Miss A Kemp v Mr D Turner and Mrs M Turner T/a The Nook Cafe: 3310767/2023
EMPLOYMENT TRIBUNALS
Case No 3310767/2023
Between
Miss A KempClaimantMr D Turner and Mrs M Turner T/a The Nook CafeRespondent
Before
Employment Judge GrahamMr M Rahman (instructed by Counsel) for respondentDate 5 December 2025
JUDGMENT
[1]The complaint for unauthorised deductions succeeds in part, and the Respondents must pay the Claimant £132.34 gross.[2]The Respondents were in breach of the duty to provide an initial statement of particulars under s.1 Employment Rights Act 1996. The Respondents must pay the Claimant £661.70.[3]All the other complaints fail and are dismissed. Approved by: JUDGMENT having been sent to the parties on 9 December 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]ACAS Early Conciliation in this matter took place between 22 June 2023 and 3 August 2023.[2]By ET1 dated 1 September 2023 the Claimant makes complaints of:2.1 Automatic unfair dismissal – s. 99 Employment Rights Act 19962.2 Unfavourable treatment because of pregnancy and maternity – s. 18 Equality Act 20102.3 Harassment related to sex – s. 26 Equality Act 20102.4 Detriment for family and domestic reasons – s. 47C Employment Rights Act 19962.5 Unauthorised deductions from wages – s. 13 Employment Rights Act2.6 Failure to pay holiday pay – Regulation 14 Working Time Regulations2.7 Wrongful dismissal2.8 Failure to provide a section 1 Employment Rights Act 1996 statement2.9 Failure to give rest breaks and compensatory rest – Regulations 12 and 24 Working Time Regulations 1998[3]ET3s dated 16 January 2024 were filed denying the complaints.[4]The matter was the subject of a case management hearing before Employment Judge Laidler on 13 March 2024 where the legal issues were clarified and directions were issued for this hearing.[5]At the start of the final hearing we were provided with a hearing bundle of 277 pages. From the Claimant we received witness statements from the Claimant, Hayley Clarke (Claimant’s sister), Jamie Skipper (Claimant’s brother), Joanne Kemp (Claimant’s mother), Katylin Kemp (Claimant’s sister). From the Respondent we received witness statements from Maria Turner (First Respondent), Daryl Tuner (Second Respondent), Helen Harridge (friend of Mrs Turner), Jay McWilliams (co-owner of Hedgehog Plants), Richard Martin (owner and landlord of the Risby Barn Centre), and Julie Gowans (former employee of the Respondents).[6]All of the witnesses save for Ms Gowans attended to give evidence in person. We placed limited weight of Ms Gowans’ witness statement as she was not present to be questioned on her evidence.[7]The witness evidence was completed by the end of 3 December 2025. Submissions were delivered on 4 December 2025, and we issued an oral decision on 5 December 2025 before then dealing with remedy. A written judgment was issued on 9 December 2025.[8]The Claimant has dyslexia which was disclosed during the course of the hearing. We have made allowances for this impairment. List of Issues[1]Automatic unfair dismissal – s 94, 98 and 99 Employment Rights Act 1996 (“ERA”)1.1 Was the Claimant dismissed? The Claimant asserts that she was dismissed by the First and/or Third Respondent on 23 May 2023. The Respondents assert that she resigned on 21 May 2023.1.2 If the Claimant was dismissed, was the Claimant’s pregnancy and/or intention to take maternity leave the reason or principal reason for her dismissal?[2]Wrongful dismissal2.1 Was the Claimant dismissed? The Claimant asserts that she was wrongfully dismissed by the First and/or Third Respondent on 23 May 2023. The Respondents assert that she resigned on 21 May 2023.2.2 If so, what was the Claimant’s notice period?2.3 Was the Claimant paid for that notice period?[3]Pregnancy/Maternity Discrimination – s 18 Equality Act 2010 (“EqA”)3.1 Did the Respondents do the following things?3.1.1 Between 14 February to 23 May 2023, the Respondents failed to carry out any risk assessment at all or any risk assessment that was “suitable” and “sufficient” for the purposes of its obligations under Reg 16 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242).3.1.2 Between 8 March to 23 May 2023, the Respondents instructed the Claimant to carry out physically demanding tasks, including but not limited to: 3.1.2.1 On or around 18 May 2023, the Second Respondent instructed the Claimant to move a heavy fridge/freezer and a large dishwasher unit.3.1.3 Between 8 March to 23 May 2023, the Respondents put pressure on the Claimant to take shorter maternity leave, in that:3.1.3.1 The First Respondent asked her on several occasions how long she would be taking maternity leave;3.1.3.2 On one occasion the Second Respondent told the Claimant “you don’t need to take 9 months do you, Maria never did.”3.1.4 Between 8 March to 23 May 2023, the First Respondent failed to provide the Claimant with adequate breaks by not always permitting the Claimant to take a 30 minute break for every shift that was more than six hours;3.1.5 The First Respondent did not pay the Claimant for the time that she took off work to attend antenatal appointments on 5 April and 11 May 2023;3.1.6 The First and Second Respondents spoke aggressively and abusively towards the Claimant in the following ways:3.1.6.1 Between 8 March to 23 May 2023, the Second Respondent on multiple occasions criticised the Claimant by saying words to the effect of “do you think that’s fucking necessary”;3.1.6.2 Between 8 March to 23 May 2023, the Second Respondent on multiple occasions told the Claimant to “fuck off” if she asked him a question or if she asked him to stop swearing at her;3.1.6.3 On or around 22 April 2023, the Second Respondent shouted at the Claimant, blaming her for equipment failure of the ice cream freezer, acted aggressively, screamed, shoved tables, ripped the plug out of the wall, threw the freezer plug and shoving and hitting the freezer;3.1.6.4 On or around 23 April 2023, the Second Respondent verbally abused the Claimant in front of customers;3.1.6.5 On or around 20 May 2023, the Second Respondent told the Claimant to “fuck off and get out of here”;3.1.6.6 On or around 21 May 2023, the First and/or Second Respondent shouted at the Claimant and told her she was “fucking trouble and a fucking dangerous person”.3.1.7 On or after 23 May 2023, the First and/or Third Respondents appointed the Claimant’s “maternity cover” to replace her;3.1.8 On 23 May 2023, the First and/or Third Respondents dismissed the Claimant;3.1.9 Since 22 June 2023, the First and/or Third Respondents have refused to consider the Claimant’s grievance and/or appeal against her dismissal.3.2 Did the acts and omissions listed in paragraph 2.1 above which the Respondents are found to have committed amount to unfavourable treatment?3.3 If so, did that unfavourable treatment take place in a protected period?3.4 If not, did it implement a decision taken in a protected period?3.5 Was the unfavourable treatment because of the Claimant’s pregnancy?3.6 Was the unfavourable treatment because the Claimant was seeking to exercise the right to ordinary or additional maternity leave or a right to equivalent maternity leave?[4]Sex related harassment – s 26 EqA 20104.1 Did the Respondent do the following?4.1.1 The First and Second Respondents spoke aggressively and abusively towards the Claimant in the following ways:4.1.1.1 Between 8 March to 23 May 2023, the Second Respondent on multiple occasions criticised the Claimant by saying words to the effect of “do you think that’s fucking necessary”;4.1.1.2 Between 8 March to 23 May 2023, the Second Respondent on multiple occasions told the Claimant to “fuck off” if she asked him a question or if she asked him to stop swearing at her;4.1.1.3 On or around 22 April 2023, the Second Respondent shouted at the Claimant, blaming her for equipment failure of the ice cream freezer, acted aggressively, screamed, shoved tables, ripped the plug out of the wall, threw the freezer plug and shoving and hitting the freezer;4.1.1.4 On or around 23 April 2023, the Second Respondent verbally abused the Claimant in front of customers;4.1.1.5 On or around 20 May 2023, the Second Respondent told the Claimant to “fuck off and get out of here”;4.1.1.6 On or around 21 May 2023, the First and/or Second Respondent shouted at the Claimant and told her she was “fucking trouble and a fucking dangerous person”.4.1.2 On 23 May 2023, the First and/or Third Respondents dismissed the Claimant.4.2 If so, was that unwanted conduct?4.3 If so, did this relate to the Claimant’s sex?4.4 If so, did those acts or omissions have the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment?[5]Detriment for family and domestic reasons – s 47C ERA5.1 Did the Respondents do the following?5.1.1 On or around 16 February 2023, when informed that the Claimant had an antenatal appointment on 8 March 2023, the First Respondent required the Claimant to cancel and/or re-arrange her antenatal appointment by saying words to the effect of “that’s opening day, we can’t open without any staff, you’ll need to change the day.”5.1.2 The First Respondent and/or Third Respondent did not pay the Claimant for the time that she took off work to attend antenatal appointments on 5 April and 11 May 2023.5.2 By doing so, did they subject the Claimant to detriments?5.3 If so, did the Respondents subject the Claimant to those detriments because of the Claimant’s pregnancy and/or imminent maternity?[6]Unlawful deduction from wages (salary, overtime) - s 13 ERA6.1 Did the First and/or Third Respondents make unlawful deductions from the Claimant’s wages? The Claimant contends that she is owed salary in that:6.1.1 On or around 24 March 2023, the Claimant worked 2.5 hours of overtime for a private function, which the Respondents failed to pay her for.6.1.2 On or around 2 April and 7 May 2023, the Claimant worked 7.5 hours each day (15 hours in total) on a market stall owned and operated by the Respondents, which the Respondents failed to pay her for.6.1.3 On 5 April and 11 May 2023, the Respondents permitted the Claimant to take the day off to attend antenatal appointments, which the Respondents did not pay her for (7.5 hours each, 15 hours in total).6.1.4 Between 8 March and 23 May 2023, there were several days where the Claimant was only paid for 7 hours, despite rarely working less than 7.5 hours a day.6.2 What, if any, amount is the Claimant owed?[7]Failure to pay holiday pay – Reg 14 Working Time Regulations 1998 (“WTR”) - unlawful deduction from wages - s 13 ERA7.1 Did the Claimant have any accrued but untaken holiday on the termination of her employment? If so, how much?7.2 If so, was she paid in respect of it?7.3 If not, what amount is the Claimant owed?[8]Failure to give rest breaks and compensatory rest – Regs 12 and 24 WTR8.1 Was the Claimant entitled to the rest breaks provided for under Regulation 12 WTR? If so, did the Respondents fail to give the Claimant those rest breaks?8.2 Was the Claimant entitled to compensatory rest breaks provided for under Regulation 24 WTR? If so, did the Respondents fail to give the Claimant those rest breaks?[9]Failure to provide a section 1 ERA statement9.1 The Respondents accept that they did not provide the Claimant with a written statement of terms and conditions of her employment in accordance with s 1 ERA.9.2 What is the appropriate award for the tribunal to make (either two or four weeks’ gross pay)?[10]Remedy 10.1 To the extent that the Claimant succeeds in any of her claims, should the Tribunal order any of the following remedies and, if so, in what amount?10.1.1 A basic award (automatic unfair dismissal only).10.1.2 A compensatory award including an award for injury to feelings (ERA 1996, ss.49 and 123; EqA 2010, s.124).10.1.3 An uplift to the compensatory award in the case of unfair dismissal by reason of an unreasonable failure to follow a relevant code of practice (TULRCA 1992, s.207A).10.1.4 What compensation is it just and equitable for the Employment Tribunal to award to the Claimant?10.1.5 Should interest be awarded? How much?10.1.6 What, if any, declarations should be made? Findings of fact 9. From the information and evidence before the Tribunal it made the following findings of fact. We made our findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgment all the evidence which we heard but only our principal findings of fact, those necessary to enable us to reach conclusions on the issues to be decided. 10. Where it was necessary to resolve conflicting factual accounts, we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based upon their overall consistency and the consistency of accounts given on different occasions when set against any contemporaneous documents. We have not referred to every document we read or were directed or taken to in the findings below, but that does not mean they were not considered.
Findings of fact
[11]The Third Respondent is a small café based in Suffolk. It is owned by Mr and Mrs Turner who are the uncle and aunt of the Claimant. Mr Turner is the brother of the Claimant’s mother, Joanne Kemp, a witness in this hearing. The café opened on 8 March 2023.[12]The Claimant previously worked for Mrs Turner on her Sugar High Cakery market stall off and on over three years where she was paid in cash. This relationship worked well and on 7 February 2023 she was invited to work for Mr and Mrs Turner at the café.[13]No particular legal formalities were followed, and a statement of initial particulars of employment was not provided. It was agreed the Claimant would work as a waitress Wednesday to Sunday at a rate of £10.18 per hour and she would have rest breaks of thirty minutes in excess of the legal entitlement to twenty minutes. The role involved setting up at the start of the day, serving customers, making drinks, and then cleaning at the end of the day.[14]One of the Claimant’s sisters, Kaytlin Kemp, would also help out and work at the café from time to time.[15]The Claimant’s hours of work were not fixed and were usually discussed the day before either in person or on Facebook Messenger. The start time varied but was often 9 or 9:30am. The finish time also varied depending upon workload but could be as late as 5.30pm on occasion. The work became quicker to do as Mr and Mrs Turner became more experienced.[16]The Claimant began her employment on 8 March 2023, following some initial preparations with family and community members. After accepting the job offer, the Claimant informed Mrs Turner of her pregnancy on 14 February 2023. The Claimant and Mrs Turner maintained a close and friendly relationship, sharing personal matters and regular, informal communication.[17]We heard evidence that when the Claimant first started work she performed very well and she excelled at organising things. Likewise, the Claimant has described working there as lovely for the most part. First ante-natal appointment[18]On the morning of 16 February 2023, after informing Mrs Turner of her pregnancy two days prior, the Claimant asked Mrs Turner if her employment could continue. Mrs Turner responded “Yes of course. Obviously we’ll need to look into the legal side of everything & how much it will cost xxx.” Although the mention of cost raised concerns to us, the job offer stood and ultimately only routine ante-natal appointment leave created a minor extra expense.[19]The Claimant alleges that later that day on 16 February 2023 Mrs Turner required her to re-arrange her ante-natal appointment scheduled for 8 March 2023 as Mrs Turner told her that was the opening day and “we can’t open without any staff, you’ll need to change the day.” Mrs Turner denies this. We do not find that this happened.[20]Firstly, the Claimant’s account is inconsistent as she says it occurred at her mother’s house and her mother was there but didn’t know about the pregnancy. The Claimant’s mother, Joanne Kemp says she wasn’t there at the time, but she knew about the pregnancy then. The Claimant’s sister Hayley Clarke says she was there and heard it but doesn’t know what time of day it happened, nor if her mother was there.[21]The greater difficulty for the Tribunal was the fact that the Claimant messaged Mrs Turner at 6:49pm that day telling her that she has the appointment and she would change it. The message reads as if it was the first time she was telling Mrs Turner. In her evidence the Claimant told us that is how she communicates and she would not write the same way as other people. We know of the Claimant’s dyslexia, and we have taken that into account however the message still reads as if it is the first time she was telling Mrs Turner.[22]Mr Skipper in his questioning of Mrs Turner before us sought to argue that this was sent as a reminder, and he showed us various messages where Mrs Turner had forgotten things the Claimant had told her, such as appointments. However, the difficulty with that is that those were appointments coming up in the following few days, whereas this was allegedly a reminder of something said earlier that same day about an appointment the next month. It did not make sense to us that the Claimant would remind Mrs Turner about something in the future she had allegedly just told her about hours earlier.[23]There was no reply to the message from Mrs Turner, nor the following day when the Claimant told her that she had changed the appointment. There was nothing in the messages which supported the argument that she had been asked to change the appointment.[24]The Claimant refused to reschedule an eyelash appointment on 7 March 2023 because the next slot was in three weeks. We have found it highly improbable the Claimant would agree to change a significant first ante-natal appointment but refuse to change a less important one for eyelashes. We therefore conclude the rescheduling of that ante-natal appointment was of her own choice. Risk Assessment[25]The Claimant alleges no pregnancy risk assessment was conducted, but we disagree. During an informal discussion at Mrs Turner's house in February 2023 where Helen Harridge (Mrs Turner’s friend) was present, the three of them discussed the pregnancy, and risks were identified, including avoiding heavy lifting and taking breaks. Although this meeting was unscheduled, unwritten, and not held at the café, relevant risks were nonetheless addressed.[26]Risks were kept under review, for example Mrs Turner provided the Claimant a stool to sit on at the till when it was discovered that she was standing for long periods. The Respondent describes this as a verbal dynamic risk assessment – we find it was ad hoc but nonetheless it achieved the same outcomes.[27]On or around 11 and 12 April 2023 the Claimant was diagnosed as having a low Pregnancy Associated Plasma Protein-A (PAPP-A) which means the protein, made by the placenta, is below the expected level. This created an element of risk of low birth weight, premature birth, and pre-eclampsia. The treatment includes increased monitoring with regular medical appointments. The Claimant made Mrs Turner aware and has complained that a risk assessment was not then performed or updated, however we have found (as above) that the identification of risk was something kept under review. Breaks[28]The Claimant alleges that the Respondents failed to provide her with adequate breaks by not always permitting her to take a 30 minute break for every shift that was more than six hours. In her oral evidence the Claimant clarified that she had some breaks, but she did not always get them. We observe that the legal requirement is for uninterrupted breaks of 20 minutes not 30 minutes for those working six hours or more, however it was agreed she would have 30 minutes.[29]The Respondents argue that the Claimant had regular breaks including for smoking or vaping. We do not need to concern ourselves with what the Claimant did on her breaks, our focus is whether she got them.[30]Evidence was provided by Mrs Harridge who attended infrequently and observed the Claimant having breaks. Ms McWilliams, a fellow business owner on site, gave evidence that she observed the Claimant having breaks. Mr Martin, the owner of the site and the Respondents’ landlord, also gave evidence that he observed the Claimant having lunch and breaks. None of this evidence was challenged by the Claimant, however she accepted she did have some breaks but not regularly. We placed limited weight on a witness statement from Julie Gowans who previously worked in the kitchen, and who also observed the Claimant having breaks. Ms Gowans did not attend to give evidence so could not be questioned; however her evidence was consistent with the other statements for the Respondents, so we accepted it.[31]We also noted a lack of any contemporaneous complaint from the Claimant about lack of breaks during her employment.[32]This was a small but busy café with four members of staff and breaks would have been difficult to schedule in advance. However given the lack of contemporaneous complaint from the Claimant, combined with the consistent evidence of the Respondent, we were not satisfied the Claimant did not have regular breaks. Deductions – 24 March 2023[33]On 24 March 2023 there was a private function for a wake. The Claimant worked 2.5 hours overtime, and the Respondent was paid in cash by their client. The Respondents say they paid the Claimant £30 in cash which was in excess of the hours worked on her £10.18 hourly rate. The Claimant denies that she was paid.[34]We note that for the Nook Café the Claimant was paid monthly by BACS therefore we found it strange that she would be paid cash for her overtime. We noted that the Claimant did not complain at the time she had not been paid. It is possible that the Claimant was paid in cash for this function, however we are not satisfied on the balance of probabilities that the Claimant was paid given it was not made by the usual means of BACS, therefore there was a lack of supporting evidence it was paid. Deductions – 2 April 2023[35]On 2 April 2023, the Claimant worked 7.5 hours at Sugar High Cakery, owned by Mrs Turner, the same sole trader as The Nook Café. Although the Claimant stated she was unpaid, the Respondents claim she was paid in cash, which was her usual method for market stall work. As no complaint was made at the time, we conclude that the Claimant was paid for this date. Ante-natal appointment – 5 April 2023[36]On 5 April 2023 the Claimant had an ante-natal appointment in the morning, she was then sent for a scan which related to the pregnancy, after mid day she attempted to drive back to work but got a puncture. The Respondents did not pay the Claimant for the day as they treated it as sickness or unpaid leave. The Respondents accept this was an error, and half a day should have been paid and they say they have attempted to make payment but it has not been accepted, and the Claimant denies this. The Respondents say that it was an honest mistake not to have paid the Claimant for the appointment in the morning. Ice-cream freezer incident and swearing[37]On 22 April 2023 the Respondent’s ice cream freezer broke down. Mr Turner was annoyed about this as it could have caused the business a significant loss, although his sister and the Claimant’s mother, Joanne Kemp, later stored the ice-cream in her freezer. The Claimant alleges that Mr Turner shouted at her and blamed her for the failure of the ice cream freezer, that he was aggressive and screamed at her, shoved tables, ripped the plug out of wall and threw the freezer plug and shoved and hit the freezer. It was not explained to us what he said or why he allegedly blamed the Claimant, and despite messaging Mrs Turner frequently, she made no express mention of this to her at the time.[38]Whereas we find that Mr Turner would likely have expressed considerable annoyance and frustration about this, given the business was new and operated on a shoestring budget at first, we were not persuaded that he lashed out in the way described at the Claimant, nor that he blamed her. The evidence before us does not support such a conclusion, not least because the Claimant allowed Mr Turner to attend her gender reveal party weeks later, despite telling us she was scared of him.[39]We also accepted the Respondents’ evidence that around this time they had some concerns about the Claimant’s work as she did not seem to be enjoying the role and could be snappy with people. This was consistent with the evidence of the Respondents’ other witnesses, Mr Martin, Ms Harridge and Ms McWilliams who gave evidence that the Claimant appeared unhappy, and whereas they have relationships with the Respondents, we accepted the evidence of these three witnesses who were honest, credible and consistent, and much of their evidence was not challenged. We also note that this period of time coincided with the Claimant’s recent PAPP-A diagnosis and also difficulties in her relationship with her partner.[40]The Clamant also alleges that on 23 April 2023 Mr Turner verbally abused her in front of customers. That evening the Claimant sent Mrs Turner a message and said “Is there a problem with me working with you lot!! Just feel to feel like there is!” Mrs Turner asked what she meant with two kisses, to which the Claimant replied “Well the way Daryl is with me!! And today I just feel like I’m causing problems working with you.” Mrs Turner replied and said “I don’t understand what you mean? Why do you feel like you’re causing problems?” The Claimant did not reply to that message.[41]The Claimant’s evidence was that Mr Turner would tell her to fuck off and say “do you think that’s fucking necessary” to her. Mr Turner denies that he did so and we were not provided with evidence of the wider context of the conversations in which these comments were allegedly made. Mr Turner says that he had cause to raise concerns with the Claimant about her work and she did not like being told what to do.[42]We note that the Claimant would send messages using expletives to Mrs Turner, including on 20 May 2023 where she said that it was alright for Mr Turner to fuck off, and that he had spoken to her like a cunt.[43]We noted that within the contemporaneous messages the Claimant did not say at any time she had been told to fuck off, notwithstanding her own use of that language towards Mr Turner. The evidence does not support a finding that Mr Turner told her on 23 April 2023 to fuck off, nor that he asked her if that was fucking necessary, nor that he verbally abused her in front of customers. The Claimant has been candid to us that she did swear at work but not in front of customers and only if she was sworn at first, however in the messages with Mrs Turner it was only the Claimant who used words such as fuck and cunt. Maternity leave[44]Whereas the Claimant alleges that pressure was applied to her not to take full statutory maternity leave, and that Mr Turner said words to the effect that “you don’t need to take 9 months do you, Maria never did” we are not satisfied that this was the case.[45]Firstly, on 25 April 2023 the Claimant volunteered to provide the dates of her maternity to the Respondents, to which Mrs Turner said this was not necessary yet and she should await the outcome of her scans. Secondly, it was the unchallenged evidence of Mr Turner that Mrs Turner had taken her full entitlement with each of her four sons, therefore he would not have said this to the Claimant. Thirdly, the Claimant did not complain about these matters at the material time. We are therefore not persuaded that these comments were made or that any pressure was applied.[46]On 26 April 2023 the Claimant did not attend work as her partner had been in a car accident. The Claimant did not ask to be off, rather she told Mrs Turner she would not be in. On 27 and 28 April 2023 the Claimant was given annual leave by Mrs Turner, requested without notice following relationship issues with her partner, and this was granted even though it would cause significant disruption to the business particularly on 28 April 2023. Mr Skipper tells us around this time that the Respondents’ attitude to the Claimant changed and he says it was because her PAPP-A diagnosis would make it more expensive for them due to increased appointments, however we observe that it coincided with the Claimant’s relationship issues, non-attendance on 26 April, and leave without notice on 27 and 28 April which had more direct impact upon the business.[47]The Claimant says on 26 April 2023 someone known as BG was interviewed to cover her maternity leave whereas the Respondents deny any knowledge of this person and maintain that someone named OL was interviewed about becoming a kitchen assistant and we have accepted that explanation. It was not explained to us why it would have been a detriment to the Claimant for the Respondent to have made arrangements for someone to cover her absence in the future. Deductions – 7 May 2023[48]The Claimant worked 7.5 hours 7 May 2023 on Mrs Turner’s market stall, she says she was not paid, Mrs Turner says she was paid in cash. We noted the Claimant was typically paid in cash for her stall work, and she did not challenge this at the time. We therefore find she was paid. Ante-natal appointments – May 2023[49]On 3 May 2023 the Claimant attended an ante-natal midwife appointment which was paid. Given this was paid it seemed unlikely that the Respondents had an issue with these appointments.[50]On 11 May 2023 the Claimant did not attend work, she went to hospital due to stomach pains. The Clamant did not tell Mrs Turner explicitly it was about the baby, but she was at hospital all day, she had a scan for the baby and reported later she and the baby were fine but she was dehydrated. We find this appointment was an urgent unscheduled ante-natal appointment as it involved being told to go to hospital and to have a scan on her baby. The Employment Rights Act 1996 and the statutory guidance do not require such appointments to be scheduled. The Respondents did not pay the Claimant as they assumed it was a sick day. Fridge freezer and dishwasher incident[51]On or around 18 May 2023 a fridge freezer and dishwasher were delivered to the Respondents which was left outside in the rain very close to a lawnmower shelter. We find that they were no more than two feet away from the shelter. Mrs Turner sent the Claimant outside to pass Mr Turner a message about an inspection. What happened next is disputed but we find that Mr Turner was attempting to move it and he asked the Claimant “Would you mind helping me so they don’t get wet” and she complied by helping to shuffle them a short distance. We do not find that the Claimant was instructed nor forced to do so, it was a simple but perhaps thoughtless request given her pregnancy, she willingly complied, and there was no more to the incident than that. Later that day Ms Harridge, Ms McWilliam and Mr Martin were present, and both Mr Martin and Mr Turner moved the items into the kitchen between them without the Claimant. End of employment[52]The Claimant attended work on 19 May 2023 and Mr Turner had some form of disagreement with Mrs Turner about how she had made a hot chocolate. Mr Turner said that he would re-make it and Mrs Turner went outside. What happened next is disputed. The Claimant maintains she interjected and asked “come on both of you, do you need to keep arguing all day” to which she says Mr Turner told her to fuck off and get out of here, and she left as it was near the end of the shift and she had not had a break all day. The Claimant accepts she said “I cannot do this anymore” as she left, and she says she arrived at her brother’s house in distress. The Claimant denies that she resigned.[53]Mr Turner maintains this is not true and that he had a minor disagreement with Mrs Turner over the hot chocolate, the Claimant called him a cunt with customers nearby, he told her to zip it, and she took off her apron, threw it down and walked out saying “I cannot do this anymore.” Mrs Turner supports hearing the Claimant say that.[54]We are not satisfied that either party has given us the full version of events as both versions seem implausible that this erupted over a minor disagreement about making a hot chocolate, nor that the Claimant allegedly spoke as politely and calmly as she would have us believe given her predilection for the use of profanities. We are satisfied that Mr Turner’s account is closer to the truth and that the Claimant did remonstrate with him and she accused him of being a cunt, he told her off, perhaps more forcefully than merely the use of the words “zip it” as he would have us believe, and the Claimant then walked out saying “I cannot do this anymore.”[55]The Claimant has described her uncle, Mr Turner, as aggressive and that she and others were scared of him. We are not satisfied that this is the case for a number of reasons. Firstly both the Claimant and her sister Kaitlin went to work for him. Secondly the contemporaneous messages do not record any mention of being scared of Mr Turner nor that he is aggressive. Thirdly, and most critically, the Claimant held a gender reveal party on 20 May 2023 for which was she was given annual leave, and she allowed Mr and Mrs Turner to attend. This was pre-arranged but given her alleged fear of Mr Turner, it seemed strange that the Claimant would still allow him to attend.[56]At 6:49pm that day the Claimant messaged Mrs Turner and said she guessed she was expected to come to work the next day. Mrs Turner replied she did not know what to think after she walked out mid shift and she asked the Claimant to meet her the next day with Mr Turner. The Claimant replied: “TBH Maria none of you none half the shit going on this is not the first time Daryl has spoken to me like a Cunt… If I was an employee like Julie, he wouldn’t speak to them like it so I’m not sure why he thinks it’s okay to do it to me!! But it’s okay for him to fuck off. If it’s a problem me working for you then I’ll look for something else.”[57]Mrs Turner replied that she was not getting into a row and she asked the Claimant to come in at 9:30am to talk. The Claimant replied she was not getting into a row but was getting her point across. The Claimant sent and unsent a message the following morning, and we find the Claimant said “If it turns into a row I’m walking out.”[58]All three met on 21 May 2023, Mrs Turner asked the Claimant what had happened to make her walk out on 19 May 2023, to which the Claimant replied words to the effect that she was sick of Mr Turner speaking to her like shit, and when Mrs Turner asked the Claimant what she meant the Claimant replied he always does it. The Claimant was asked to provide an example of what Mr Turner had done to which the Claimant raised her voice and began to cry and walked out for a second time again saying “I can’t do this anymore” and she left the premises.[59]The Claimant tells us that Mrs Turner accused her of being “fucking trouble” and “a fucking dangerous person” and that she said to Mr Turner she had told him they should never have employed her. We do not find this credible. It was not put explicitly to both Respondents during their testimony, and it contradicts the messages between the Claimant and Mrs Turner, who was consistently supportive and kind to the Claimant. Given Mrs Turner’s three years of employing the Claimant, such comments seem highly unlikely.[60]On 22 May 2023, the Claimant’s GP provided her a sick note for two weeks due to her mental health. The Claimant sent it to the Respondents who questioned it since they said she had resigned. The Claimant insisted she had not resigned, but Mrs Turner stated that her repeated statements of “I cannot do this any more” were taken as a resignation. A formal letter on 24 May 2023 confirmed this and included unresolved performance and conduct issues.[61]Mrs Turner then emailed her accountant who did her payroll and told her that the Claimant’s final day was 20 May 2023 which was annual leave, that she had been on leave on 27 and 28 April, her hours varied between 6 and 7 hours per day so she suggested paying her holiday at 6.5 hours as an average, and she asked the accountant to calculate if any other holidays were due and further “we need to make sure all monies owed are paid.”[62]The Claimant was paid £887.28 after statutory deductions in her final pay and this included 73 hours of her standard working hours, and 10.71 hours of annual leave. These were paid at the hourly rate of £10.18 per hour.[63]On 22 June 2022 the Claimant issued a grievance, which save for her subject access request, was not dealt with as the Claimant had engaged ACAS Early Conciliation. Deductions and holiday pay[64]The Claimant’s hours were recorded in a diary kept in or near the kitchen. The hours were then passed to the Respondents’ accountant to do the payroll. The Respondents say the Claimant knew about the diary and had access to it, the Claimant denies that she did. This is not a factual dispute we need to resolve as we have already recorded that at no point did the Claimant ever query or challenge her pay during the course of her employment.[65]The Claimant has produced a schedule of the unauthorised deductions she says that were made to her pay, and these calculations are used for the basis of her accrued annual leave claim. The schedule includes all of the deductions referred to above in this judgment, in addition there are a number of other occasions where the Claimant says she has been underpaid. These comprise 16 additional days and the deductions range from a quarter of an hour to two and a quarter hours in one case.[66]We have found the calculations to be inaccurate as they are mostly based on a working day of 7.5 hours whereas it was clear from the messages in the bundle the Claimant did not always work that much as her start and end times varied daily according to business need predominantly, and to a lesser extent due to personal choice of the Claimant. Our finding is that the Claimant generally worked between six and seven hours per day on average and this is what she was paid for.[67]With respect to annual leave, we find that the Claimant was paid for annual leave on 27 and 28 April and 20 May 2023 and was paid for 1.5 days accrued annual leave upon termination, bringing the total to 4.5 days between the start of her employment on 8 March 2023 and 21 May 2023 when her employment ended. There were some days where the Claimant did not work at all, for example on 26 April 2023 due to issues with her partner, and other times where the Claimant wished to start later. It appeared to the Tribunal that the calculation was based upon the incorrect premise that the Claimant worked 7.5 hours every day whereas it ranged between 6 and 7 hours. Submissions[68]The parties delivered oral closing submissions on 4 December 2025 and we received 8 pages of written closing submissions from Mr Skipper for the Claimant. The submissions of the parties were thorough, we found them to be incredibly helpful, and we have taken them all into account. We do not repeat the submissions verbatim here save to highlight the key arguments and we record that both parties agreed that a section 1 statement had not been provided.[69]Mr Skipper argues that the matters complained of occurred and that the Claimant’s argument is that the more complicated and high risk her pregnancy became, the more expensive her employment became to the Respondents (for time off for medical appointments), and in turn her treatment deteriorated, culminating in her dismissal. Mr Skipper refers us to a comment made by Mrs Turner at the start of the employment where the Claimant told her she was pregnant and asked if she still wished to employ her, to which Mrs Turner replied yes of course but she would need to look into the legal side and how much it will cost. Mr Skipper places heavy weight on that comment and invites to find that the cost of employing someone who was pregnant was the reason for the treatment.[70]Mr Skipper addressed us on whether the appointment on 3 May 2023 was an antenatal appointment and he says that there is no requirement in the statute that the appointment must be routine or long-planned: the test is that it is antenatal care on the advice of a doctor or midwife, and that Government and specialist guidance confirms that pregnant employees are entitled to reasonable paid time off for their ante-natal appointments, scans, blood tests and other appointments recommended by a registered medical practitioner, regardless of hours or length of service. Mr Skipper says that an emergency hospital attendance for scans and blood tests, arranged on a midwife’s advice because of pregnancy complications (low PAPP-A and reduced movements), is still an ante-natal appointment and still attracts paid time off. Mr Skipper also tells us that Mrs Turner’s other business, Sugar High Cakery, has the same legal identity, and the fact that Mrs Turner traded both as The Nook Café and as a cake/market stall business does not create two separate employers - the question is who, in reality, engaged and directed the Claimant’s work.[71]For the Respondents Mr Rahman disputes whether the acts happened at all, but repeatedly makes the point that even the Claimant could not be sure that the reason things happened was because of pregnancy or maternity. Mr Rahman says that the Claimant was witnessed by many people taking breaks and there had been an honest error in not paying the Claimant for one ante-natal appointment on 5 April, there had been an offer to pay it during this litigation which had been refused. Mr Rahman says that there is no reference to harassment in the Claimant’s witness statement; Mrs Turner was not questioned on it; and by the Claimant’s own admission she would swear if she was sworn at – we are referred to her use of the word “cunt” towards Mr Turner. Mr Rahman says that the Claimant’s description of Mr Turner is at odds with her inviting him to her gender reveal party. Mr Rahman says that the work for Sugar High Cakery was an entirely separate business with a separate legal identity, and he maintains that the holiday pay was calculated correctly. Mr Rahman also maintains that the Claimant was not dismissed, rather she resigned. Law Pregnancy and Maternity Discrimination[72]Section 18 Equality Act 2010 provides that an employer (A) discriminates against a woman if, in the ‘protected period’ in relation to a pregnancy of hers, A treats her unfavourably: (i) because of the pregnancy — S.18(2)(a), or (ii) because of illness suffered by her as a result of it — S.18(2)(b).[73]An employer also discriminates against a woman if it treats her unfavourably:(i) because she is on compulsory maternity leave — S.18(3), or(ii) because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave — S.18(4).[74]The ‘protected period’, in relation to a woman’s pregnancy, starts when the pregnancy begins and, if she has the right to ordinary and additional maternity leave, ends either at the end of additional maternity leave or when she returns to work, if earlier.[75]In order to establish a prima facie case of pregnancy and maternity discrimination and shift the burden to the employer to provide a nondiscriminatory explanation, a claimant will need to prove, on the balance of probabilities, that she has suffered unfavourable treatment and that there are facts from which it can be inferred that the reason for such treatment was one of the four reasons prohibited in section 18 of the Act. An inference might be drawn where there is a close temporal link between the unfavourable treatment and the Claimant informing the employer of her pregnancy. Whereas pregnancy and maternity discrimination claims do not require a comparator, the treatment afforded to employees or job applicants who are not pregnant or on maternity leave may shed light on the reasons for the Claimant’s treatment.[76]Unfavourable treatment has been held to have the same meaning as for disadvantage and detriment. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. A detriment simply means to be put to a disadvantage.[77]As was held in 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: '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.' [17][78]We must ask ourselves the question as to what was the reason for the treatment complained of - Johal v Commission for Equality and Human Rights UKEAT/0541/09.[79]In in Interserve FM Ltd v Tuleikyte [2017] IRLR 615 the court held: 'The mere fact that a woman happens to be on maternity leave when unfavourable treatment occurs is not enough to establish direct discrimination'. [20][80]We reminded ourselves that the task in this case was to ask ourselves, was whether the Claimant’s pregnancy was an 'effective cause' of the treatment complained of during her pregnancy - O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1996] IRLR 372, [1997] ICR 33, EAT). The reason for decisions or treatment can often be for more than one reason. It is unnecessary for the pregnancy to be the only or the main reason for the unfavourable treatment, it simply has to be a material influence on the conscious or the sub-conscious decision making of the respondent.[81]A person complaining of discrimination may face great difficulties when it comes to proof. It may be appropriate to take into account evidence of hostility before and after the event (or act complained of) where it is logically probative of a relevant fact.[82]In order for the complaint to succeed, the alleged discriminator must have knowledge of the pregnancy.[83]Treatment cannot constitute direct sex discrimination under s.13 of the Act if it constitutes s.18 pregnancy and maternity discrimination, by virtue of s.18(7). Time off for ante-natal care[84]Section 55 Employment Rights Act 1996 provides:(1) An employee who— (a) is pregnant, and (b) has, on the advice of a registered medical practitioner, registered midwife or registered nurse, made an appointment to attend at any place for the purpose of receiving ante-natal care, is entitled to be permitted by her employer to take time off during the employee’s working hours in order to enable her to keep the appointment.(2) An employee is not entitled to take time off under this section to keep an appointment unless, if her employer requests her to do so, she produces for his inspection — (a) a certificate from a registered medical practitioner, registered midwife or registered nurse stating that the employee is pregnant, and (b) an appointment card or some other document showing that the appointment has been made.(3) Subsection (2) does not apply where the employee’s appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with subsection (1).(4) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with her contract of employment, the employee is required to be at work. …[85]ACAS has provided non-binding guidance on time off for ante-natal appointments and records that ante-natal appointments includes medical appointments relate to a pregnancy; classes for pregnancy-related health, fitness or relaxation; and sessions that support the person’s mental health and wellbeing. Further guidance from ACAS records that the ante-natal appointments need to be on the advice of a doctor, nurse or midwife and can include scans, pregnancy health checks, relaxation classes, for example pregnancy yoga and parentcraft classes.[86]The non-binding guidance within the statutory Code of Practice issued by the Equality and Human Rights Commission (at paragraph 17.26) provides that “Pregnant employees are entitled to paid time off for antenatal care. Antenatal care can include medical examinations, relaxation and parenting classes.”[87]There is no reference within either the ACAS guidance or the EHRC Employment Code, as to whether urgent or emergency appointments are included or excluded. Risk assessments[88]Regulations 3 and 16 of The Management of Health and Safety at Work Regulations 1999 (“the Regulations”) sets out the legal requirement to undertake a risk assessment of a new or expectant mother and this applies where the work could involve risk to the mother or the baby from the working conditions (and other matters specified). The EAT in O’Neill v Buckinghamshire County Council [2010] IRLR 384 set out that the obligation to carry out a risk assessment of a pregnant worker arose only where;-(a) the employee notified the employer in writing that she was pregnant;(b) the work was of a kind that could involve a risk of harm or danger to the health and safety of a new or expectant mother or her baby, and(c) the risk arose from any processes or working conditions, or physical, biological or chemical agents, including those specified in Annexes I and II of the Pregnant Workers Directive.[89]Whereas these provisions are not of themselves enforceable directly before the Employment Tribunal, a failure to conduct a risk assessment once the preconditions are met, could amount to unfavourable treatment under s. 18 Equality Act 2010. Automatic Unfair Dismissal[90]It is automatically unfair to dismiss a woman because she is pregnant or because of any reason linked to her pregnancy, childbirth or maternity – s.[99]Employment Rights Act 1996. An employer will need to show that the dismissal was for a reason unconnected to these matters. Harassment91. Sex is a protected characteristic under s. 11 Equality Act 2010.92. The Tribunal must address the issue of whether the conduct complained of was unwanted. Unwanted conduct means the same as unwelcome or uninvited, and specifically unwanted by the Claimant – Thomas Sanderson Blinds Ltd v English UKEAT/0316/10. A single incident may amount to unwanted conduct if it is sufficiently serious – Bracebridge Engineering Ltd v Darby [1990] IRLR 3.93. The conduct complained of must be related to the protected characteristic. In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495 it was held: “…Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.” [25]94. As regards whether the unwanted conduct is related to the protected characteristic (in this case sex) it is appropriate for the tribunal to take into account the wider context and this is clear from Warby v Wunda Group Plc [2012] UKEAT 0434/11. The EHRC Code at paragraph 7.9 makes it clear that unwanted conduct related to a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. The recent case of Carozzi v University of Hertfordshire and another [2024] EAT 169 provides that: “The requirement that the conduct be related to a protected characteristic is different to the requirement in a claim of direct discrimination that the treatment is because of a protected characteristic. The term “related to” is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic.” [15] And “There is no requirement for a mental element equivalent to that in a claim of direct discrimination for conduct to be related to a protected characteristic. Treatment may be related to a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic, and there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser.” [24]95. It is not necessary for harassment to be deliberate for it to be unlawful. If the unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating a claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them, the definition of harassment is made out. There is then no need to consider the effect of the unwanted conduct.96. Where the conduct complained of was not deliberate, it may still constitute unlawful harassment. In such a case it will be necessary to decide whether the conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In doing so it is necessary to consider the factors set out in section 26(4), which are the perception of the claimant; the other circumstances of the case; and whether it was reasonable for the conduct to have that affect.97. In Weeks v Newham College of Further Education UKEAT/0630/11 it was held that a tribunal must be sensitive to all the circumstances; the fact that unwanted conduct was not itself directed at the Claimant is a relevant consideration but it does not prevent that conduct being harassment; the timing of an objection has an evidential importance, however caution is urged before placing too much weight upon timing as it may be very difficult for the victim personally, socially and, in particular, in some circumstances, culturally, to make any immediate complaint about it. The lack of an immediate complaint cannot prevent a complaint being justified, but it may be a factor the tribunal is entitled to consider. The fact that terms that are plainly related to a protected characteristic but which are used only once in a long period of time would not prevent (in an appropriate case, and with appropriate surrounding circumstances), such comments being found to have created the environment relied upon.98. In Weeks it was further held that in determining whether the unwanted conduct has created the proscribed effect, the tribunal must bear in mind that an environment is a state of affairs, but that could include one off incidents with effects of a longer duration. 99. As to whether the conduct had the requisite effect, there are both subjective considerations – the Claimant’s perception of the impact on them – but also objective considerations including whether it was reasonable for it to have the effect on the particular claimant, the purpose of the remark, and all the surrounding context - Richmond Pharmacology Ltd v Dhaliwal [2009] ICR 724. Conduct which is trivial or transitory is unlikely to be sufficient. In that case it was held: “A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard … whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt …” [15]. and “…Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…” [22].[100]In HM Land Registry v Grant [2011] EWCA Civ 769 it was held: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” [47] Holiday Pay 101. Under regulation 13 Working Time Regulations 1998, a worker is entitled to 4 weeks’ annual leave in each leave year; regulation 13A provides for an additional 1.6 weeks.[102]Regulation 14(1) provides that where a worker’s employment terminates and, at that date, the worker has accrued annual leave which they have not taken, “the worker is entitled to a payment in lieu of that entitlement.”[103]The payment must be calculated in accordance with the formula in regulation 14(3), which requires the employer to determine the proportion of the leave year completed and the worker’s accrued entitlement at the termination date.[104]The Employment Tribunal has jurisdiction to determine claims for unpaid holiday pay as an unlawful deduction from wages under Part II of the Employment Rights Act 1996, or directly as a claim for a payment under the WTR 1998. Rest breaks[105]Regulation 12 Working Time Regulations 1998 provides: “12.—(1) Where an adult worker’s daily working time is more than six hours, he is entitled to a rest break. (2) The details of the rest break to which an adult worker is entitled under paragraph (1), including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement. (3) Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one. “[106]Regulation 12 does not apply where the circumstances of Regulation 21 are met, however none of these apply in this case. Further Regulation 24 provides for compensatory rest breaks or alternative protection in very limited circumstances including where the nature of the work makes compliance with the requirement to provide rest breaks impossible.[107]In Grange v Abellio London Ltd [2017] ICR 287, EAT, it was held that an employer’s failure to make provision for rest breaks can amount to a refusal even in the absence of an express request by the worker. Wrongful dismissal[108]Article 3 of the Extension of Jurisdiction (England & Wales) Order 1994 sets out the Employment Tribunal’s jurisdiction to hear contract claims. The tribunal must consider whether the conduct of the employee was, on the balance of probabilities, so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summary terminate the contract - Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1WLR 698, CA. Leave for family and domestic reasons[109]Section 47C Employment Rights Act 1996 provides: “(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason. (2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to— (a) pregnancy, childbirth or maternity…”[110]The term “detriment” should be given its broad ordinary meaning, and a detriment will exist if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to their detriment – Ministry of Defence v Jeremiah [1980] QB 87. Unauthorised deductions from wages[111]Section 13 Employment Rights Act 1996 provides: “Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction. … (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”[112]Section 27 of that Act provides that wages include any sums payable to the worker in connection with their employment including any fee, bonus, commission, holiday pay or other emolument referable to their employment whether payable under their contract or otherwise. Statement of particulars[113]Section1 Employment Rights Act imposes a duty on an employer to provide an employee with a written statement of employment particulars. The statement must be given no later than the commencement of employment and must include the principal terms of the employment such as the names of the parties, the date employment began, the job title or description, the rate and frequency of pay, hours of work, holiday entitlement, notice periods, place of work, and any relevant pension or disciplinary arrangements.[114]Any change to those particulars must be confirmed to the employee in writing within one month. A failure to provide the statement does not in itself constitute a free standing cause of action.[115]Where a claimant succeeds in a substantive claim, such as discrimination under the Equality Act 2010, and it is established that the respondent was in breach of the duty under section 1 of the Employment Rights Act 1996, section 38 of the Employment Act 2002 empowers the tribunal to make an additional award.[116]The tribunal must, unless it considers it just and equitable not to do so, make an additional award of either two or four weeks’ pay. In determining whether the higher or lower amount is appropriate, the tribunal may take into account factors such as the length and seriousness of the default, the extent to which the absence of proper particulars may have contributed to uncertainty or misunderstanding in the employment relationship, and any mitigating steps taken by the employer. Conclusion and decision Section 1 Employment Rights Act statement[117]We start by upholding the claim for the section 1 statement as this point was conceded by the Respondents. Automatic unfair dismissal and wrongful dismissal[118]We found that the Claimant’s employment ended on 21 May 2023 when she resigned by conduct, namely walking out of work before her shift ended a second time in three days, stating the words “I cannot do this anymore.” This was not a dismissal, it was a resignation, and the Respondents were entitled to treat it as such.[119]The claims for automatic unfair dismissal and wrongful dismissal therefore fail and are dismissed. Pregnancy and maternity discrimination[120]We must first identify if there was unfavourable treatment, and then ask the reason why, and whether it was because of the Claimant’s pregnancy or maternity leave.[121]We find that the Respondents did not fail to undertake a suitable and sufficient risk assessment as required under the Management of Health and Safety at Work Regulations 1999. A verbal risk assessment was performed; it did not need to be in writing; it did not need to be conducted in the café; and it was kept under review.[122]We do not find that the Claimant was instructed to carry out physically demanding tasks including moving a fridge freezer and a large dishwasher unit. We find the Claimant was asked if she would assist shuffling it for less than two feet and she complied. We did not find that this was unfavourable treatment, but in any event the reason for the treatment was not because the Claimant was pregnant or going on maternity leave, the reason was because it was raining and Mr Turner wanted to move the items a very short distance. It was perhaps a thoughtless request from Mr Turner, but the Claimant was not forced to comply, she willingly did so.[123]We were not persuaded that the Respondent put any pressure on the Claimant to take shorter maternity leave, the factual premise of the allegation has not been made out at all.[124]In addition, we have found that the Claimant was provided with uninterrupted breaks of at least 20 minutes and she was not prevented from taking them.[125]The Respondent failed to pay the Claimant for the ante-natal appointments on 5 April and 11 May. This was unfavourable treatment. The Claimant was paid for 3 May. The reason for not paying for 5 April was an innocent error. The reason for not paying on 11 May was due to an incorrect belief that this was sickness and not ante-natal. Both acts related to pregnancy, but they were not because of pregnancy or maternity.[126]We do not find that the First and Second Respondents ever spoke aggressively and abusively towards the Claimant in the ways described in the list of issues, therefore the factual premise of those allegations have not been made out.[127]The allegation about appointing someone as the Claimant’s maternity cover is entirely misconceived. No-one was appointed during her employment, and in any event the Respondents were entitled to arrange future maternity cover in order to plan their business.[128]We have already found that the Respondent did not dismiss the Claimant, rather the employment ended by way of resignation in the form of her conduct on 19 and 21 May 2023.[129]As regards the failure or refusal to consider the Claimant’s grievance and appeal against dismissal, we have already found that the Claimant was not dismissed.[130]As regards not dealing with the Claimant’s grievance we do not find that this was unfavourable treatment. This is simply because the Claimant was a former employee and there was no legal entitlement nor reasonable expectation that grievances from a former member of staff would be responded to. In addition, the Claimant had already engaged the ACAS early conciliation process, therefore the Respondents sought to address matters through that process. Even if this was unfavourable treatment, the reason for the treatment as we have recorded, was not because the Claimant was pregnant, it was because she was a former employee.[131]The claim for pregnancy discrimination therefore fails and is dismissed in full. Harassment related to sex[132]With respect to harassment related to sex, we noted that this cause of action was not put to any of the Respondents during their oral evidence. The legal basis of a claim for harassment related to sex involves there being unwanted conduct related to sex, with the purpose of the effect of creating the proscribed environment.[133]In this case, the factual premise of each of the allegations of harassment were not made out in any event, we were not persuaded that Mr Turner had ever said “do you think that’s fucking necessary”; nor did he blame the Claimant and shout at her for an equipment failure; nor that he verbally abused her in front of customers; nor that he told her to “fuck off and get out of here”; nor that he or Mrs Turner told the Claimant “she’s fucking trouble and a fucking dangerous person.” We also found that the Claimant was not dismissed.[134]However, even if Mr Turner had sworn at the Claimant and told her to fuck off, we would not have found that this was unwanted conduct, simply because the Claimant was an active participant in swearing and had herself used the word fuck and cunt on occasion with respect to her manager Mr Turner.[135]Even if the factual premise of these allegations had been made out, we would nevertheless have dismissed them in any event because there was no relationship to sex – noting that the legal test is unwanted conduct related to sex rather than because of sex. The claim for harassment therefore fails and is dismissed in full. Detriment for family and domestic reasons[136]As regards detriment for family and domestic reasons, we note the Claimant was not required to rearrange her ante-natal appointment by the Respondent, however the Respondents did fail to pay the Claimant for the two antenatal appointments on 5 April and 11 May 2023. These were detriments, however neither were done because the Claimant was pregnant nor because she would take maternity leave in future. The failure to pay 5 April was a genuine error; the failure to pay 11 May was because the Respondents wrongly assumed it was due to sickness. The fact that 3 May 2023 was paid was a significant factor to us because it suggested that the Respondents were not opposed to paying for such appointments. The detriment claim therefore fails and is dismissed in full. Unauthorised deductions from wages[137]We uphold the claim with respect to 24 March 2023 for the Claimant’s attendance at the wake. It is not disputed that the Claimant worked the event but we are not persuaded to the level that we need to be (on the balance of probabilities) that the Claimant was paid in cash. We award 2.5 hours pay for the time worked at that event.[138]We uphold the complaint for 5 April 2023 which was admitted and we award 3.5 hours pay for the time spent at the appointment and travel time.[139]We uphold the complaint for 11 April 2023 as we find that this was an ante-natal appointment as it involved a health check for the baby, and we award 7 hours pay for the time spent at the appointment and travel time.[140]We dismiss the complaints about working on the market stall on 2 April and 7 May 2023 as we found the Claimant was paid in cash.[141]As regards the remainder of the deductions complaints, these are based upon the premise that the Claimant worked 7.5 hours per day, which we have found not to be the case as her hours varied daily. We are not persuaded based upon the evidence before us that the Claimant worked any of the hours she is claiming that she was not paid for. We note that the Claimant did not did not challenge her pay at the time which is a significant factor in our determination. We therefore dismiss the remainder of the complaints for unauthorised deductions from wages as we were not persuaded that the Claimant had worked 7.5 hours on each and every one of those other days. Holiday pay[142]The Claimant’s claim for holiday pay is based upon the premise that she worked 7.5 hours each day which we have not found to be the case as the hours varied daily. We therefore dismiss the claim for holiday pay as we are not persuaded that the Claimant was entitled to a further 2.4 hours of holiday pay based upon the calculations put before us which were based on that incorrect premise of working 7.5 hours per day. Failure to give rest breaks[143]The Claimant was entitled to rest breaks of 20 minutes provided for under Regulation 12, it was agreed with the Respondent that she would have 30 minutes, and we were not persuaded that the Respondent had failed to give her those rest breaks and we therefore dismiss the complaint. It was unnecessary therefore for us to consider the issue of compensatory rest breaks.
Remedy
[144]We will now consider the issue of remedy. With respect to unauthorised deductions, the Claimant’s hourly rate was £10.18 per hour. Our calculations were as follows: 24 March 2023 – 2.5 hours x £10.18 per hour = £25.455 April 2023 – 3.5 hours x £10.18 per hour = £35.6311 April 2023 – 7 hours x £10.18 per hour = £71.26[145]With respect to the failure to provide a statement under s.1 Employment Rights Act 1996, Mr Skipper invites us to award three weeks’ pay, and Mr Rahman invites us to award two weeks’ pay. We exercise our discretion to award two weeks’ pay because this is a small employer; the breach was not challenged at the time; and both parties approached their obligations towards each other informally on occasion with no obvious prejudice to the Claimant in that approach.[146]We based our calculation on the Claimant working an average of 6.5 hours per day, multiplied by two weeks (ten working days) at £10.18 per hour which amounts to £661.70.[147]The total award due to the Claimant is therefore £794.04. Approved by: