Mrs T Craigie v Salisbury Support 4 Autism Ltd: 3311691/2023
REASONS
[1]Following a period of conciliation, the claimant presented a claim form on 15/10/2023 by which she alleged direct and indirect sex discrimination, constructive unfair dismissal, harassment related to sex and failure to provide written statement of particulars of employment.[2]The claim arises out of the claimant’s employment by the respondent. The claimant resigned on 29/05/2023 and her employment ended on 26/06/2023.[3]The respondent entered a grounds of response on 12/02/2024.The hearing
[4]At the 5 day hearing we have had the benefit of hearing oral evidence from the following witnesses:4.1 the claimant.4.2 for the claimant: Ms. K. Mulligan, previously employed as Head of Behaviour Services by the respondent.4.3 For the respondent: Mrs. D. Din, Head of Human Resources.[5]We had the benefit of witness statements on behalf of the respondent from:5.1 Mr. M. Harry, Chief Executive Officer.5.2 Ms. A. Okoli, Behaviour Specialist, North Services.5.3 “Nikita”, currently Behaviour Specialist, formerly Behaviour Technician.5.4 Mr. K. Patel, Operations Lead, South Services.[6]Mr. Harry was in Dominica for the duration of this hearing. Under Presidential Guidance Taking Oral Evidence by Video or Telephone from Persons Located Abroad by the President, Employment Tribunals (England and Wales) issued 27/01/2025, Mr. Harry was not able to give oral evidence but could observe and could provide written submissions.[7]The claimant, Ms. Mulligan and Mrs. Din adopted in evidence written statements which had been exchanged in advance and were cross examined upon them. The parties had cooperated on a joint bundle of documents which consisted of 325 pages and a witness bundle of 23 pages. Page numbers in the joint bundle are referred to as [1] to [325] as appropriate.The issues
[8]The issues in the case are referred to in the Record of a Preliminary Hearing by Judge Bansal as found at [38]. The list referred to Direct Sex Discrimination (s13 of the Equality Act 2010) but only asked whether the alleged conduct had taken place. There was no reference to the other issues which form part of Direct Sex Discrimination (see law section below).[9]The claimant had also made a claim on the grounds of pregnancy and maternity discrimination but this does not appear in the list of issues. The tribunal told the parties that it would only be focussing on the claims listed in the issues. Neither party objected.[10]This list of issues finalised by Judge Bansal after the Preliminary Hearing were not in the bundle. Copies were found in the correspondence file and made available to the parties and the tribunal. The section “Application of Law to the Facts” answers each question as stated in the issues list. Law applicable to the issues[11]The relevant law is encapsulated in the list of issues save for in the case of Direct Sex Discrimination.[12]Direct Sex Discrimination in set out in Section 13 (1) of the Equality Act 2010, which reads: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[13]In every case the tribunal has to determine the reason why the claimant was treated as she was. This is the crucial question.[14]When deciding whether or not the claimant has been the victim of direct sex discrimination, a tribunal must consider whether the claimant has satisfied them, on the balance of probabilities, of facts from which they could decide, in the absence of any other explanation, that:14.1 the incidents occurred as alleged14.2 they amounted to less favourable treatment than an actual or hypothetical comparator did or would have received and14.3 the reason for the treatment was sex.14.4 If the tribunal is so satisfied, they must find that discrimination has occurred unless the respondent proves by cogent evidence that the reason for their action was not that of sex. Findings of fact and of credibility[15]The standard of proof that we apply when making our findings of fact is that of the balance of probabilities. Where it was necessary to resolve conflicting factual accounts, we have done so by making a judgement about the credibility or otherwise, of the witnesses we have heard from based on their overall consistency and the consistency of accounts given on different occasions compared with contemporaneous documents where they exist. Where it has not been possible to rely on the credibility of any of the witnesses on a particular point, we have relied on the contemporaneous documents, of which there are many in the bundle.[16]We took into account all of the evidence presented to us, both documentary and oral. We also took account of the closing submissions of both parties.[17]We do not record all of the evidence in these reasons, but only our principal findings of fact, those necessary to enable us to reach conclusions on the issues before us. Credibility of witnesses[18]The evidence of the claimant, Ms. Mulligan and Mrs. Din were largely credible but memories had dimmed after so much time and there were no written contemporaneous record of some of the key events. Background The respondentBackground
[19]The respondent is Salisbury Autistic Care Ltd which was incorporated in November 2004. In 2015, the organisation was rebranded to Salisbury Support 4 Autism Ltd. The aim of the company was to provide support services to people who had severe autism, and complex needs. The respondent employed about 170 employees of which about 20 were bank staff on zero hours contracts. The respondent offered day services, on the ground floor at the Head Office building in West Drayton, and supported living across about 9 houses divided into South and North Services. Support workers, a manager, and sometimes deputy manager, along with a Behaviour Technician was based at each of these houses. Head Office services such as HR, Finance, Training and Operations South Service and Recruitment were on the first floor at Head Office. The claimant’s post[20]The claimant was employed by the respondent originally as Behaviour Technician on 13/01/2020. She was promoted to Behaviour and Communications Practitioner in the summer of 2020. In November 2021, the claimant was promoted to Behaviour Specialist, South Services. Her contractual hours were 9am to 5 pm Monday to Friday. She reported to Ms. Mulligan, who resigned around the end of March 2023 and left at the end of June 2023.[21]The Behaviour Technicians in the South Service houses (Burden Lane, Manor Road, Highway and Hillcross) reported to the claimant. The claimant received reports from the Behaviour Technicians about observations of service users’ behaviours and interventions. She provided advice, virtual training and some in person training to the Behaviour Technicians as a group or individually in the houses concerning observations and interventions. The claimant also carried out her own observations and interventions in the houses if it was an area of her specialty or particularly challenging behaviour of a service user. She also provided on an occasional basis (e.g. twice a year) therapy for a week at a time to a service user who was in crisis e.g. due to a bereavement. She had had cases where the police had had to be involved due to the severity of the challenging behaviour.[22]The claimant was expected to make site visits to services 3 times per week on a phased basis [voice message on WhatsApp from Ms. Mulligan to the claimant dated 07/04/2023 page 305]. Ms. Mulligan confirmed this in oral evidence: “I wanted to ease her in…the intention was as long as she had returned within a year (to London)”. Mr. Harry said “It is not possible to do the work of a Behavioural Specialist under these conditions. Taylor would need to be in the services working hands on with the staff, and those who use our services at least 2 – 3 days per week. This is how the role was designed. The company supported her to work from home during her pregnancy for obvious reasons, but returning to work now, we would expect her to be able to fulfil her role” [Mr. Harry’s witness statement paragraph 1 page 3]. Chronology[23]The following events relevant to the issues: January 2022 Move from London to Cornwall 07/11/2022 - Annual leave 02/12/2022 05/12/2022 Start of maternity leave 07/11/2022 Intended date of return: Email Ms. Mulligan to 26 recipients stating that the claimant would return to work in April 2023 [178] 09/03/2023 Confirmation of return date. Email Ms Mulligan to Payroll Manager, Mrs. Din and claimant confirming also the intention to do Keep in Touch days (“KIT”) starting on 13/03/2023 to trial coming back to work [185] Around Ms. Mulligan resigns [witness statement paragraph 6]. 31/03/2023 05/04/2023 1st mention to respondent about forthcoming request to express milk at work. Email Ms. Mulligan to Mrs Din and claimant concerning need for risk assessment to create safe place to express milk [189] 17/04/2023 1st mention to respondent about forthcoming request for flexible working. Email Ms. Mulligan to Mrs. Din [191]. 01/05/2023 Return to work and return to work meeting. Email Ms. Mulligan to Mrs. Din, Payroll Manager and Claimant attaching notes of return to work meeting [205 & 212 – 213]. 02/05/2023 Submission of flexible working request. Email from claimant to Mrs. Din and form [214 & 162] On or about Ms. Mulligan sends claimant a job advertisement (personal number). 04/05/2023 Claimant says she has already applied [281]. 05/05/2023 Telephone Conversation (“the Conversation”) Mr. Harry and Ms. Mulligan about claimant’s request. Ms. Mulligan’s oral evidence clarified that this was on 05/05/2023. 05/05/2023 Telephone call from Ms. Mulligan to Mrs Din about the Conversation Ms. Mulligan’s oral evidence clarified that this was on 05/05/2023. 05/05/2023 Ms. Mulligan communicates with claimant about the Conversation. 10/05/2023 Respondent actions claimant’s return to maternity leave with effect from 11/05/2023. Email Mrs. Din to Ms. Mulligan, Finance cc. Mr. Harry. Ms. Mulligan forwards email to claimant. 10/05/2023 Claimant applied for job with Leonard Cheshire [oral evidence and witness statement paragraph 43] 11/05/2023 Interview invitation with Leonard Cheshire for 16/05/2023 [302] Informal offer and acceptance of employment with Leonard Cheshire. 29/05/2023 Claimant’s resignation. Email to Ms. Mulligan copy Mrs. Din [235]. On or about Ms. Mulligan’s last day with the respondent. 30/06/2023 Flexible Working Request and Request to Express Milk The Flexible Working Policy[24]The respondent’s Flexible Working Policy is at [155-157] with the blank form to be completed at [158].[25]The required stages with timescales are set out as follows and any information below is supplemented with Mrs. Din’s information about the procedure:25.1 Request in writing either on the form or in writing provided that all the information is included [155]25.2 Meeting with Line Manager to discuss within 28 days of request.25.3 Decision by Line Manager within 14 days of meeting which should be in writing.25.4 If agreed, Line Manager informs HR who actions the changes to the contract.25.5 If not agreed, right of appeal within 14 days of notification.25.6 Appeal hearing within 14 days of that25.7 Outcome of appeal to be notified 14 days after hearing.[26]In the claimant’s case, the dates for these stages were or would have been as follows:26.1 Request in writing formulated during meeting with Ms. Mulligan on 01/05/202326.2 02/05/2023: claimant submitted request.26.3 By 16/05/2023: claimant should have received written notification of the decision.[27]The policy stated that the line manager could decide but Mrs. Din told the tribunal that because this was a specialist role and due to an imminent restructuring of the Behaviour Department, Mr. Harry was more involved and he had to approve the flexible working request. The Flexible Working Request[28]The written request was for compressed working hours 37.5 per week. The return to work meeting notes identified Monday to Thursday 8 am to 6 pm. There was some confusion in that the claimant provided two versions of her request one of which stipulated 40 hours. The claimant explained that this was due to counting in lunch breaks, which was a mistake. The Conversation on 05/05/2023[29]Mr. Harry telephoned Ms. Mulligan on 05/05/2023 to discuss the flexible working request.[30]The tribunal had before it two accounts of the Conversation:30.1 Ms. Mulligan’s witness statement and contemporaneous WhatsApp messages to the claimant on her personal and on her work mobile number.30.2 Mr. Harry’s witness statement and his additional written submission[31]Ms. Mulligan admitted in oral evidence that she had taken no note of the Conversation. The first time she had put it into writing was in January 2025, when doing her witness statement. This was 20 months after the Conversation.[32]Ms. Mulligan’s account is that Mr. Harry was not happy with the claimant returning to work “in her current condition”. In her oral evidence, Ms. Mulligan referred to “in that condition”. “That condition” referred to “returning to work if she was still injured and couldn’t deliver physical training and needed breastfeeding adjustments”. Ms. Mulligan wrote that Mr. Harry was “annoyed to hear (the claimant) had requested that the company pay for a curtain for her car to breastfeed in” and was “particularly annoyed about the breastfeeding breaks”.[33]Ms. Mulligan further wrote that Mr. Harry said that the bottom line is it’s about value for money, he pays her a good salary and her coming back in that condition isn’t value for money for him. He then advised for her well-being, she shouldn’t be coming back to work and should have a longer maternity leave to recover. Ms. Mulligan ended her account by writing that Mr. Harry asked her to update the claimant that she is to return to maternity leave, not feel the need to rush back and that they can’t support the flexible working request as he needs her to be visible and available for any potential meetings that may occur on a Friday and at locations in person from the date of her return” [Ms. Mulligan’s witness statement paragraphs 7 – 8].[34]In oral evidence, Ms. Mulligan said that it was the first time he had ever been annoyed with her.[35]Mr. Harry’s account is that he asked Ms. Mulligan to explain what the claimant was requesting with regard to expressing milk. “I believe I referenced the company creating a space for her in our properties (service user homes) or in her car”. At this point, Mr. Harry notes that Ms. Mulligan was annoyed with Mrs. Din. She told the tribunal that this was because Mrs. Din should not have told Mr. Harry about the curtain as that had been rejected by the claimant. He comments that he felt he should move away from the topic as he might have put his foot in it.[36]Mr. Harry refers to the flexible working request as follows: “the claimant was request to work a shorter week with longer days whilst remaining in Cornwall. Neither would (the claimant) be able to actually work within the services because she had a spinal injury and therefore could not be exposed to challenging behaviour. It is not possible to do the work of a Behavioural Specialist under these conditions”. He also wrote that she needed to be in the services working hands on with the staff and those who use their services 2 – 3 days per week. He added that with Ms. Mulligan leaving it would also not be possible to supervise her effectively whilst she was so far away (in Cornwall).[37]He ended the account by writing that he had at no point denied the request to express milk as our discussion did not progress on that subject. He denied the request for flexible working and asked for Ms. Mulligan to speak with the claimant to come back to him with another plan. He states that at no point did he order or instruct the claimant to go back on maternity leave. He suggested it because of his view that she needed time to recover fully from her spinal injury” [ Mr. Harry’s witness statement pages 2 – 3].[38]In his written submission, Mr. Harry writes that there was no issue with the company needing the claimant to work on a Friday. I wanted Behaviour Specialists to be available 5 days per week (this could include weekends). His main issue was that she would be living in Cornwall. Assessment of the Conversation[39]When examining the different accounts, the tribunal weighed up the following:[40]In favour of Ms. Mulligan’s account:40.1 Mrs. Din said in oral evidence that in their telephone conversation, Ms. Mulligan told her that Mr. Harry was annoyed and that Ms. Mulligan seemed upset. This seems to support that Mr. Harry was not as calm as he portrays himself in his written evidence.40.2 Mrs Din confirmed that Ms. Mulligan said how could the claimant go back on maternity leave.[41]In favour of Mr. Harry’s account:41.1 Ms. Mulligan’s account is very detailed, quoting Mr. Harry’s words. Yet she made no notes contemporaneously or at any time before January 2025 and there was a delay of 20 months before she first wrote down her recall.41.2 Ms. Mulligan was engaging in private communications with the claimant not keeping Mrs. Din in the loop. It seemed that she was not interested in resolving the situation at the respondent for the claimant e.g. by encouraging her to apply for another job on 04/05/2023 [281] and telling her at 16.49 – 17.05 on 10/05/2023 not to wait for any official communication about returning to maternity leave [283].[42]The tribunal find that Mr. Harry did not refuse the request for flexible working in totality. In other words, he did not reject flexible working in itself. He refused the request before him which in our view, had not been fully detailed. Instead he asked for another version of flexible working. The deadline for the respondent to notify the claimant of their final decision was not until 16/05/2023.[43]The respondent did not refuse the expressing milk request. They had not decided. Mrs. Din made it clear that the risk assessment was provisional. The risk assessment itself had rejected the use of the toilets, the car, Head office due to the high to medium risks arising from all of the locations in the risk assessment. The suggestion of the storage next to the sensory room, which was lockable and could be private and not visible was introduced by Mrs. Din on 05/04/2023 [190]. Neither Ms. Mulligan nor Mrs. Din could explain why this room was left off the risk assessment. The tribunal found that this room would have been very suitable. The claimant however said that she had never been told about that room. The tribunal cannot understand why Ms. Mulligan who talked to the claimant about everything else relevant to her return did not tell her about this room. The claimant had worked from home for the 8 days during which she had returned to work. There was no pressure on the claimant to stop working from home therefore there was time to finalise the arrangements for expressing milk in the services and at head office.[44]The tribunal find that Mr. Harry is more likely than not to have made some comment about going back on maternity leave. This would have been a spur of the moment remark, not fully thought through. It is not possible to make a finding about the exact words used by Mr. Harry because the Conversation was so long ago and the record of it only done 20 months later. The tribunal can accept that Mr. Harry did not intend to order or instruct but given that he is the CEO, he could have appreciated that any “suggestion” would have been taken as an instruction.[45]The tribunal have to decide first whether Mr. Harry said “coming back in that condition is not value for money” and secondly, what that condition referred to in its entirety.[46]The tribunal remind themselves that both Ms. Mulligan and the claimant said that Mr. Harry had been supportive of them in the past with working remotely and with sick leave. The tribunal takes the view that Mr. Harry made some comment on the spur of the moment. The tribunal do not consider that Mr. Harry used those exact words. The tribunal finds that Mr. Harry made some comment that it was not value for money to have the claimant back at work when she could not fulfil her full role, due to her “spinal injury” and being in Cornwall. A detailed analysis of the witness statements of Mr. Harry and Ms. Mulligan and the oral evidence does not support any other conclusion. By way of background, the T 47. tribunal was told that the job was “ad hoc” in the sense that behaviour of the service users could sharply and unpredictably deteriorate. We were also told that the police had been called in on occasion. The tribunal therefore finds that it was plausible that the claimant could have been exposed to unexpected physical danger. Application of the Law to the Facts Indirect Sex Discrimination (s19 Equality Act 2010)[48]The respondent had the PCP of requiring employees to work full time 5 days a week. Mrs. Din and Mr. Harry agreed that 5 days were required, one of which could be at weekends. Working on a Friday was not an issue; this was confirmed by Mr. Harry in his additional submission. The tribunal observed that none of the Behaviour Department (Technicians, Specialists) were engaged to work weekends yet the service users lived in these houses 24/7.[49]The respondent applied the PCP to the claimant. This is because even though Mr. Harry said to produce a new flexible working request, this would have had to have 5 days on it to satisfy him.[50]The respondent applied the PCP to persons with whom the claimant does not share the protected characteristic. Mrs. Din gave the example of a (male) Deputy Manager of Services who could not work one weekday and came in instead on the weekend to make up the 5 days per week.[51]The PCP put persons with whom the claimant shares the protected characteristic (women) at a particular disadvantage when compared with male staff. The tribunal is aware of the generally accepted view that this is the case (see Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19/LA(V)).[52]The PCP put the claimant at that disadvantage because she could not find childcare on a Friday. At the time, the claimant was not asked about considering whether she could work on a Saturday or Sunday on a regular basis.[53]The legitimate aim of this PCP was not stated in any witness statement. In oral evidence, however, Mrs. Din said that with the restructuring, there would be a greater incidence of more challenging behaviour and/or a greater proportion of service users with challenging behaviour. This would generate more demand from the Support Workers and Behaviour Technicians for advice, support, training, guidance and intervention by the Behaviour Specialist. The restructuring document supported this. It said that the role of the Behaviour Specialist would be unchanged. The Behaviour Specialist would focus on supporting skill acquisition with services users who have challenging behaviour as opposed to service users with no behaviours that challenge.[54]The tribunal concludes that the respondent had not given proper thought to the aim of this PCP. In essence the respondent is saying there will be more work but they want it done without increasing people’s hours or salary.[55]The tribunal did not find this a legitimate aim. If the work volume was going to increase, the solution would be to recruit more people.[56]If the tribunal is wrong about this and it is a legitimate aim, the respondent has not shown how 5 days per week would achieve this. Further, the respondent has not demonstrated that this is a proportionate means of achieving this aim.[57]The claim of indirect sex discrimination is well-founded and succeeds. Direct Sex Discrimination (s13 Equality Act 2010)[58]The respondent did not refuse the claimant’s request to express milk in a private room for the reasons set out above. In sum, the respondent considered the risk assessment provisional and had suggested a possible suitable room (the store room next to the sensory room).[59]The respondent did not make the claimant express milk in her car or the toilet. The respondent accepted that neither were suitable by assessing these options as high to medium risk. Further this was a provisional assessment and the request was still under review. During the 8 days of work (01/05/2023 – 10/05/2023), the claimant told the tribunal that she was catching up on emails, administration, virtual meetings etc all of which could be done remotely at home.[60]The respondent did make the claimant return to maternity leave on 10/05/2023. Due to his being the CEO, it was reasonable that Ms. Mulligan took his suggestion as an instruction. Mr. Harry may have been acting with the best intentions but a return to maternity leave was unlawful. In the circumstances, the correct legal approach given his expressed concerns about the impact of the work on her health would have been to discuss with her whether a period of sickness absence or other accommodations would have been appropriate. There is nothing in any of the evidence to show that the claimant agreed to returning to maternity leave at any point. Although Mrs. Din used the phrase “mutually agreed”, she explained at the hearing that this was an assumption [email dated 10/05/2023 at 216]. She seemed to have misunderstood from Ms. Mulligan’s words “the claimant was going back on maternity leave” that the claimant had agreed.[61]Mr. Harry did not say to Ms. Mulligan that “because the claimant made a request for flexible working that she was not value for money and should return back to maternity leave”. The tribunal has explained above their findings of what Mr. Harry said, which was very different from this quote.[62]The respondent did not reject the claimant’s flexible working requests: see above for reasons.[63]The incident (being made to go back on maternity leave) occurred.[64]That incident amounted to less favourable treatment than actual comparator would have received (a man returning from paternity leave, who was then required to go back on paternity leave).[65]The reason for the treatment was sex.[66]The respondent did not offer and therefore did not prove by cogent evidence that the reason for their action was not that of sex.[67]The claim of direct sex discrimination is well-founded and succeeds. Constructive Unfair Dismissal (s95(c) Employment Rights Act 1996)[68]The claimant was dismissed.[69]The respondent did not make the claimant breastfeed in her car/toilet. (The tribunal notes that breast-feeding was never the issue but rather expressing milk). The tribunal has explained above why it finds that the respondent did not make the claimant express milk in her car/toilet.[70]The respondent did not reject the claimant’s flexible working request on 10/05/2023. See above.[71]The respondent made the claimant go back on maternity leave. See above.[72]The respondent did not make the discriminatory comments on 05/05/2023 to Ms. Mulligan as alleged.[73]The respondent did maintain that the claimant “mutually agreed” to return to maternity leave on 10/05/2023. The allegation as stated contains the word “falsely”, indicating an accusation of lying. The tribunal found that there was no lie; this was a misunderstanding on the part of the Head of HR. Did the act of making the claimant go back on maternity leave breach the implied term of trust and confidence as relied upon by the claimant?[74]The tribunal find this act breached the implied term of trust and confidence. The claimant told Ms. Mulligan on 08/05/2023 that she was feeling “beyond demotivated and almost called off today ngl (not going to lie) but I’m here” [290].[75]The respondent did not have reasonable and proper cause to require the claimant to go back on maternity leave because this was an unlawful act and if all the Senior Managers involved had acted together and had analysed the situation more closely, they would have seen reasonable alternatives. Was the breach fundamental?[76]The breach was fundamental. The claimant wanted to get solutions to her requests. Mrs Din’s email copied by Ms. Mulligan to the claimant dated 10/05/2023 would not have inspired her with confidence that her requests would be dealt with any time soon. Did the claimant resign in response to the breach?[77]The claimant did not resign in response to the breach:77.1 The claimant did not resign on 10/05/2023. She waited until 29/05/2023.77.2 She said she was waiting for a reference from the respondent before resigning. The reference was not sent until 02/06/2023 [242]. Thus she resigned before the reference.77.3 The claimant did not lodge a grievance.77.4 She said this was because of fear of retaliation against her or Ms. Mulligan. Ms. Mulligan’s oral evidence was that she would have supported the claimant if she had wanted to make a grievance. Ms. Mulligan was reassured by her partner that they could manage financially if Ms. Mulligan was asked to leave the respondent before her notice had expired.77.5 The claimant said she was able to resign after speaking to ACAS and a character reference from Ms. Mulligan. Most employees recognise that a character reference will not be sufficient to satisfy a prospective employer.77.6 No reason was given as to why the claimant did not lodge a grievance after the reference and before the end of her notice period on 26/06/2023.77.7 Although she stated that she had decided that she would do no more work for the respondent after 10/05/2023, this was not relevant. Being on maternity leave, the claimant was not asked to do any work for the respondent.77.8 The claimant said that she was afraid of retaliation. Ms. Mulligan and the claimant told us about an employee, Jack, in recruitment whom they alleged was dismissed by way of false redundancy. They said this was because he wanted to continue working from home and the respondent did not want that.77.9 The claimant’s resignation email made no reference to any of the allegations made by the claimant in these proceedings.[78]The claimant resigned in response to the job offer, informally made on 16/05/2023. The claimant had already applied for another job on 04/05/2023. Harassment related to Sex (s.26 Equality Act 2010)[79]The respondent did not make the claimant breastfeed in her car/toilet. (The tribunal notes that breast-feeding was never the issue but rather expressing milk). The tribunal has explained above why it finds that the respondent did not make the claimant express milk in her car/toilet.[80]The respondent did not make the discriminatory comments on 05/05/2023 to Ms. Mulligan as alleged.[81]The claim of harassment related to sex is not well-founded and is dismissed. Failure to Provide Written Statement of Particulars of Employment – s1 Employment Rights Act[82]The respondent has provided a statement of main terms of employment dated 13/01/2020 [73- 82]. This is not signed which is not unusual in the tribunal’s experience.[83]The claimant has alleged that this is a fabricated document. Any allegation of fraud or deception needs to be supported by robust evidence. The claimant’s evidence is that the job title of Ms. Mulligan is wrong. She was Behaviour Specialist on 13/01/2020 and only became Head of Behaviour a number of months later.[84]The offer of employment has Ms. Mulligan’s title as Behaviour Specialist. This was signed by the respondent on 20/01/2020 but not the claimant [83]. There is a page acknowledging receipt of the employee handbook and reading understanding and accepting the terms and conditions signed by the respondent and by the claimant on 28/01/2020 [84].[85]The claimant’s case is that she was not given a statement of the particulars of her employment within 8 weeks.[86]The tribunal do not accept that the statement was a fabrication. Rather the respondent forget to do it and did it post 8 weeks, put it on the file and forget to get the claimant’s signature. Mrs. Din said she had found the statement in the file. Mrs. Din was not employed by the respondent when the claimant joined.[87]The claim for failure to provide a written statement of employment particulars is well-founded and succeeds.[88]Three claims have succeeded (Indirect Sex Discrimination, Direct Sex Discrimination and Failure to provide a written statement of employment particulars). Two claims are not wellfounded and are dismissed. Approved by:The hearing
[1]The Tribunal had the benefit of the following documents:1.1 Claimant’s Supplemental Bundle (“CSB”). Page numbers in this bundle are referred to as [CSB1 to CSB6] as appropriate.1.2 Claimant’s witness statement for remedy: 9 pages.1.3 Remedy statement from Mr. Peter Sharp, the Claimant’s husband: 2 pages.1.4 Respondent’s Remedy Bundle (“RRB”). Page numbers in this bundle are referred to as [RRB1 to 113] as appropriate.1.5 An updated Claimant’s schedule of loss at [RSB18 – 19].1.6 Witness statement for remedy from Mrs. Dinya Din, Head of Human Resources: 11 pages.[2]At the hearing on 2 May 2025, we had the benefit of hearing oral evidence from the following witnesses:2.1 the Claimant.2.2 for the Claimant: Mr. Sharp2.3 For the Respondent: Mrs. Din.[3]The Claimant, Mr. Sharp and Mrs. Din adopted in evidence written statements and were cross examined upon them. Closing submissions followed. The Tribunal met on 25 July 2025 for a deliberation day.The issues
[4]The Claimant succeeded in the following claims and that determined the scope of the remedy hearing:4.1 Indirect sex discrimination and direct sex discrimination. This required the Tribunal to look at an injury of feelings award and statutory interest. The Respondent’s position was that an award at the bottom of Vento Band 1 was appropriate (£1,200). The Claimant’s position was that an award at the bottom of Vento Band 2 was appropriate (£11,300).4.2 Failure to provide written particulars. The Respondent submitted that 2 weeks gross pay capped at £643 should be awarded (£1,286). The Claimant agreed with the amount but contended that 4 weeks should be awarded (£2,572).4.3 Loss of earnings for the period 11 May 2023 – 26 June 2023 whilst the Claimant had been sent back on maternity leave and was still employed.4.4 Interest.[5]In her remedy statement, the Claimant asked for up to 8 weeks’ pay for the Respondent’s failure to follow ACAS guidance on flexible working. The Tribunal discussed this with the parties at the outset of the hearing. The Claimant accepted that she had not mentioned a claim concerning failure to follow ACAS guidance on flexible working in her ET1 nor did it seem to have been raised at the Preliminary Hearing Case Management with Judge Bansal. It did not appear in the list of issues. The parties confirmed their understanding at the start of the liability hearing that the list of issues governed what the Tribunal could look at. It follows that this was not something which the Tribunal could consider at the remedy hearing.[6]There was some misunderstanding in that the Claimant sought compensation for unfair dismissal in her updated schedule of loss. In discussion, the Claimant accepted that in the liability judgment, this claim failed. Law applicable to the issues Injury to Feelings[7]The framework for deciding injury to feelings is based on the Vento bands and updated annually in line with inflation. The ET1 was lodged in October 2023. Therefore, the relevant date for values of Vento Bands was 6 April 2023:7.1 Lower band £1,100 to £11.2007.2 Middle band £11,200 to £33,7007.3 Upper band £33,700 to £56,200.[8]Relevant factors include:8.1 Severity and duration of discriminatory treatment/8.2 Impact on Claimant.8.3 Vulnerability of Claimant.8.4 Nature of the incidents; whether discriminatory acts were isolated or part of a broader pattern of behaviour.8.5 Relationship between the parties including status of person carrying out the acts8.6 Context8.7 The Claimant’s description of their injury and the duration of its consequences.[9]The following cases were relevant and a summary for each is set out to assist the parties’ in understanding the Tribunal’s decision.[10]Williams v Central Manchester University Hospitals NHS Trust ET Case No.2408486/10: During a meeting to discuss her return to work, an associate director of HR said to W, who is Jewish: ‘You wouldn’t expect a Jew to take up a post with the Gestapo, would you, because after all, they wouldn’t fit — it wouldn’t work.’ The Trust offered no apology at the time but admitted at the Employment Tribunal hearing that the remark constituted race discrimination. The Tribunal found that the remark was deeply offensive and vindictive but noted that it was a one-off. It awarded W £4,500 for injury to feelings.[11]Sethi v Elements Personnel Services Ltd ET Case No.2300234/18: EPS Ltd, an employment agency providing temporary staff for the hospitality industry, operated a ‘no beards’ policy. An Employment Tribunal held that this policy indirectly discriminated against S — a practising Sikh — on the ground of his religion/belief, since he was unable to cut his beard for faith reasons. As regards remedy, the Tribunal concluded that the case fell within the lower Vento band for injury to feelings. The discriminatory act had been a one-off incident occurring in the context of very little contact between the parties. While it was clear that S’s feelings had been hurt by the way EPS Ltd had treated him, his evidence indicated that he had also suffered apparently discriminatory incidents after his involvement with the agency ended, which were not therefore EPS Ltd’s responsibility. The Tribunal assessed the appropriate level of compensation to be £5,000.[12]Blyth v BR Fast Foods Ltd ET Case No.4110611/21: B was employed as a waitress. After her maternity leave, she notified BRFF Ltd of her wish to return to her previous work pattern, which was 16 hours per week with no fixed days, in order to fit in with her childcare and counselling sessions. B suffered from PTSD due to a past abusive relationship and was undergoing regular counselling. BRFF Ltd refused B’s request, stating that it could no longer accommodate the flexible work pattern for business reasons. This decision was communicated in the restaurant in front of other staff and customers after B had taken in her new baby during her maternity leave. After resigning, she claimed unfair constructive dismissal, disability discrimination, pregnancy/maternity discrimination and victimisation. An Employment Tribunal upheld all of these claims. As regards compensation for injury to feelings, the Tribunal considered that the case fell within the upper quartile of the lower Vento band. There had been no concerted campaign against B, but the discriminatory treatment was not an isolated incident as there were other issues concerning the way she had been treated throughout her employment. Although B and her father gave compelling evidence of the hurt she had suffered and how this had affected her (such as causing problems in her marital relationship and financial difficulties), no medical evidence had been placed before the tribunal. This made it difficult for it to differentiate between any stressors caused by the employer and other stressors, such as the lack of regular income and the stress of undertaking Tribunal proceedings, which were not attributable to BRFF Ltd’s discriminatory conduct. The appropriate compensation for B’s injury to feelings was assessed to be £6,285. Failure to provide written particulars[13]An Employment Tribunal may award two or four weeks’ pay after considering factors to determine what amount is “just and equitable”:13.1 Seriousness of breach: was this a complete or partial failure?13.2 Impact on employee: did this cause a genuine detriment such as difficulty understanding their rights, challenging a decision etc.?13.3 Employer’s conduct: was this a deliberate act or an error?13.4 Efforts to rectify: did the employer make any attempt to provide the statement, even belatedly and if so how prompt or comprehensive were those efforts?13.5 Were there any genuine exceptional circumstances beyond the employer’s control? Gross v net[14]The amounts in the final calculations for loss of earnings are gross not net for the following reasons:14.1 Regulation 37a of The Income Tax (P.A.Y.E.) Regulations 2003 requires that retrospective employment income (that is income paid after cessation of employment) is taxed.14.2 The principle established in British Transport Commission v Gourley [1955] 3 All ER 796, is that an award should be “grossed up”' so as to ensure that a Claimant is not left out of pocket when any tax required to be paid on the award has been paid. Findings of fact and of credibility[15]The standard of proof that we apply when making our findings of fact is that of the balance of probabilities. Where it was necessary to resolve conflicting factual accounts, we have done so by making a judgement about the credibility or otherwise, of the witnesses we have heard from based on their overall consistency and the consistency of accounts given on different occasions compared with contemporaneous documents where they exist. Where it has not been possible to rely on the credibility of any of the witnesses on a particular point, we have relied on the contemporaneous documents, of which there are many in the bundle.[16]We took into account all of the evidence presented to us, both documentary and oral. We also took account of the closing submissions of both parties.[17]We do not record all of the evidence in these reasons, but only our principal findings of fact, those necessary to enable us to reach conclusions on the issues before us. Credibility of witnesses[18]The evidence of the Claimant, Mr. Sharp and Mrs. Din were largely credible but memories had dimmed after so much time and there were no written contemporaneous record of some of the key events. Background The RespondentBackground
[19]The Respondent is Salisbury Autistic Care Ltd which was incorporated in November 2004. In 2015, the organisation was rebranded to Salisbury Support 4 Autism Ltd. The aim of the company was to provide support services to people who had severe autism, and complex needs. The Respondent employed about 170 employees of which about 20 were bank staff on zero hours contracts. The Respondent offered day services, on the ground floor at the Head Office building in West Drayton, and supported living across about 9 houses divided into South and North Services. Support workers, a manager, and sometimes deputy manager, along with a Behaviour Technician was based at each of these houses. Head Office services such as HR, Finance, Training and Operations South Service and Recruitment were on the first floor at Head Office. Application of the Law to the Facts - Failure to provide written particulars[20]Mrs. Din said this was an error. The Tribunal accept this as the reason for the omission. Nevertheless, providing written particulars of employment within the requisite time period is a basic task for the Human Resources department. In addition, the Respondent had no system of checks in place to pick up this error. They only detected the error when compiling the bundle for the liability hearing. Furthermore, the Tribunal accept the Claimant’s evidence that this omission handicapped her. She constantly had to ask about fundamental aspects of her employment.[21]For these reasons, the Tribunal decided that 4 weeks’ is the appropriate award = £2,572.[22]Interest: the Claimant started employment on 13 January 2020. At that date, an employer was required to provide the written particulars within 2 months. Thus by 13 March 2020. Interest will be from the midpoint in the period 13 March 2020 to 25 July 2025. That is a 1960 day period thus the number of days from the midpoint and the number of days’ interest at 8% will be 980. Yearly interest £2,572*0.08 = £205.76. Daily interest = £205.76/365=£0.56. Total interest = £0.56 *980 = £548.80.[23]The total of award + interest = £3,120.80 Application of the Law to the Facts - Loss of earnings[24]The Claimant was put back on maternity leave on 11 May 2023. The Claimant resigned on 29 May 2023 and her effective date of termination was 26 June 2023.[25]During the period 11 May 2023 – 26 June 2023, the Claimant was only in receipt of SMP at the gross rate of £172.48 per week.[26]The parties agreed that the Claimant’s gross weekly pay was £730.62.[27]The Respondent submitted that this period of time was 7 weeks [respondent’s submission page 9 paragraph 30].[28]The Respondent submitted that the Claimant should be paid £2,441.09 [respondent’s submission page 9 paragraph 30 and WS Din paragraph 10]. The Respondent’s position was that the Claimant had been fully paid in April 2023 for 7 days holiday and maternity pay (£1,023.08 + £680.88 = £1,703.96) and in May 2023 for 16 days (8 days worked in May 2023 and 8 Keep in Touch (“KIT”) days in April 2023)(£2,338.46 + £813.12 =£3,151.58) [WS Din paragraphs 5 – 7 at page 2 and referring to email from Beatrice Handa, Financial Controller, 22 April 2025 and historical data summary 25 December 2023 RRB 55].[29]The Claimant submitted that she had not been paid for the 8 days worked in May 2023 which in her view amounted to £3,216 [WS Craigie page 7 lines 208-211].[30]The Claimant did not provide any documentary evidence to support her view that she had not been paid for the 8 days worked in May 2023 or that 8 days would have amounted to £3,216 gross pay. In contrast, the Respondent has provided clear documentary evidence of the Claimant being paid for those 8 days worked in May 2023 [RRB 55] and clear supporting explanations [WS Din paragraphs 5 – 7]. This documentary evidence and explanation by Mrs. Din was not challenged in cross examination by the Claimant.[31]For these reason, the Tribunal finds that the Claimant was paid for the 8 days worked in May 2023 and she received all monies due in full.[32]In terms of the difference between her gross pay and SMP, the Claimant is entitled to £730.62- £172.48 = £558.14 x 7 = £3,906.98.[33]Interest will be from the midpoint in the period 26 June 2023 to 25 July 2025. That is a 760 day period thus the number of days from the midpoint and the number of days’ interest at 8% will be 380. Yearly interest £3,906.98*0.08 = £312.55. Daily interest = £312.55/365=£0.85. Total interest = £0.85 *380 = £323.[34]The total of award + interest = £4,229.98. Application of the Law to the Facts - Injury to feelings[35]The Tribunal sets out below their findings of fact and conclusions about the factors relevant to a decision about which Vento band and the position within it:35.1 The Claimant was 5 months postpartum. She had first returned to work for a KIT day on 9 March 2023 and returned to work on 1 May 2023 (see chronology in liability judgment). She said she was re-establishing her work identity. The Claimant said that she had coped well with the baby. There was no evidence to show that she was more vulnerable in returning to work than any other mother returning to work from maternity leave. The Tribunal concluded that the Claimant was quite vulnerable as anyone would be who is re-establishing themselves at work after an absence.35.2 The Claimant had applied for another job (not the one with Leonard Cheshire) before 4 May 2023 [see B281], thus at some time during her first three days back working with the Respondent. At that stage and before the conversation with Mr. Harry (Chief Executive) on 5 May 2023, the Claimant had therefore already disengaged to some extent from the Respondent. The Tribunal would go further than that; this is explained in the next paragraph.35.3 The Claimant applied for the Leonard Cheshire job on 10 May 2023. At 11.47, the Claimant wrote to Emry Robinson on a social media message “also I’m leaving my job…”. This was before the email at 15.49 from Mrs. Din to Ms. Mulligan confirming that the Claimant would be required to cease work and take maternity leave. The plain meaning of “leaving my job” is that the Claimant was going to leave the Respondent permanently, not that she was going home for a period of further maternity leave. This message together with the other messages between the Claimant and Ms. Mulligan, explored through cross examination at the liability hearing, lead the Tribunal to conclude on the balance of probabilities that the Claimant had already decided to leave her job with the Respondent before she returned from maternity leave.35.4 There were two occurrences of discrimination across 4 working days.35.5 Mr. Harry was the decision maker for both the requirement to work a 5 day week and for the Claimant to stop work and “return to maternity leave”. He was the most senior person in the organisation and at that time, the owner of the company. Mrs. Din was not the decision maker. She took the role of implementing Mr. Harry’s decisions. In other words, the Tribunal find that one very senior person was responsible.35.6 The Claimant considered that she has suffered reputational and psychological damage because of Mr. Harry’s comment. She quoted the following extract from Mr. Harry’s witness statement at the last paragraph: “It is well known that Kat and Taylor are personal friends, and their text messages show clearly that they were colluding in order to manufacture a set of circumstances to result in this action, what other explanation could there be for Kat to send such messages of which we weren’t made aware even when specifically later as a result of Taylor submitting this SAR request”.35.7 In this extract, Mr. Harry’s view seems to be that first, the Claimant wanted to leave anyway. Secondly, with Ms. Mulligan’s help, they used a set of circumstances (request for breast-feeding at work and a 4 day week) to create responses and reactions which would enable the Claimant to bring Employment Tribunal claims.35.8 The Tribunal takes the view that Mr. Harry’s first opinion was correct. The Claimant wanted to leave anyway. With regard to his second opinion, the key question is whether his comment caused the Claimant any reputational damage. The Claimant has provided no evidence that her reputation has been damaged. In fact, it is the opposite. The Claimant was able to obtain an offer of interview (on 11 May 2023) within a day of making the application to Leonard Cheshire. When the interview took place on 16 May 2023 (having had to be rescheduled), the Claimant received an informal job offer at the interview.35.9 The Claimant’s mental health. In oral evidence under cross examination, the Claimant said that she had a diagnosis of depression in December 2023. She confirmed that she had no appointment prior to May 2023 for depression or anxiety. The Claimant said that she had not sought help for mental health until April 2024. She admitted that she had no contemporaneous medical records to support her claim of anxiety or panic attacks due to the Respondent’s conduct. She said that she had failed to seek help earlier because she was concerned about her certification with the British Association for Counselling and Psychotherapy (BACP). The Claimant did not call the BACP to discuss whether any mental health condition could affect certification until December 2024. The Tribunal accept that the Claimant had some mental health problems in 2024 since she was prescribed a first line antidepressant sertraline (50 mg per day) on 26 March 2024, switched to Escitalopram 10 mg per day in April 2024 and been referred to talking therapies and made contact with them towards the end of April 2024 [Liability Bundle 50 - 52].35.10 The Claimant wrote to her GP (in an undated letter) to obtain a letter about all GP consultations in the period from May 2023 to May 2025, to include any referral for treatment, fit notes and treatment [CSB 2]. The invoice for £40 from the GP says that the letter will be available 14 days from receipt of payment [CSB 3]. The invoice was issued on April 29 2025 and payment was expected on April 29 2025. The invoice shows that as at 30 April 2025, the Claimant had not paid the invoice. If the Claimant had paid on April 29 2025, she would not have received the letter until 13 May 2025, 11 days after the remedy hearing. The Tribunal concludes that the Claimant did not leave herself enough time to obtain medical evidence.35.11 The Claimant states in her witness statement that she suffered a “severe psychological impact” as a result of the Respondent’s two discriminatory acts. In her letter to the GP, the Claimant states that in March and April 2024 “she had a “massive mental health crisis and ended up signed off from work for 3 months receiving treatment for anxiety and depression”. She wrote that on 4 April 2024, she attempted suicide and was taken to Accident and Emergency by her husband [page 4 WS Craigie at lines 107 – 111). The Claimant provided no medical evidence of a massive mental health crisis, attempted suicide and subsequent treatment for that. The Tribunal cannot adopt the Claimant’s evidence without medical evidence to support her account, given the severity of what she says happened.35.12 Furthermore, there was a gap of 11 months between the discriminatory acts by the Respondent and the mental health crisis referred to by the Claimant. The Claimant would have needed to provide medical evidence showing a causal link between these discriminatory acts and her mental health following May 2023 and in particular 11 months afterwards (in April 2024).35.13 The Tribunal is aware that the Claimant has provided messages from May 2023 to October 2024 about depression, stress and sadness e.g. 16 May 2023 “I’m just depressed” and 5 November 2023 “I’ve literally planned how to kill myself about 12 times”. These messages however seldom link her feelings to two discriminatory acts in questions. The only message that clearly links these acts to a feeling is: “I’m feeling beyond demotivated and almost called off today ngl but I’m here” [Joint Bundle 290 and judgment paragraph 74]. This indicates demotivation not severe distress.35.14 On 11 April 2024, the Claimant was in the waiting room to see her GP and received a “cost warning” letter by email from the Respondent in which she says that she was threatened with legal costs of £8,000 to £9,000 [page 4 WS Craigie lines 113 – 119 & RRB 66].35.15 The Tribunal do not find this letter (from Mrs. Din) threatening. The tone is moderate. The letter urged the Claimant to pursue a difference avenue of reconciliation rather than proceedings. The reference to a possible costs award is standard in such letters.35.16 In another part of her remedy statement, the Claimant suggests that the Respondent’s actions have caused her to have panic attacks “over every conversation with HR, to work overtime and to prioritise work over my family life in an attempt to prove that I am not of any less value because she has a child” [page 5 WS Craigie]. The Claimant provided no independent evidence of these matters. For example, if there were panic attacks in interactions with HR, HR might have written a letter substantiating this or produced timesheets and pay records to support excessive working.35.17 In his witness statement, Mr. Sharp said that he was so worried about the Claimant self-harming, that he had to watch over her at night. Again, no medical evidence was provided to establish that the Claimant was self-harming and that this was causally linked to the Respondent’s actions in May 2023.35.18 The Claimant stated that that in or around June 2023, she tried to call off her wedding due to fears of not being able to secure a job or a similar thing happening at the next job [page 3 of WS Craigie lines 68 – 71]. By 16 May 2023, the Claimant had secured another job (an informal offer). She resigned on 29 May 2023 and her new employer, Leonard Cheshire, received a reference from the Respondent on 2 June 2023. Therefore by June 2023, the Claimant knew that she had a new job, albeit one that did not start until early September 2023. The Claimant also said that she and Mr. Sharp did not take a honeymoon because they felt financially insecure.35.19 The Tribunal accept that the Claimant experienced a financial detriment by being put back on maternity leave (£3,906.98). Although the Claimant will now be compensated for this loss directly, the Tribunal acknowledge how worried it would have made the Claimant – by being short unexpectedly of £3,906.98 gross. The Claimant is likely, as many women, to have planned the length of her maternity leave in line with her financial commitments and ability to meet them.35.20 By their action of putting the Claimant back on maternity leave, the Claimant was isolated from her colleagues. There was no challenge about the degree and nature of this isolation by Mr. Hussain. Therefore the Tribunal accept that the Claimant’s colleagues began to unfriend her on social media from June 2023 and that she was locked out of all account relating to the Respondent with no notice, despite being an official employee for 4 more weeks. Being locked out of all accounts on resigning can be a usual practice in some companies but the Tribunal accepts the Claimant’s position: that this was not the typical procedure for the Respondent.35.21 Having considered Williams, Sethi, and Blyth, the Tribunal decided to award £4,000. Mr. Harry’s comments were not deeply offensive or vindictive as in Williams. This was more than a one-off as there were two incidents – see Sethi. They, however, were little beyond a one-off in that they arose from the same set of facts and were only 4 working days apart. Moreover, this was not a concerted campaign. With regard to the effect on the Claimant’s mental health, this case could be distinguished from that of Blyth where despite the absence of medical evidence, the Tribunal found the oral evidence of the Claimant and her father compelling. The two acts were not done in public as with Blyth, leading to public humiliation, although there was private humiliation due to being unfriended on social media. The case could also be distinguished from that of Blyth with regard to consequences. Ms. Blyth and the Claimant both experienced hurt but the Claimant did not experience, as did Ms. Blyth, problems in her marital relationship or financial difficulties. The Claimant in contrast had financial worries.[36]Interest will be from the date of the acts. The number of days in the period 5 May 2023 to 25 July 2025 is 812 again at 8%. Thus yearly interest will be £4,000*0.08=£320. Daily interest = £320/365 =£0.87. Total interest = £0.87 *812 = £706.44Conclusions
[37]Interest for injury to feelings to run from the date of the acts 5 May 2023 812 days Approved by: