progress and was considering taking the SQE route to qualify as a solicitor.

[17]The claimant worked five days a week in the office until 29 June 2021. She first worked from home on 30 June 2021. The claimant’s request to work from home regularly

[18]On 1 July 2021, in the context of a weekly email about the working patterns of the team, the claimant sent an email to Mr Taylor asking if she could work from home two days a week (pages 83-84). She said she would really 3 of 28 appreciate having two working from home days, ideally Tuesdays and Thursdays. She gave as her reason for wanting to work from home: ‘so someone is home with the puppies’. She said that her first day working from home (the previous day) had worked well and that she had got plenty done.

[19]The email was not a formal statutory request under the flexible working procedure as the claimant did not have the required six months’ service which was in force at the time.

[20]Mr Taylor worked from home himself two days a week. He responded to the claimant’s email saying, “That is fine if it is working for you”.

[21]There was no express reference in Mr Taylor’s email or in the claimant’s request as to how long the working from home arrangement was to be in place. The basis of the arrangement was not made fully clear in their communications. The respondent’s policies about home working arrangements

[22]Although the pandemic was not the reason the claimant asked to work from home, her request was made against the background increased working from home during the periods of covid lockdowns and restrictions.

[23]The first national lockdown started in March 2020. In the first year of the pandemic a lot of the respondent’s staff worked from home. In April 2021 the respondent issued an updated Agile Working Policy. The respondent circulated this policy to all staff again in July 2021, ahead of a planned change in government restrictions. In its announcement in July 2021, the respondent said that it was planning for all staff currently working from home in full or in part to return to the office from 2 August 2021. It said that this would apply to all staff other than staff who had previously agreed or submitted a formal agile working arrangement/request (page 86).

[24]The respondent also had a Flexible Working Policy. The Agile Working Policy said it was distinct from but designed to work alongside the Flexible Working Policy (page 87). It said that Agile Working arrangements were a non-contractual benefit, while flexible working is a statutory regime (paragraph 1.4 of the policy). It distinguished between occasional working from home and permanent agile working arrangements (paragraphs 2 and 3 of the policy). It said that arrangements could be withdrawn or varied to meet business needs (paragraph 4.5). The claimant’s agile working request

[25]At the suggestion of Mr Taylor the claimant submitted a formal agile working request on 16 July 2021. She asked to work from home two days a week. No written response to this request was sent to the claimant at any stage. She was not told in writing whether it had been granted or refused. This was unfortunate because it led to, or at least contributed to, significant differences in understanding about the arrangements between the parties. 4 of 28

[26]The claimant worked in line with the arrangement she requested until she went on maternity leave about a year later. We accept that she was told informally by Mr Taylor that she could work from home. It was reasonable for her to understand from that that her agile working request had been granted. However, we do not find that the arrangement was or became a contractual one. The respondent’s agile working policy made clear that it was non-contractual.

[27]On 16 November 2021, the claimant passed her probation period. She was sent a letter which confirmed this and said, “May I congratulate you on your performance to date” (page 99).

[28]Over four months after the claimant made her agile working request, there was an exchange of emails about it between Mr Taylor and the respondent’s HR team, in late November 2021 (pages 100-102). The respondent’s HR advisor said that she had realised that they had not finalised a decision on the claimant’s agile working request. Mr Taylor said that he would not support agile working for the claimant at that time as he would first like to see more consistency in her performance. At this stage no-one had spoken to the claimant about any performance concerns. Mr Taylor asked the HR advisor to check whether there were any contractual arrangements in place for the claimant to work from home.

[29]The respondent’s HR Team and Mr Taylor looked into this question and decided that there was no contractual arrangement in place for the claimant to work from home. They were intending to ask her to return to the office full time (page 104). However, that was overtaken by events. The arrangements during the claimant’s early pregnancy

[30]Changes in covid restrictions known as plan B came into effect shortly after this, in about December 2021. For around six weeks in December 2021 and early January 2022 the claimant’s working from home increased from two days a week to five days a week. For part of this period she was isolating because of contact with someone who had covid. She was also in the early stages of pregnancy and was having pregnancy-related symptoms which she reported to the respondent’s HR team. In light of that, the respondent did not ask the claimant to return to the office full time.

[31]From later in January, the claimant returned to the earlier arrangement of working from home two days a week, usually Tuesdays and Thursdays. That remained the case until she went on maternity leave in July 2022. Again, no performance concerns were raised with the claimant during this time.

[32]In May 2022 there was a discussion about arrangements for the claimant’s maternity leave and a formal maternity acknowledgement letter was sent to the claimant. Alleged comment by Mr Snowley 5 of 28

[33]We next make findings of fact about issue 7.1. This concerns a comment which the claimant says was made at about this time, May 2022, by Dean Snowley, the respondent’s finance director. The claimant says that Mr Snowley said that he wished he could “order a mass hysterectomy for all the young women in the office” because too many were getting pregnant.

[34]There was a factual dispute between the parties about this. On this kind of disputed matter, we have to weigh up all the evidence we have before us, decide what weight to attach to that evidence, and reach a conclusion as to what we think is most likely to have happened (the balance of probabilities). Under the Employment Tribunal Rules of Procedure (rule 41), we are not bound by the laws of admissibility which apply in the courts. We can however attach different weight to different types of evidence.

[35]Mr Snowley made a written witness statement and gave evidence to us. He was cross-examined by the claimant about whether he made the comment. His evidence was that he did not make the comment or anything like it.

[36]The claimant accepted that she did not hear the comment. She said she was told about it by colleagues who had overheard it. She relied on documents from two colleagues. One was a document signed and dated by a colleague. The other was a copy of a colleague’s grievance outcome in which one of the grievance complaints was that Mr Snowley had made this comment. The grievance outcome recorded the respondent’s decision that this comment had not been made.

[37]Neither of the claimant’s two colleagues attended the hearing before us to give evidence. There was no opportunity for their evidence to be tested. For example, we did not hear how sure the claimant’s colleagues were that they heard the comment, how sure they were that it was Mr Snowley who said it and not someone else, how sure they were about the context, and other possible aspects which may have shed light on what was said and what was not said.

[38]This is not a situation where we have to decide a dispute between two witnesses who have given evidence to us. The claimant accepted that she did not hear the comment. Mr Snowley said he did not make it. We decided that we should attach more weight to the evidence of Mr Snowley than to the untested evidence relied on by the claimant. We accept Mr Snowley’s evidence and find that he did not make this comment. Events during the claimant’s maternity leave

[39]We return to our findings on the chronology of events.

[40]In June 2022 Mr Taylor left the respondent. Mr Snowley took over interim management of the debt recovery department jointly with Frances Tierney who was at that time a partner in the dispute resolution team.

[41]The claimant was at work for a period of about a month after Ms Tierney and Mr Snowley took over as interim managers of the debt recovery 6 of 28 department. The claimant’s maternity leave began on 18 July 2022. Maternity cover was put in place for the claimant’s role whilst she was on maternity leave. The claimant’s maternity cover worked in the office five days a week.

[42]On 1 September 2022, while the claimant was on maternity leave, Stephen Baker joined the respondent in the role of head of the dispute resolution department. Previously, the department had not been achieving required levels of performance and had a fairly high turnover of staff. Mr Baker was appointed to provide a complete re-set and a change in direction, to ensure that higher levels of performance were achieved. Mr Baker was successful in achieving this.

[43]While the claimant was on maternity leave she was keeping an eye on the job market. She applied for some roles including in November 2022 a job with BA. Discussions about the claimant’s return to work

[44]In March 2023 the claimant got in touch with the respondent’s HR department about arrangements for her return to work after her maternity leave. In an email on 11 March 2023 she said she was making a formal flexible working request to reduce her days to three days a week, including two days in the office and one from home (page 115). She said she had always worked from home two days a week before her maternity leave and was able to work efficiently.

[45]In the course of email exchanges about the claimant’s proposal to reduce her working days, the respondent’s HR adviser suggested another way to facilitate a phased return, by the claimant using accrued holiday rather than reducing her days. The claimant preferred that approach and decided not to apply to reduce her working days as she had requested on 11 March 2023. She said she would instead like to return to work taking 2 days holiday each week, with the 2 days a week working from home days that she had always had, and one day in the office (page 130).

[46]A little later, during a telephone call on around 28 March 2023 the claimant asked if she could increase her work from home days from two to three. The HR advisor emailed the claimant to say that this request would constitute a flexible working request and that a meeting would be set up to discuss it in more detail (page 139). The claimant was not asked to complete a flexible working request form was completed. The respondent treated the request made by the claimant in the email/telephone exchanges as a flexible working request (page 146). Flexible working request meeting

[47]The meeting to discuss that request took place by Teams on 6 April 2023 between Mr Baker, the claimant and the senior HR advisor (page 159). This was only the second time that the claimant had met Mr Baker as he had 7 of 28 joined the respondent while she was on maternity leave and she had not yet worked any Keeping in Touch (KIT) days.

[48]In the meeting the claimant said that she always had working from home days, this had been arranged through Mr Taylor and HR, and it had all been discussed and agreed. She said that what she was asking for was one extra day from home per week, three days a week instead of the usual two.

[49]Mr Baker said she could potentially be required to return to the office five days a week as she had joined in a stranger time, just after covid and that those measures had been taken in light of that. He described himself as ‘a five days a week from the office kind of guy’. The claimant said that Mr Taylor was a ‘working from home guy’.

[50]The respondent said the claimant would receive a written outcome letter. KIT days and the claimant’s role

[51]The claimant began working KIT days on 18 or 19 April 2023. She went to a team dinner on the evening on one of those days.

[52]During her first KIT days the claimant spoke to Mr Baker about her duties. She had concerns from talking to her maternity cover about whether the role still included all the tasks the claimant had been doing herself before her maternity leave. We accept the evidence of the claimant that when she asked Mr Baker about the role, he responded in a non-committal way by saying, “I’m not saying no and I’m not saying yes but I am saying I like the way things run now.” We find that Mr Baker thought the claimant was asking to expand her core role. He was not proposing any change to the claimant’s role or the way she did it. It seems likely that the claimant and Mr Baker were at cross purposes in this conversation.

[53]We considered the evidence before us about the nature of the duties the claimant did before she went on maternity leave and what was being proposed that she do after her return. We do not find that any duties were removed from the role. The flexible working request outcome

[54]The flexible working request outcome was sent to the claimant on 24 April 2023. It said that the claimant’s request to work from home for three days a week was refused. An alternative proposal was put forward for the claimant to work from home one day a week on a trial basis.

[55]That decision meant that the claimant’s previous working arrangements were to change from the two days a week she had previously worked, to one day a week.

[56]The letter explaining the outcome of the flexible working request emphasised that working from the office was important for the ability of the team to serve their clients and to produce better quality work in line with the firm’s processes. 8 of 28 The supervision of the claim form documents

[57]The claimant had more KIT days on about 26 and 27 April and 9 and 10 May.

[58]The claimant had a discussion with Mr Baker during her KIT day on 10 May. She says that in this discussion he implied that she was not capable of doing her job. Mr Baker denies this.

[59]We find that there was a discussion between the claimant and Mr Baker about a claim form which the claimant had prepared and which Mr Baker was supervising. The initial discussion was about the statement of value and the calculation of interest. Mr Baker asked the claimant to approach these elements differently. The claimant re-did those parts of the form.

[60]There was then another discussion between the claimant and Mr Baker about an accompanying form which the claimant had completed, relating to service of the claim form outside the jurisdiction. Mr Baker thought that the claimant had not ticked the correct box on the form, but he was not sure which was the correct box to tick. The claimant did not agree with Mr Baker’s view. She said she had done it in the way she had previously been asked to do it. Mr Baker said he would look into it. We find that for this reason, the forms to issue the claim were not completed on the claimant’s KIT day.

[61]We find that Mr Baker did not instruct anybody to revisit the claim form which the claimant had prepared. We find that later (on a day when the claimant was not at work) the claimant’s maternity cover took the necessary steps to finalise the forms and issue the claim.

[62]We find that the claimant was not readily accepting of feedback about her work and that others, including Ms Tierney, had found her response to feedback to have been prickly. We do not find that in these discussions Mr Baker implied that the claimant was not capable of doing her job. These were normal points for a partner to raise during supervision of a junior colleague’s work, even if other partners had taken a different view in the past. The claimant’s grievance and resignation

[63]On 10 May 2023 the claimant made a written grievance complaint to HR in response to the flexible working outcome and some other matters (page 203).

[64]An informal meeting about the grievance took place between the claimant and Alistair McArthur on 24 May at which we find the claimant told Mr McArthur she was intending to resign.

[65]The claimant gave notice of resignation on 31 May 2023 giving three months’ notice (page 219). 9 of 28

[66]The respondent invited the claimant to await the outcome of the grievance about her return to work and offered her 48 hours to consider whether she wanted to withdraw her resignation (page 230). The claimant replied to say that she did not need more time and asked for her notice to be accepted as sent.

[67]On 1 June 2023, the day after the claimant resigned, she was called by British Airways and offered a role as performance development manager (page 343). The claimant accepted the job.

[68]On the same day, 1 June, the claimant notified Acas for early conciliation.

[69]The claimant’s maternity leave ended on 5 June 2023. The claimant was signed off sick by her doctor and did not return to work before the end of her employment on 31 August 2023.

[70]In the interim, the claimant’s grievance was dealt with. She had a meeting with Darren Smith on 14 June 2023. He also met with Ms Tierney and Mr Baker. A detailed grievance outcome letter was sent to the claimant on 1 July 2023. Her grievance was not upheld. She did not appeal.

[71]The Acas early conciliation certificate was issued on 13 July and the claimant presented her employment tribunal claim on 21 July.

[72]After the claimant’s employment with the respondent terminated on 31 August 2023, she began her new role with British Airways on 4 September 2023. That role is shift work and the claimant is able to manage childcare by planning her shifts around her partner’s shifts. We did not have any evidence about the childcare arrangements which the claimant was intending to put in place for her return to work with the respondent.

The law

[73]In this section of our reasons we identify the relevant legal principles. (We did not read out these relevant legal provisions when explaining our reasons at the hearing. Instead, we gave a summary of the legal principles as we explained our conclusions.) Equality Act 2010

[74]Sex and pregnancy and maternity are protected characteristics under section 4 of the Equality Act 2010. Pregnancy/maternity discrimination

[75]Pregnancy and maternity discrimination by an employer is prohibited by sections 18 and 39 of the Equality Act 2010. Section 18 (as in force at the relevant time and as far as relevant) said: “(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 — 10 of 28 (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. … (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).”

[76]When considering the question of causation under section 18, the tribunal must ask itself the standard ‘reason why’ question in relation to the unfavourable treatment: it must ask whether the fact that the claimant was pregnant or on maternity leave operated on the respondent’s mind. It is not sufficient for the ‘but for’ test to be satisfied (South West Yorkshire Partnership NHS Foundation Trust v Jackson and others

UKEAT/0090/18/BA

). Indirect sex discrimination

[77]Section 19 of the Equality Act 2010 deals with indirect discrimination. It says: “(1) A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— 11 of 28 (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

[78]Sex is one of the relevant protected characteristics for the purpose of section 19.

[79]In Dobson v North Cumbria Integrated Care NHS Foundation Trust

UKEAT/0220/19/LA

, the EAT reviewed the authorities on judicial notice and particular disadvantage arising from childcare responsibilities, concluding at paragraph 46 that two points emerge: “a. First, the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours is a matter in respect of which judicial notice has been taken without further inquiry on several occasions. We refer to this fact as ‘the childcare disparity’; b. Whilst the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by Courts at all levels for many years. As such it falls into the category of matters that, according to Phipson [on Evidence, 19th edition], a tribunal must take into account if relevant.”

[80]In paragraph 50 of Dobson, the EAT further explains that: “Taking judicial notice of the childcare disparity does not necessarily mean that the group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question... if the PCP … involves some other arrangement that might not necessarily be more difficult for those with childcare responsibilities, then it would be open to the Tribunal to conclude that the group disadvantage is not made out. Judicial notice enables a fact to be established without specific evidence. However, that fact might not be sufficient on its own to establish the cause of action being relied upon. As is so often the case, the specific circumstances will have to be considered and one needs to guard against moving from an ‘indisputable fact’ (of which judicial notice may be taken) to a ‘disputable gloss’(which may not be apt for judicial notice)… Taking judicial notice of the childcare disparity does not lead inexorably to the conclusion that any form of flexible working puts or would put women at a particular disadvantage.” 12 of 28

[81]In a complaint of indirect sex discrimination by a female claimant, the claimant must show that a provision, criterion or practice (a ‘PCP’) has been applied that puts (or would put) women, including her, at a particular disadvantage. If she is able to do so, the burden shifts to the employer to show that the PCP was imposed in pursuit of a legitimate aim and was a proportionate means of achieving that aim. The legitimate aim relied on must correspond to a real need and must be appropriate with a view to achieving the objectives pursued, and reasonably necessary to that end.

[82]The legal principles of justification have been summarised by the EAT in City of Oxford Bus Services Ltd v Harvey [2018] 12 WLUK 667 (paragraph 22):82.1 The burden is on the employer to establish justification;

82.2 The assessment of justification is for the tribunal and is objective in nature;

82.3 A critical evaluation is required of whether the employer’s reasons demonstrate a real need to take the action in question;

82.4 The employment tribunal must assess not only the needs of the employer but also the discriminatory effect on the claimant and those who share her protected characteristic, and must evaluate whether the needs are sufficient to outweigh the discriminatory effect;

82.5 Proportionality requires a balancing exercise with the importance of the legitimate aim being weighed against the discriminatory effect of the treatment, a measure must be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so;

82.6 ‘Reasonably’ necessary means that the employer is not required to prove there was no other way of achieving its objectives, but the test is something more than the range of reasonable responses. Harassment related to sex

[83]Harassment related to sex is prohibited by sections 26 and 40 of the Equality Act. Section 26 says (as far as relevant): “(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. 13 of 28 … (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;

[84]Section 136 provides for a shifting burden of proof: "(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) This does not apply if A shows that A did not contravene the provision."

[85]This means that if there are facts from which the tribunal could properly and fairly conclude that there has been unlawful discrimination, the burden of proof shifts to the respondent.

[86]If the burden shifts to the respondent, the respondent must provide an “adequate” explanation, which proves on the balance of probabilities that the respondent did not discriminate.

[87]The respondent would normally be expected to produce “cogent evidence” to discharge the burden of proof. If there is a prima facie case and the explanation for that treatment is unsatisfactory or inadequate, then the tribunal must make a finding of discrimination. Employment Rights Act 1996

[88]The claimant also makes complaints under the Employment Rights Act 1996 relating to her dismissal. Constructive dismissal

[89]The definition of dismissal in complaints of automatic and ordinary unfair dismissal includes constructive dismissal. Section 95(1)(c) provides that an employee is dismissed where: “the employee terminates the contract under which [she] is employed (with or without notice) in circumstances in which [she] is entitled to terminate it without notice by reason of the employer’s conduct.” 14 of 28

[90]Western Excavating (ECC) Ltd v Sharp

[1978] IRLR 27

set out the elements which must be established in constructive dismissal cases. The employee must show:90.1 that there was a fundamental breach of contract on the part of the employer;

90.2 that the employer’s breach caused the employee to resign; and

90.3 that the employee did not affirm the contract, for example by delaying too long before resigning or by actions consistent with the contract remaining in place.

[91]The claimant in this case relies on breaches of the implied term of trust and confidence. The implied term was explained by the House of Lords in Malik v Bank of Credit and Commerce International SA

1997 ICR 606

, HL as a term to the effect that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. Any breach of the implied term of trust and confidence is a fundamental breach of contract, entitling the employee to treat the contract as being at an end.

[92]Whether there has been a breach of the implied term is a highly contextspecific question, and is to be considered objectively, from the perspective of a reasonable person in the claimant’s position (Tullett Prebon plc v BGC Brokers LP

2011 IRLR 420

[93]If a constructive dismissal is established, the tribunal must consider whether the dismissal is fair. The claimant makes complaints of both automatic and ‘ordinary’ unfair dismissal. Automatic unfair dismissal

[94]Section 99 of the Employment Rights Act says: “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.”

[95]Under regulation 20 of the Maternity and Parental Leave Regulations 1999, prescribed reasons include reasons connected with the pregnancy of the employee, with the fact that the employee has given birth to a child, or with the fact that the employee took, sought to take or availed herself of the benefits of ordinary or additional maternity leave. 15 of 28

[96]A dismissal which is contrary to section 99 is ‘automatically’ unfair. The tribunal does not need to consider whether the dismissal was reasonable in the circumstances. ‘Ordinary’ unfair dismissal

[97]An employee with two or more years’ service has the right not to be unfairly dismissed (section 94 of the Employment Rights Act). This is sometimes called ‘ordinary’ unfair dismissal, to distinguish it from automatic unfair dismissal.

[98]Section 98 of the Employment Rights Act sets out the tests for determining whether there has been an ‘ordinary’ unfair dismissal. Subsection 1 provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

[99]Capability and ‘some other substantial reason’ are reasons falling within subsection (2).

[100]Where there is a potentially fair reason for dismissal, section 98(4) of the Employment Rights Act 1996 says that the question of whether the dismissal is fair or unfair: a) “depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a fair reason for dismissing the employee; and b) shall be determined in accordance with equity and the substantial merits of the case.”

[101]This includes considering whether the respondent acted in a procedurally fair manner and whether dismissal was within the range of reasonable responses open to the employer.

[102]The test under section 98(4) recognises that there may be more than one reasonable approach for an employer to take in the circumstances of the case; the tribunal must assess whether the respondent’s was one such reasonable approach. The tribunal is not deciding what it would have done in the circumstances, and must not substitute its own view for that of the employer. Conclusions 16 of 28

Conclusions

[103]We have considered the issues set out in the case management order, but in a different order. We have started with the complaints of maternity and pregnancy discrimination, indirect sex discrimination and harassment. We then come on to the complaints about dismissal. (As explained above, paragraph 5 in the list of issues (breach of regulation 18 of the Maternity and Parental Leave Regulations 1999) is not a stand-alone complaint.) Pregnancy/maternity discrimination

[104]The claimant made four allegations of pregnancy and maternity discrimination (set out in paragraph 4 of the list of issues). The first two complaints are:104.1 the refusal of the flexible working request on 24 April 2023; and

104.2 the removal of a previously agreed working pattern with two days a week worked from home.

[105]We have found that these first two complaints happened as alleged. The claimant’s request to work three days a week from home was refused. The claimant was told that on her return she could not continue to work two days a week from home as she had done previously. She was offered a trial period of working one day a week from home instead. That meant that the claimant could not work her preferred working pattern on her return to work from maternity leave. That amounted to unfavourable treatment.

[106]We go on to consider whether that unfavourable treatment was because of pregnancy or maternity. The context in which the discussions about the claimant’s working pattern took place was the claimant’s return to work from maternity leave, but that is not sufficient in itself. We need to consider the reason why the unfavourable treatment happened. There was a change in the respondent’s approach to working from home before the claimant left to go on maternity leave, to its approach when she was making arrangements for her return. That is a fact from which we could conclude, without explanation from the respondent, that the claimant’s maternity absence played a part in the respondent’s treatment of her. The burden shifts to the respondent.

[107]We have concluded that the respondent has met that burden. The refusal of the claimant’s request to work from home three days a week, and the change from two days a week to a trial period of one day a week, were not because of the claimant’s pregnancy or because of her being on maternity leave. They were because of the different approaches of Mr Taylor and Mr Baker. Mr Taylor was more accepting of working from home. Mr Baker, who had been given the task of improving the performance of the dispute resolution department, preferred staff to work in the office. We accept that the reason for Mr Baker’s decisions in relation to the claimant’s home working request was to ensure that the claimant, a junior member of the department, could be more adequately supported and supervised. We have concluded that neither the claimant’s pregnancy or maternity leave played a 17 of 28 part in Mr Baker’s thinking and the thought processes around his decision on the claimant’s flexible working request.

[108]As we have concluded that the treatment complained of was not because of pregnancy or maternity leave, the first and second complaints of pregnancy and maternity discrimination do not succeed.

[109]We have not found that the third complaint of pregnancy/maternity discrimination happened as alleged. The complaint was that the respondent removed key aspects of the claimant’s role. We did not find that any aspects of the claimant’s role were removed. We found that there was a discussion about additional tasks and that Mr Baker’s response was non-committal. That did not amount to unfavourable treatment. If we had found Mr Baker’s comment to have amounted to unfavourable treatment, we would not have found that it was because of pregnancy or maternity or related to pregnancy and maternity in any way. It was because, in the context of his plans for the department, he thought the scope of the claimant’s role was appropriate. He did not dismiss the possibility of including additional tasks.

[110]The fourth and final complaint of pregnancy discrimination is that Mr Baker implied that the claimant was not capable of doing her job. We have not found that this happened as alleged. We have found that, on a day when the claimant was not in the office, the claimant’s maternity leave cover completed work which the claimant had started. We have found that the exchanges between the claimant and Mr Baker about the claimant’s work were normal supervision discussions. They did not amount to unfavourable treatment. Again, if we had found them to have amounted to unfavourable treatment, we would have concluded that they were not because of pregnancy or maternity.

[111]For these reasons, the complaints of pregnancy and maternity discrimination do not succeed. Indirect sex discrimination

[112]The indirect discrimination complaint is set out in paragraph 6 of the list of issues. Indirect discrimination is a complex claim and, as is often the case, it has not been the focus of the evidence and submissions in the hearing before us. As a result, it has not been straightforward for us to reach our conclusions on this complaint.

[113]The first question for us is whether the respondent had a PCP, that is a provision, criterion or practice. A PCP must be a neutral factor or (in this context) a requirement that is applied to both men and women. This part of the complaint is for the claimant to establish. The PCP relied on by the claimant, as set out in the list of issues is ‘requiring the claimant to attend the office’.

[114]A requirement framed in this way, incorporating a specific reference to the treatment of the claimant herself, cannot be a neutral PCP. It is not our role to amend the way the claimant puts the PCP, the primary responsibility to 18 of 28 put her case lies with her. However, we have to approach this with the overriding objective in mind. This includes ensuring so far as practicable that the parties are on an equal footing, which is of particular relevance when, as here, one party is legally represented and one is not. With the overriding objective in mind, we considered whether a neutral PCP is understandable from the PCP as expressed in the list of issues. The requirement to attend the office is clearly the aspect of the respondent’s working arrangements which the claimant complains about and which both parties understood as the ‘problem’ for the claimant. We decided that if the word ‘staff’ is substituted for ‘the claimant’, the requirement is understandable as a neutral PCP.

[115]That neutral PCP of ‘requiring staff to attend the office’ was applied to the claimant, and was applied to all staff including men and women. This was explained by the respondent in the announcement in July 2021 when it said that a return to the office from 2 August 2021 was planned for all staff (other than staff who had previously agreed or submitted a formal agile working arrangement/request).

[116]We next consider the question of whether that neutral PCP put women at a particular disadvantage when compared with men. Again, the burden is on the claimant in relation to this element of the complaint. The disadvantage relied on by the claimant as set out in the list of issues is that women, who bear greater childcare responsibilities than men, would find a long commute five days a week rather than two or three days a week, to be less convenient or difficult to balance with available childcare. She also told us in her closing submissions that the long commute associated with working in the office would lengthen the working day to the extent that she would not see her child at all on the days when she was working in the office.

[117]We can take judicial notice of the childcare disparity because it is something that is so well known that it is incumbent on us to take notice of it. The childcare disparity is that there are currently disparities between men and women in relation to childcare and that women are more likely to be child carers than men, as explained in Dobson v North Cumbria. However, taking judicial notice of the childcare disparity does not necessarily mean that group disadvantage is made out. We have to look at the way that the childcare disparity relates to the PCP in question here.

[118]The PCP in Dobson was a requirement to work flexibly, including at weekends. That is different to the PCP here. Here we are looking at a requirement to attend the office. Although the claimant did not spell it out in exactly this way, we understand her to be saying that working days which include travel time are longer than working days when working from home, and that these longer days might be more difficult to balance with childcare (and might stop a mother from seeing her child at all on a working day). However, we had no evidence from the claimant about this disadvantage, either in relation to her own position or to women as a group. A requirement to work in the office rather than at home might not necessarily be more difficult for those with childcare responsibilities. It would depend on the locations of home, work and childcare, and the distance between them. For 19 of 28 example, a requirement to work in the office would not necessarily be more difficult for someone who uses workplace childcare services, or someone with childcare responsibilities who lives near to their workplace.

[119]The claimant has not satisfied us that, even taking the childcare disparity into account, there is a particular disadvantage for women compared with men from having to attend the office rather than work from home. That is a step further than the fact of the childcare disparity outlined in Dobson and does not seem to us to be an ‘indisputable fact’ that is apt for judicial notice, in other words that we ought to accept it without the claimant advancing any specific evidence in support.

[120]Further, we did not have evidence from the claimant from which we could conclude that she was put (or would have been put) at that disadvantage herself. While she told us that the requirement to travel to work would mean she would not see her child on a working day, she did not tell us about any impact on her ability to balance her childcare arrangements.

[121]Therefore, we have concluded that a neutral PCP of a requirement to attend the office was applied by the respondent in this case, but the claimant has not established that it put women at a particular disadvantage when compared with men, or that it put her at that disadvantage.

[122]In case we are wrong about that, we have gone on to consider objective justification. That requires us to evaluate whether the PCP was a proportionate means of achieving a legitimate aim. In relation to this element of the complaint, the burden of proof is on the respondent.

[123]We conclude that if it had been established that the PCP had a particular disadvantage on women, including the claimant, we would have gone on to decide that the PCP was justified in this case, for the following reasons:123.1 There was a real need for the respondent to take the action in question, in light of the past performance of the dispute resolution department and the respondent’s aim to appoint a new head of department to provide a profitable and growth driven department. The respondent’s aim to manage and performance manage employees was part of that strategy. That was particularly important for junior employees, including the claimant, who might require closer or more frequent supervision to ensure that the respondent met its aims of providing clients with a high standard service, producing high quality work, and training and developing employees. Those aims were legitimate aims.

123.2 The requirement to work in the office was an appropriate means of achieving those aims, as supervision, training and development of staff could be better managed in the office. Being in the same place as other staff doing their job, for example hearing other lawyers on the phone to clients and having ready access to more senior lawyers, would achieve these aims. 20 of 28

123.3 The requirement was reasonably necessary and proportionate. The PCP was relaxed for those who had agreed or submitted agile working requests. In the claimant’s case, the respondent proposed an alternative working pattern with one day working from home for a trial period. That approach balanced the impact of the requirement to attend the office on the claimant (and women as a group) with the impact on the firm of staff working from home. Further, home working arrangements could be kept under review during the trial period and increased if successful.

[124]Having carried out this balancing exercise we have concluded that the respondent would have met the burden of showing that the PCP in this case was objectively justified.

[125]For these reasons, the complaint of indirect sex discrimination fails and is dismissed. Harassment related to sex

[126]The claimant made one complaint of harassment related to sex about a comment set out in paragraph 7 of the list of issues.

[127]We have not found that the alleged comment was said. This complaint of harassment therefore fails on its facts. Constructive unfair dismissal

[128]Finally, we come back to paragraph 2 in the list of issues which is the complaint of unfair dismissal.

[129]The claimant says that her resignation should be treated as a dismissal under s.95 of the Employment Rights Act, that is a constructive dismissal. She says the respondent fundamentally breached her contract of employment by breaching the implied term of trust and confidence. That term is explained in Malik v BCCI as a term that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the trust and confidence between employer and employee. The assessment of whether conduct was calculated or likely to destroy or seriously damage trust and confidence is an objective one from the perspective of a reasonable person in the claimant’s position.

[130]The acts relied on by the claimant as breaches of trust and confidence are the same as the matters relied on as complaints of pregnancy and maternity discrimination, indirect sex discrimination, harassment and the changes to the claimant’s role outlined in paragraph 5.1 of the list of issues. Not all of the acts took place as alleged. We did not find that key aspects of the claimant’s role were removed as set out in paragraphs 4.1.3 or 5.1 or that Mr Barker implied that the claimant was not capable of doing her job as set out in paragraph 4.1.4. We did not find that the alleged act of harassment occurred. 21 of 28

[131]The acts which we have found to have taken place are:131.1 the refusal of the claimant’s flexible working request on 24 April 2023;

131.2 The refusal to allow the claimant to work her previously worked pattern of two days a week working from home (with an alternative proposal of one day a week working from home for a trial period);

131.3 We found that Mr Baker was non-committal about whether the claimant would be given additional tasks after her return to work, and that there was a supervision discussion about a claim form and related documents between the claimant and Mr Baker.

[132]Having reminded ourselves of our findings in relation to the alleged breaches of contract, we considered whether that conduct, either individually or taken as a whole, over the period of April to May 2022, breached the implied term of trust and confidence.

[133]There were aspects which the respondent could have dealt with better. In particular, the claimant was not given any written response to the agile working request she made in July 2021. She worked the pattern she had requested for about a year without the respondent objecting. Although the respondent had some concerns about the claimant working from home she was not told about them. Against that background it was understandable that the claimant was unhappy about the required changes to her working pattern which were to coincide with her return to work from maternity leave.

[134]However, the respondent’s agile working policy made clear that it was noncontractual and that arrangements could be withdrawn or varied. In addition, when considering the claimant’s flexible working request the respondent offered the claimant some working from home for a trial period. Viewed objectively and taking these factors into account, the respondent’s conduct was not such that it was calculated or likely to destroy or seriously likely to damage trust and confidence.

[135]As there was no breach of the implied term of trust and confidence, the claimant resigned and was not dismissed. Her complaints of unfair dismissal under sections 99, 94 and 98 of the Employment Rights Act fail and are dismissed. Employment Judge Hawksworth Date: 12 December 2024 N Gotecha 22 of 28 Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/ 23 of 28 Appendix – list of issues

Conclusions

[1]Time limits 1.1. Were the harassment complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1.1.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 1.1.2. If not, was there conduct extending over a period? 1.1.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.1.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 1.1.4.1. Why were the complaints not made to the Tribunal in time? 1.1.4.2. In any event, is it just and equitable in all the circumstances to extend time?

[2]Unfair dismissal 2.1. Was the claimant dismissed? 2.1.1. Did the respondent do the following things: 2.1.1.1. The alleged acts relied upon as unfavourable treatment on grounds of pregnancy or maternity? 2.1.1.2. The alleged acts of indirect sex discrimination? 2.1.1.3. The alleged acts of harassment? 2.1.1.4. The alleged acts set out in para.5.1 below? 2.1.2. Did that conduct, individually or when taken as a whole, breach the implied term of trust and confidence? The Tribunal will need to decide: 2.1.2.1. whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and 2.1.2.2. whether it had reasonable and proper cause for doing so. 2.1.3. Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation. 2.1.4. Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. 24 of 28 2.2. If the claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract? 2.3. Was it a potentially fair reason? 2.4. Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimant? 2.5. The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. 2.6. If the reason or principal reason for the breach of contract were reasons connected with pregnancy or maternity leave then the claimant will be regarded as unfairly dismissed by reason of reg.20 of the Maternity and Parental Leave Regulations 1999.

[3]Remedy for unfair dismissal 3.1. The claimant has not suffered financial loss so there will not be a compensatory award. 3.2. What basic award is payable to the claimant, if any?

[4]Pregnancy and Maternity Discrimination (Equality Act 2010 section 18) 4.1. Did the respondent treat the claimant unfavourably by doing the following things: 4.1.1. Refuse the claimant’s flexible working request on 24 April 2023? 4.1.2. Remove her previously agreed working pattern of 2 days per week working from home on 24 April 2023? 4.1.3. Remove key aspects of the claimant’s role during a conversation with Stephen Barker on Thursday 27 April 2023? 4.1.4. By Mr Barker, on 28 April 2023, imply that the claimant wasn’t capable of doing her job, state that she had completed a claim form incorrectly and that he needed to check it, state that there was no way that a court would accept the claim form completed in that way and have her maternity leave cover recheck her work to ensure that she knew what she was doing? 4.2. Did the unfavourable treatment take place in a protected period? 4.3. If not did it implement a decision taken in the protected period? 25 of 28 4.4. Was the unfavourable treatment because of the pregnancy? 4.5. Was the unfavourable treatment because the claimant was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave?

[5][Breach of reg.18(2) of the Maternity & Parental Leave Regulations 1999 – not a stand alone claim as explained above 5.1. The claimant’s case is that, during her KIT days, Mr Barker made clear that the role that she had done was no longer going to be available. In particular, she states that she had a free rein to file defences, draft witness statements and see a claim through to conclusion with a senior member of the department signing off all forms. She states that Mr Barker told her that that was not what she would be doing on her return and everything would be handed off to a solicitor if a response was filed to the LBA. She regarded this as a massive reduction in duties, the loss of the bulk of her fee earning and the most interesting part of her job. 5.2. The tribunal will have to make findings of fact on whether this happened or not and then ask itself the following questions. 5.3. Did the respondent fail to permit the claimant to return from additional maternity leave to the job in which she was employed? 5.4. If so, was it not reasonable practicable for the respondent to permit her to return to that job? 5.5. If so, did the respondent fail to permit the claimant to return from additional maternity leave to a job which was both suitable for her and appropriate for her to do in the circumstances?]

[6]Indirect discrimination (Equality Act 2010 section 19) 6.1. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 6.1.1. Requiring the claimant to attend the office. 6.2. Did the respondent apply the PCP to the claimant? 6.3. Did the respondent apply the PCP to men or would it have done so? 6.4. Did the PCP put women at a particular disadvantage when compared with men in that women, who bear greater child care responsibilities than men, would find a long commute 5 days a week rather than 2 or 3 days a week to be less convenient or difficult to balance with available childcare. 26 of 28 6.5. Did the PCP put the claimant at that disadvantage or would it have put the claimant at that disadvantage? 6.6. Was the PCP a proportionate means of achieving a legitimate aim? In paragraph 48 of the amended grounds of response the respondent says that its aims were: 6.6.1. The Respondent's ability to service its clients and provide high quality legal services that its clients can rely upon; 6.6.2. The Respondent's values and meeting those values; 6.6.3. The Respondent's strategy of being a business based on growth, relationships, ambition, collaboration and excellence and meeting those strategic aims/values; 6.6.4. The Respondent's aim to appoint a new Head of Department in the Dispute Resolution department that would provide a profitable and growth driven department within the Respondent; 6.6.5. The Respondent's fast growth Dispute Resolution team and meeting those strategic aims; 6.6.6. The Respondent's management structures and pyramid approach to team structures; 6.6.7. The Respondent's ability to manage and performance manage employees including but not limited to junior employees; 6.6.8. The Respondent's aim to effectively manage and performance manage the Claimant; 6.6.9. The Respondent's ability to train and develop its employees, including the Claimant, to the highest standard and ensure they are continuing their professional career development; 6.6.10. The Respondent's ability to ensure that employees are kept up to date with developments in the Respondent; 6.6.11. The Respondent's aim to ensure that its employees are fully engaged in their employment with the Respondent and in the values and strategy of the Respondent; and 6.6.12. The Respondent's aim of making the best use of its new headquarters at Brennan House in Farnborough and the substantial investment that it has put into those facilities. 6.7. The Tribunal will decide in particular: 6.7.1. was the PCP an appropriate and reasonably necessary way to achieve those aims; 6.7.2. could something less discriminatory have been done instead; 6.7.3. how should the needs of the claimant and the respondent be balanced?

[7]Harassment related to sex (Equality Act 2010 section 26) 27 of 28 7.1. Did the respondent do the following things: 7.1.1. In about May 2022, did Dean Snowley say that he wished he could “order a mass hysterectomy for all the young women in the office” because too many were getting pregnant? 7.2. If so, was that unwanted conduct? 7.3. Did it relate to sex? 7.4. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 7.5. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[8]Remedy for discrimination or harassment 8.1. Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? 8.2. What financial losses has the discrimination caused the claimant? The claimant has not suffered any loss of earnings. 8.3. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 8.4. Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result? This will only be relevant if the claimant succeeds in a claim that her dismissal was unlawful discrimination and is awarded compensation for injury to feelings as a result. 8.5. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 8.6. Did the respondent or the claimant unreasonably fail to comply with it? 8.7. If so is it just and equitable to increase or decrease any award payable to the claimant? 8.8. By what proportion, up to 25%? 8.9. Should interest be awarded? How much? 28 of 28