Ms H McCarthy v Right Choice Services Ltd: 3320196/2019

EMPLOYMENT TRIBUNALS

Case No 3320196/2019

Between

Ms H McCarthyClaimant

Right Choice Services LtdRespondent

Before

Employment Judge Quill; Mr W Dykes; Mr D Wharton

In person for claimant

Date 18 January 2021

JUDGMENT

[1]The complaint of detriment because of pregnancy contrary to s47C of the Employment Rights Act 1996 (“ERA") succeeds.

[2]The complaint of automatic unfair constructive dismissal contrary to s99 ERA succeeds.

[3]The complaint of pregnancy discrimination as defined by s18 Equality Act 2010 (“EqA”) succeeds

[4]The complaint of direct sex discrimination contrary to ss13 and 39 EqA fails.

[5]There will be a remedy hearing, by video, on Thursday 27 May 2021 from 10am to 1pm. JUDGMENT having been sent to the parties on 18 February 2021 and written reasons having been requested on 20 January 2021 in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided.

REASONS

[1]At this hearing we had a bundle of 115 pages. We took into account the additional pages sent by email by the claimant. The hearing was conducted by video. It was a two day hearing. Initially the claimant was not able to access the electronic version of the bundle which the respondent had circulated but by the time we commenced evidence at 12 o clock on Day 1 the claimant had been able to access that bundle electronically and she also had the witness statements.

[2]There were three witnesses in total. On the claimant’s side, the claimant gave evidence herself. On the respondent’s side, the witnesses were: Mr Toska and Mr Terziu. Each witness had prepared a written statement which they attested to and we took as their evidence and they each answered questions from the other side and from the panel. The witness evidence was concluded on the first day and we heard submissions at the start of Day 2 and then commenced our deliberations and we gave our liability decision and oral reasons just after 3 o clock on Day 2.

[3]The claims and issues are as decided at a preliminary hearing on 27 March 2020 and they are at page 28 onwards of the hearing bundle. The liability issues were (retaining the original numbering): Claimant’s status 6.1 Was the claimant an “employee” in accordance with s230 ERA so as to be entitled to bring her claims under s47C and s99 of the ERA? Detriment complaints — s47C ERA 7.1 Was the claimant subjected to the following alleged detriments by the employer for a reason related to her pregnancy:7.1.1 the respondent refused to allow the claimant to continue to work towards becoming a manager;

7.1.2 the respondent, having agreed to the claimant undertaking an NVQ level 3 Childcare qualification, did not progress this any further despite previously telling the claimant that funding had been secured;

7.1.3 the respondent removed the claimant from a full time role based at YYY Great Cambridge Road on 30 April 2019 because of hospital appointments the claimant had to attend due to her pregnancy;

7.1.4 After 30 April 2019 the respondent only offered the claimant work when other staff were unavailable;

7.1.5 Shortly after 30 April 2019 being posted to a site in Basildon, Essex some 26 miles from the claimant’s hospital in Newham;

7.1.6 Forcing the claimant to resign on 1 May 2019 because of the above treatment. Automatic Unfair Dismissal — section 99 ERA

8.1 Did the respondent conduct itself in a way that breached the implied term of mutual trust and conﬁdence (for the some or all of the reasons alleged in paragraph 7.1.1 to 7.1.5 above)?

8.2 if so, was reason or principal reason for that conduct related to the claimant's pregnancy?

8.3 If so:8.3.1 Did the claimant resign on 1 May 2019 because of the respondent’s breach of contract?

8.3.2 Did the claimant acquiesce to the breach or affirm the contract following any breach by the respondent?

8.4 Because the claimant does not have sufficient qualifying service (two years or more) the burden is on her to show jurisdiction and therefore to prove that the reason or if more than one the principal reason for the dismissal was related to her Unfair dismissal - adjustment to remedy

9.1 if the dismissal was unfair, on the balance of probabilities did the claimant contribute to the dismissal by blameworthy and/or culpable conduct?

9.2 Does the respondent prove that if it had adopted a fair procedure the claimant would have been fairly dismissed in any event? And/or to what extent and when? Section 18: Discrimination because of pregnancy and maternity

10.1 Has the respondent subjected the claimant to the following unfavourable treatment falling within section 39 Equality Act, namely:10.1.1 the respondent refused to allow the claimant to continue to work towards becoming a manager;

10.1.2 the respondent, having agreed to the claimant undertaking an NVQ level 3 Childcare qualiﬁcation, did not progress this any further despite previously telling the claimant that funding had been secured;

10.1.3 the respondent removed the claimant from a full time role based at YYY Great Cambridge Road on 30 April 2019 because of hospital appointments the claimant had to attend due to her

10.1.4 After 30 April 2019 the respondent only offered the claimant work when other staff were unavailable;

10.1.5 Shortly after 30 April 2019 being posted to a site in Basildon, Essex some 26 miles from the claimant’s hospital in Newham;

10.1.6 Forcing the claimant to resign on 1 May 2019 because of the above treatment.

10.2 If so, was any proven treatment because of the claimant’s pregnancy or because of illness suffered by the claimant as a result of it? No comparator is needed. Section 13: Direct discrimination because of sex

11.1 Has the respondent subjected the claimant to the treatment listed in paragraphs 10.1.1 to 10.1.6 above?

11.2 If so, has the respondent treated the claimant as alleged less favourably than it treated or would have treated a comparator? The claimant relies on a hypothetical male comparator.

11.3 if so, has the claimant proved primary facts from which the tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic?

11.4 lf so, what is the respondent’s explanation? Does it prove a non-discriminatory reason for any proven treatment? Time/limitation issues

12.1 The claim form was presented on 12 July 2019. Accordingly, and bearing in mind the effects of ACAS early conciliation (which commenced on 5 June 2019 and a certificate being issued on 5 July 2019), any act or omission which took place before 6 March 2019 is potentially out of time, so that the tribunal may not have jurisdiction. Section 45C ERA claim

12.2 Does the claimant prove that the act or failure to act to which any complaint relates is part of a series of similar acts or failures the last of which is in time?

12.3 If not, was it not reasonably practicable for the claimant to present her claim in time and if so, did the claimant present her claim within a reasonable period thereafter? Section 13 and 18 EqA claims

12.4 Does the claimant prove that there was conduct extending over a period which is to be treated as done at the end of the period? ls such conduct accordingly in time?

12.5 Was any complaint presented within such other period as the employment tribunal considers just and equitable?

The facts

[4]The claimant had previously had some experience working with people with special needs including autism, albeit not young people.

[5]In around September 2018, her brother-in-law introduced her and Mr Arjan Terziu to each other. Mr Terziu is the Managing Director of the respondent. Following discussions, it was agreed that the claimant would start doing some shifts for the respondent. The claimant had an existing job and she stated that she would only leave her existing job if it was worth her while. Mr Terziu said that a job with the respondent would be full time provided she successfully passed probation.

[6]In September 2018, the parties did not sign any written contract of employment or any other written contract. A job description was given to the claimant and she signed it on 6 September 2018. By signing it she made the following declaration which is at page 54 of the bundle. The declaration said: I Helen McCarthy acknowledge receipt of the above job description as a description of the daily responsibilities and duties of a care officer. I fully understand their meanings and implications of the above duties and will do my upmost to adhere to the best of my capabilities if my application is successful. I also understand this is not a written contract but purely a job description.

[7]The title of the post was Support Worker and the document said that the Support Worker reported to Support Manager. Amongst other things the duties were:  to ensure the provision of a safe, secure and homely environment  to implement care plans for each service user  to attend meetings and conferences intended to assess and redefine care plans  to follow agreed procedures with regard to medication and health care  to follow agreed procedures with regard to service users who are absent from home without authority.  to undertake allocated tasks in the emotional, physical and psychological care of the service users to the highest possible standard.  to oversee the purchase of clothes where necessary  to arrange for food to be provided at appropriate intervals  to observe The Health and Safety Policy at the home  to receive and make use of regular supervision  to attend meetings of the staff group  to work with supervisors and managers to maximise strengths and minimise weaknesses at both individual and team level  to make accurate records concerning each service user and complete other general records and documentation in relation to operation and work of the home  to ensure that all records are stored using accepted and agreed format systems and procedures having regard to confidentiality of the records  to undertake sleeping duties as necessary  to carry out all the above duties in a manner which demonstrates commitment to anti-racism and  to undertake all other reasonable duties within the context of provision of service to people with disabilities at the request of the team Leader or Registered and/or Deputy Manager.

[8]On 6 September 2018, the claimant also completed a “Personal Development Plan”. On the plan, the “Line Manager” was stated to be Mr Terziu. Under the heading, “objectives”, the document stated that the plan was to “outline the short to long term development of each individual based on objectives for the next 12 months”. It stated that: “Some of the identified objectives will be completed successfully within a 12 month period; however, others may take longer than the specified time and will be reviewed annually with your line Manager.”

[9]There were questions about what skills and experience the worker might require and what training, if any, the respondent could provide. Under the heading “Action Plan” individual work objectives were set out and these included: ESOL classes; report any concerns to senior staff; write in the message book. It said that the target dates to meet these objectives was “two months and ongoing”.

[10]Then under 8.2 “Training and Development requirements” was listed:10.1 ESOL classes enrolment; Helen to find a course for English classes. (The target date was “Helen within two months”);

10.2 Child protection; Fire safety; Safeguarding; First Aid and some online courses; (The target date was “within one month Arjan to enrol”)

10.3 NVQ3 in Children and Young Persons. (The target date was “Right Choice to fund and provide details of course Helen to start after January 19”.)

[11]Generally, for support workers, the respondent prefers them to have Level 3 NVQ at the time of appointment. However, it also hires support workers who do not yet have that qualification. In those cases, the respondent supports them to gain that qualification and that is what it agreed to do in the claimant’s case.

[12]The documents in the bundle do not show what efforts, if any, the respondent made to put the claimant in touch with any course provider. There is a letter from a course provider which says that the course provider attempted to contact the claimant without success. That letter is dated 28 February 2019, but it is not clear when the respondent received it. The letter does not specify what postal address or what phone number the course provider had been given by the respondent in order to try to contact the claimant. The claimant is not aware of any attempts to contact her by that course provider. There were no discussions between respondent and claimant about the alleged inability of the course provider to contact her. There are no notes or contemporaneous documents in the bundle to show that the respondent ever spoke to the claimant or tried to speak to the claimant about the fact that the course provider had said that it was unable to contact her.

[13]We accept that the claimant’s account that she was not spoken to by the respondent in relation to the NVQ course. Our finding is that if the respondent had intended to retain the claimant then it would have progressed arrangements for the claimant (as it did for other support workers) to obtain the NVQ3 qualification. That is what the Respondent intended and agreed as of completing the 6 September 2018 plan. Our inference therefore is that at some stage later than the 6 September 2018, the respondent decided that it was not going to seek to ensure that the claimant obtained the NVQ qualification, and our inference from that the Respondent decided that it was not expecting the claimant to remain as a support worker in the long term.

[14]Our finding is that the training that the respondent agreed to provide to the claimant was training for the Support Worker role. There was no specific agreement that the respondent would train her to be a Manager. A managerial role would have required the claimant to gain further qualifications and experience which would have taken several years. While the claimant may have aspired to achieve that, and while it might have happened in due course, it was not something that the respondent had guaranteed to her or formally agreed with her, prior to the end of her employment.

[15]The claimant was told by Mr Terziu, in September 2018, that Lincoln Crescent was to be her unit and that she would be working there regularly. She was told that there would be a probation period.

[16]From September 2018 to December 2018, the claimant worked at Lincoln Crescent, a unit operated by the respondent. There were typically four young people at the unit. The exact number varied from time to time depending on which people had been placed with the respondent by local authorities.

[17]On Mondays to Fridays during this period, the agreed time for the claimant to report for work was 8am. However, sometimes she would be flexible and would agree to start earlier on a particular day, if the person on night shift wanted to leave early. The agreed time for the claimant to finish was at 4pm each day. However, sometimes the person who was due to take over from her was late arriving and so she worked later than 4pm on those days. During each shift, the claimant was the only worker on duty at the unit. She arrived in the morning to take over from the worker on the night shift and she stayed in the afternoon until she was relieved by the worker who was doing the next shift. She could not leave the unit until a replacement for her arrived.

[18]The arrangement between respondent and claimant was that she would work in Lincoln Crescent each day Monday to Friday between approximately 8am and 4pm. If she was not going to be available then she had to contact the respondent to say so. Unless the claimant contacted him, Mr Terziu expected the claimant to turn up at Lincoln Crescent at the allocated time each day Monday to Friday. Mr Terziu and the respondent did not contact the claimant to tell her that he wanted to offer her a shift or to ask her if she was available for a shift Monday to Friday. The arrangements for the hours which she would work was made in September (orally) and the arrangements for the hours of work (Monday to Friday) and the work location, Lincoln Crescent, (Monday to Friday) did not change during the probation period.

[19]The claimant had some leave in approximately November 2018 by agreement with the respondent. The Respondent paid her for that leave period.

[20]On 15 December 2018 Mr Terziu supplied the claimant with a letter which had the heading Probation Period. The letter said that Mr Terziu was happy to inform the claimant that she had successfully completed the probation period and “would like to welcome you as a permanent member of staff”. The letter said that the claimant had demonstrated that she was capable of completing the role of Support Worker. In other words, the respondent was satisfied that she could work to the job description which had been given to her in September, notwithstanding any later concerns that were raised during this hearing in relation to the claimant’s ability to complete paperwork.

[21]At this time, December, the claimant was given a written contract and the claimant and the respondent each signed it. The contract was headed Support Worker Zero Hours Contract. The contract is in the bundle at page 45. Clause 1 refers to status of the agreement. It says that the claimant is a casual worker, it says it is “NOT an employment contract” (the bolding and capitalisation are in the original). It says it does not confer “any employment rights (other than those to which workers are entitled)” and does not create any obligation on the respondent to provide work to the claimant. It says that by entering into the contract, the claimant confirms her understanding that the respondent makes no promise or guarantee of a minimum number of hours of work. It states that the claimant will work on a flexible as required basis and that there is no mutuality of obligation between the parties when not performing work. Clause 2 refers to the job description, Clause 3 says that there is a discretion as to offering work and that the respondent is neither under an obligation to provide work to the claimant at any time nor under an obligation to explain why work has not been offered. Clause 4 says that there is no presumption of continuity and each offer of work is entirely separate and severable engagement.

[22]Clause 6 has the heading “place of work” and states as follows. The actual street number is specified in the document, but we have redacted it: During each engagement your principal place of work will be XXX Lincoln Crescent, Enfield E1 1JZ. You may from time to time be asked by RCS to work in alternative location.

[23]Pay in the contract refers to an hourly rate of £8 per hour. Clause 8 refers to statutory leave. It says that the amount of holiday, or statutory leave, will be 28 days (which, we note, is consistent with the statutory entitlement for a worker who works 5 days per week). Under the heading Working Hours it says the working hours will vary according to the workload and could include some weekends: You will be expected to be available for work within these hours although the organisation cannot guarantee the number of hours that will be offered. There is a requirement to complete a timesheet.

[24]Under Clause 10, Sickness: If you are not able to come in to work because of sickness you must inform the designated manager on your first day of absence. It then goes on to say, If the absence lasts for more than 7 calendar days there is a requirement to provide a medical certificate signed by a doctor. It then refers to the possibility of statutory sick pay being available.

[25]Under the Termination Clause it stated that there is no obligation on either side to give notice to the other as such, just to inform the other that the contract is being terminated. It says that on termination the claimant would not be entitled to any further payments from the respondent other than outstanding salary and holiday pay.

[26]Clause 12 refers to the Code of Conduct which is said to apply to “employees, workers and volunteers” and that the claimant is expected to observe that Code of Conduct.

[27]There are clauses in relation to Equal Opportunity, Health and Safety at Work, Confidentiality and Data Protection.

[28]Clause 17, is a clause which is headed Totality of Terms and states that: This contract is intended to fully reflect the intentions and expectations of both parties as to our future dealings and in the event of any dispute regarding your engagement as a casual worker by RCS, it shall be regarded as a true accurate and exhaustive record of the terms on which we have agreed to enter into a casual work relationship. Any variation to this contract will only be valid where it is recorded in writing and signed by both parties.

[29]On receipt of this document, before signing it, the claimant asked Mr Terziu about the hours and she said that she expected to be full time. Mr Terziu confirmed that she would remain full time. The claimant signed the document, relying on Mr Terziu’s comments. The Claimant and Mr Terziu each signed and dated the document on 15 December 2018.

[30]In the immediate period after the completion of claimant’s probation, all working arrangements continued as before. In other words, each day (Monday to Friday) the claimant continued to turn up to work at Lincoln Crescent and started around 8am (sometimes earlier) and finished around 4pm (sometimes later).

[31]The Claimant also occasionally worked on Saturdays on an ad hoc basis. If she was offered, and accepted, work on a Saturday then that work could be at a different unit, and was not always at Lincoln Crescent.

[32]We noted the series of text messages in the bundle. Both parties referred to these messages in their oral evidence. The earliest messages provided to us were from around 1 February 2019 and then the latest from around 1 May 2019. It is likely that there were exchanges of text messages between the parties from around September 2018 onwards but those were not placed into the bundle.

[33]On Friday 1 February 2019, the claimant sent a message to Mr Terziu which said that unless he could increase her salary then that day would be her last day she would finish her shift that day. Mr Terziu responded to say: You need to give one weeks notice at least but since you have made your mind up that’s fine I will issue a P45 at the end of the month.

[34]The claimant replied to say that she would, in that case, work the following week and that the following Friday (so that would be 8 February) would therefore be her last day. Mr Terziu replied to say that he understood and it was better for the claimant to move on.

[35]On around 7 February 2019 the claimant sent a message to say that she was reconsidering and that she would be willing to stay on.

[36]On Friday 8 February, Mr Terziu told the claimant to come into work the following Monday and they would talk. In other words, to come to Lincoln Crescent the following Monday. It was then agreed that the claimant would carry on working for the respondent. She did not cease to be an employee around 8 February 2019, even briefly. There was no gap at this time in the working relationship and she continued working with Lincoln Crescent being her place of work.

[37]In February 2019, towards the end of the month, the claimant found out that she was pregnant. There was a short period of time during which the claimant knew that she was pregnant but before she told the respondent. The claimant told Mr Terziu about the pregnancy in March 2019. She told him about the pregnancy because she needed to take time off to go to a particular appointment. Neither the claimant nor Mr Terziu are sure of the exact date on which she told him about the pregnancy, we note from the documents that the claimant told Mr Terziu that she had a doctor’s appointment on 1 March 2019 and so it is possible that that is the appointment in question. Alternatively, as per page 97 of the bundle, there was a hospital appointment on 3 March 2019 and so perhaps that is the event which led the claimant to inform the respondent about her pregnancy. Our finding is that the latest date by which the respondent knew about the pregnancy is 3 March 2019.

[38]There is an assertion in the amended response that the respondent (Mr Terziu in particular) was told about the pregnancy on 8 February 2019 during the meeting at which the parties agreed that the claimant’s proposed resignation would be retracted. We reject that assertion. It may have been a typographical error. In any event, it is inconsistent with Mr Terziu’s evidence to the tribunal. Our finding is that it was on either 1, 2 or 3 March 2019 that the claimant informed the respondent that she was pregnant. To the extent that the Claimant suggests that the date might have been earlier than 1 March 2019, she has not proven that to our satisfaction.

[39]Around 19 February 2019, Mr Terziu asked the claimant if she would work in Basildon the following weekend at a unit the respondent had there. Because of the extra costs in travelling Mr Terziu agreed to pay extra for shifts at that location.

[40]On 21 February 2019 there was an exchange of messages. Responding to a query form the claimant, Mr Terziu stated that the respondent would pay the claimant in relation to some particular absences that she had had that month. This was before the respondent knew the claimant was pregnant.

[41]In December 2018, the claimant worked 159 hours at Lincoln Crescent, 7 hours elsewhere. In January 2019, she worked 175 hours at Lincoln Crescent and no hours elsewhere. In February 2019, the claimant worked at Lincoln Crescent for the first half of the month and then elsewhere for the remainder of the month. In the second half of February she worked several week days away from Lincoln Crescent. Other than a 7 hour shift in December, this was the first time that this had happened on a week day. In March 2019, she worked 168 hours at Lincoln Crescent and did not work elsewhere.

[42]On Monday 25 March 2019, the claimant sent a text message to Mr Terziu, she referred to a particular resident. The claimant said that because she was pregnant she did not think that it would be good for her to be in close proximity to that particular resident. The claimant said in the message that she believed that the resident was suggesting to her that she needed to lock herself in the office and that the resident was doing this because he was in a bad mood. The claimant asked if the respondent could arrange for somebody else to cover her shift for that day. Mr Terziu replied by stating that he would try to get somebody to cover the shift. He added that if the claimant could not do the job then “that’s fine”. He said that it’s not only this particular resident but “every unit we have difficult kids”. Mr Terziu said he could get another member of staff to cover the claimant’s shifts but “we have no other unit to put you”. As it happened, Mr Terziu did arrange for somebody else to come that day. The claimant waited outside the unit until she was relieved, and she was in tears when the replacement arrived.

[43]The claimant’s communications on 25 March 2019 were not a resignation from the respondent’s employment and they were not a refusal to carry on doing work for the respondent. Mr Terziu interpreted the claimant’s remarks as meaning that she did not wish to work at that particular unit, Lincoln Crescent, any longer and that was why he said to her that there were no other units available. The claimant then asked him to look for other units and he agreed to do so.

[44]On 26 March 2019, the claimant asked by text message to remain at Lincoln Crescent. However, Mr Terziu stated that she would move to another unit instead. He said that this was part of a general reorganisation. Based on her understanding of what she was told at the time, the claimant believed that the different unit to which she was moved after Lincoln Crescent, Great Cambridge Road, would be her new permanent unit. She therefore did not continue to push her request to remain at Lincoln Crescent.

[45]The claimant was aware that workers were generally allocated to particular units. Because of that knowledge, when she was told that there was to be a “reorganisation”, she believed that that meant that there were to be a new set of permanent allocations for each worker between the various units. Mr Terziu did not state otherwise. Mr Terziu did not state, and the Claimant did not believe, that the reorganisation might mean that she would become a roving worker, without any regular fixed place of work, or hours of work.

[46]In April the claimant started working at the new unit in Great Cambridge Road. As far as the claimant was concerned this was her new permanent unit and she intended to stay there permanently until the start of her maternity leave.

[47]In April, the claimant had approximately two weeks at short notice due to family circumstances. This time off was agreed by Mr Terziu and it was paid time off and it was taken as part of her annual leave entitlement.

[48]During the claimant’s pregnancy, she had hospital appointments approximately once every two weeks or thereabouts on average. They were taken when needed and not necessarily regularly scheduled so the actual interval between appointments varied. The respondent paid the claimant for her to take the time off to go to these appointments.

[49]Mr Terziu’s evidence to the tribunal was that - for Great Cambridge Road – around April 2019, an existing worker was appointed to be a manager. That person was going to manage two units, Talbot Road and Great Cambridge Road and they were going to work two or three days a week at Great Cambridge Road. Additionally, Mr Terziu stated that, before the claimant had left Lincoln Crescent, he had started the process of recruiting a support worker for Great Cambridge Road. That person had, Mr Terziu said, been given a contract which specified that they would work in Great Cambridge Road only. In other words, according to Mr Terziu, that worker could not be allocated to Lincoln Crescent or to any of the other units operated by the respondent. There were no documents placed into the bundle or before us to support these contentions and no advert was supplied to us and no copy of a contract with any other worker.

[50]In Mr Terziu’s witness statement at paragraph 19 he states as follows. The actual street number is specified but we have redacted it. The claimant informed me she would like to continue to work at YYY Great Cambridge Road on a permanent basis. This was rejected because of qualified manager had been recruited to work at the unit permanently.

[51]In the amended grounds of response, it states at paragraph 34 that: The claimant informed the respondent she like to continue to work at YYY Great Cambridge Road on a permanent basis. This was rejected by the respondent because a qualified manager had been recruited to work at the unit permanently. The respondent happily allowed the claimant to attend her appointments as and when required and had no issue with this. It is therefore denied that the claimant was removed for the role based at YYY Great Cambridge Road because of any hospital appointments

[52]Mr Toska’s evidence to the tribunal that Mr Terziu had told him that a post for a manager had been advertised and recruited to and that was why the claimant could not stay at Great Cambridge Road. In submissions it was put forward that the claimant’s inability to do written reports on the residents was part of the reason that another worker had to take her place at Great Cambridge Road.

[53]In April 2019, following the claimant’s return from annual leave the claimant expected to return to the Great Cambridge Road unit and to remain there. However, on 30 April she was called to a meeting she was not told in advance what the meeting was to be about. Mr Terziu was present and he had also arranged for Mr Toska to be present. Mr Toska is a Consultant for Right Choice and he was at the time also an Independent Reviewing Officer for Looked After Children at Haringey Council. Mr Toska had been a consultant for the respondent for several years and he advised them on legislation and other matters and including providing advice on staffing matters. The reason Mr Terziu asked for Mr Toska to be present was that Mr Terziu did not see this as a routine meeting with a member of staff. Mr Terziu believed that the meeting was potentially going to be a controversial one. Mr Terziu knew that he was going to be giving information to the claimant and he anticipated that she would not like what he had to say.

[54]Mr Terziu was aware that the claimant was pregnant and that she had left the Lincoln Crescent unit, which (we have found) had been her permanent unit, for reasons connected to her pregnancy, namely the fact that she did not feel safe at that particular unit while pregnant. The information which Mr Terziu intended to give to the claimant on 30 April (and which he did give) was that she would not be permanently based at the Great Cambridge Road location. This, 30 April, was the first time that the claimant was told that Great Cambridge Road was not a new permanent location. The reason that she was told, on 30 April, that Greact Cambridge Road was not a permanent place of work is that Mr Terziu had formed the view that the claimant could not be relied upon to turn up every day to any unit and he therefore sought to change her job from being a worker allocated to a specific unit (originally Lincoln Crescent and, from the start of April, Great Cambridge Road) to being a floating support worker.

[55]The claimant was told on 30 April that if any of the regular workers were absent then she would potentially be offered shifts to cover that absence. We reject the Respondent’s assertion that the claimant had already been told at the start of April that she was only being temporarily placed at Great Cambridge Road. The respondent has offered different explanations at different times for why the claimant could not remain at Great Cambridge Road and there is a lack of corroborating documents for any of the different explanations. Our inference is that something changed during April and Mr Terziu changed his mind; at start of April, he was willing for her to work permanently at Great Cambridge Road, but by the end of April he had decided to convert the claimant to a worker who had no permanent unit and no regular hours Monday to Friday. He wanted Mr Toska to be present when he told the Claimant that these were going to be the arrangements; he had not sought Mr Toska’s presence for any meeting when the Claimant was allocated to Great Cambridge Road at the start of April.

[56]On 1 May 2019, in a text message exchange with the claimant, Mr Terziu said that on 30 April he had offered the claimant alternatives that would have given her less responsibility and more flexibility because she was pregnant but that she had refused those offers.

[57]On 30 April, the claimant was told that the respondent was intending to open a new unit. There was, however, no detailed discussion with the claimant about the new unit that day. The situation with the new unit was that it would first have to be approved by the local authorities before any placement of residents could commence there. This had not happened by 30 April. After approval was given then residents would then start being placed. In actual fact, residents began to be placed from mid-May but that was not information which was given to the claimant on 30 April and, indeed, it was not information which the respondent itself had on 30 April. The claimant was not given any particular timescale for when the unit would open. She was not told she could start immediately. She was not told that she could start there on any specific date. She was not told that she could work there before the unit opened for residents. The claimant was left with the impression that, at best, she was being told that potentially she could commence work at the new unit on some unspecified date in the future but, in the meantime, she would have no regular work.

[58]The claimant’s perception of the meeting was that she was being told (for the first time) that her regular fixed hours, Monday to Friday, 8am to 4pm approximately, were being removed from her and that she was being told that the new situation was that she had no guaranteed hours, no fixed location of work and no guaranteed salary at all. The claimant’s perception was also that the reason for this proposed new arrangement was that the respondent was unhappy about her absences for hospital appointments.

[59]The claimant resigned because of the removal of her regular hours and the fact that she believed that this was being done because of her pregnancy.

[60]Mr Terziu’s claim that the personal development plan was produced only after the claimant asked for more money is rejected. The personal development plan was produced at the very start of the claimant’s engagement with the respondent, in September 2018.

[61]We also note that his written witness statement suggests a chronology about the claimant’s proposed February 2019 resignation and a suggestion is made that the Personal Development Plan was produced in response to that. That is not correct and we note that Mr Terziu suggests that was simply a typing error in his written statement.

[62]We reject the account that Mr Terziu gave in paragraph 7 of his statement that the only reason he told the claimant on 1 February 2019 that she needed to give a weeks’ notice was that he was concerned for the claimant and that he did not want her to be without funds for that week. This is inherently implausible and is not supported by the contemporaneous text messages. Our finding is that the reason Mr Terziu informed the claimant that she had to give one weeks’ notice was that as far as the respondent was concerned the claimant was under an ongoing obligation to report for work each day at Lincoln Crescent unless and until her contract was terminated.

The law

[63]The law that we have to take into account is as follows.

[64]In relation to interpretation of contracts, outside the field of employment law, the ability of courts and tribunals to look behind the terms of a signed contract is limited to situations where the parties have a common intention to mislead as to the true nature of the rights and obligations under the contract. In other words, where the contract is a sham in the sense described in Snook v London and West Riding Investment Limited. However, in the field of employment law a claimant does not necessarily have to demonstrate a common intention to mislead in that Snook sense.

[65]In the field of employment law potentially there might have been unequal bargaining power between the claimant and the alleged employer and it might be the latter, the alleged employer, who decided upon all the terms of the written documents. This was a principle addressed by the Supreme Court in Autoclenz Limited v Belcher R

[2011] ICR 1157

[66]In Autoclenz the Supreme Court approved an approach taken in earlier cases (notably by the Court of Appeal in Protectacoat Firthglow Ltd v Szilagyi

[2009] ICR 835

). An employment tribunal faced with an allegation that a written document is a sham must consider whether or not the words of the written contract represent the true intentions or expectations of the parties as to their agreement and contractual obligations. This review does not only apply to the inception of the contract but at any later stage where the evidence shows that the parties have either expressly or impliedly varied the agreement between them.

[67]Determining the true intentions of the parties does not mean that an employment tribunal should base its decision on what one (or each) party thought privately to itself. Rather, the exercise requires the employment tribunal to determine what was actually agreed in reality between the parties.

[68]In relation to employment status, s230 of Employment Rights Act says, in part:(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

[69]In other words, for someone to be an employee there must first be a finding that they have a contract of some description with the alleged employer. If there is a contract, then it is necessary to go on to decide if that contract is a contract of employment. On the other hand, if there is no contract at all between the parties then it follows that there is no contract of employment and the individual is not an employee.

[70]Section 230(3) provides two limbs by which a person can be found to be a worker for the purposes of the Employment Rights Act. “Limb a” is that they have a contract of employment with the alleged employer and “Limb b” is that they have any other contract which fulfils the remaining parts of that definition. In this case it was conceded that the claimant was a worker. In other words, it was conceded that the claimant was somebody who had undertaken to do or perform, personally, any work or services. The Respondent did not concede that the Claimant fell within “Limb a”.

[71]Section 83(2)(a) of the Equality Act 2010 states: “Employment” means employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.

[72]Again, there must be a contract (and that includes – of course - oral contracts and/or an implied contracts, as well as written and express contracts). If there is no contract at all then the relationship cannot be one which falls within section 83(2)(a). Provided there is a contract, then it is necessary to consider if it meets the remaining parts of the definition.

[73]For a contract to be a contract of employment, then - at the very least - the contract must provide for the three irreducible elements of control, mutuality of obligation and personal performance without which no contract of employment can exist, see Carmichael v National Power Plc

[1999] ICR1226

[74]The fact that a person works only casually and intermittently for an employer may, depending on the facts, justify an inference that when she does do work she is providing services as an independent contractor rather than as an employee. On the other hand, even someone who only works intermittently might be deemed to be an employee for the periods of work, provided the contract which governs those periods meets the criteria. Furthermore, in some circumstances, depending on analysis of the facts, and the agreement between the parties, the tribunal might be satisfied that there is a global or umbrella contract of employment that continues to exist during periods between work assignments.

[75]In other words, the tribunal has to decide if the requirements for mutuality of obligation and the necessary degree of control and the obligation to do the work personally:75.1 Are not met at all,

75.2 Are met, but only for each successive assignment and not in the gap between such period of work

75.3 Are met even during periods between assignments during which the employee is not actually performing work, and potentially (therefore) not being paid

[76]Section 47(c) of the Employment Rights Act has the heading Leave for Family and Domestic reasons. An employee has the right not to be subjected to any detriment by any act or any deliberate failure to act by the employer done for a prescribed reason and a prescribed reason is one prescribed by regulations. The relevant regulations are the Maternity and Parental Leave Regulations 1999 (“MAPLE”).

[77]The detriment provisions in section 47(c) run parallel to the provisions of the Equality Act. A woman who is subjected to detrimental treatment because of pregnancy or maternity leave can claim pregnancy and maternity discrimination under section 18 of the Equality Act as well as bringing a claim under section 47(c) of the Employment Rights Act.

[78]Whether particular acts or omissions amount to a detriment is a finding of fact for the employment tribunal to make. A detriment is something that an employee reasonably perceives as a disadvantage to them and there is no requirement for there to be any financial loss associated with that. The obligation is on the claimant to show that there was a detriment, but on the respondent to show the ground on which any act was done. (See s48(2) ERA).

[79]As per section 48 ERA, a complaint of a breach of section 47C must be presented to the employment tribunal before the end of three months beginning with the date of the act (or failure to act) or where there is a series of acts or failures, the last of them. Tribunals may hear cases that are presented out of time if the tribunal decides that it was not reasonably practicable for the complaint to have been submitted within the time limit.

[80]The Maternity and Parental Leave Regulations 1999 are relevant. As per Regulation 19:(1) An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2).

(2) The reasons referred to in paragraph (1) are that the employee– (a) is pregnant;

[81]Regulation 19(4) excludes dismissals from the definition of detriment.

[82]Where a tribunal finds that a complaint under section 47(c) is well founded then remedies are as defined in section 49 of the Employment Rights Act. Compensation will be an amount that the tribunal thinks is just and equitable in all the circumstances having regard to the infringement.

[83]In relation to automatic unfair dismissal, dismissal is defined in section 95 of the Employment Rights Act and section 95(1)(c) states that there is a dismissal when the employee terminates the contract without notice in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct. This is the type of dismissal commonly referred to as “constructive dismissal”.

[84]For an employer’s conduct to give rise to a successful constructive dismissal claim the conduct must involve a repudiatory breach of contract. In order to prove constructive dismissal, the employee must establish that there was a fundamental breach on the part of the employer and the employer’s breach caused the employee to resign and the employee did not delay too long before resigning thus affirming the contract and losing the right to claim constructive dismissal.

[85]A constructive dismissal is not necessarily an unfair one. In a case where the employee had two years’ service and is claiming ordinary unfair dismissal then the employer might be able to show that the reasons for its treatment of the employee were reasons which fell within the potentially fair category defined in section 98 of the Employment Rights Act.

[86]On the other hand, in a case such as this one where the employee is alleging automatic unfair dismissal then the employee might fail to establish that the reason for the conduct or the principal reason, if more than one, was as set out in the relevant sections of the section of the Employment Rights Act.

[87]The implied term of trust and confidence as noted in Malik v BCCI

[1997] ICR 606

that term requires that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. A breach of this fundamental term will not occur simply because the employee or employer subjectively feels that such a breach has occurred. The legal test requires the tribunal to view the circumstances objectively. In other words, from the perspective of a reasonable person who was in the claimant’s or respondent’s position.

[88]Section 99 of the Employment Rights Act is part of part 10 and it covers dismissal, the heading is Leave for Family Reasons. Section 99(1): An employee who is dismissed shall be regarded for the purposes of this part is unfairly dismissed if the reason, or principal reason, for dismissal is of a prescribed kind or the dismissal takes place in prescribed circumstances.

[89]Regulation 20 of MAPLE states, in part: (1) An employee who is dismissed is entitled under s.99 of the 1996 Act to be regarded for the purposes of Part 10 of that Act as unfairly dismissed if: (a) The reason or principal reason for the dismissal is of a kind specified in paragraph 3 or

[90]In paragraph 3, it is mentioned: (3) The kinds of reason referred to in paragraph (1) and (2) are reasons connected with– (a) the pregnancy of the employee;

[91]Since the claimant in this case has less than two years’ service the onus is on her to prove that the reason for her dismissal was the automatically unfair reason in this case, pregnancy.

[92]Turning now to the Equality Act complaints. Time limits are dealt with in section 123 of the Equality Act 2010. (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

[93]Subject to the early conciliation extensions a complaint within the Act has to be brought within a period of three months starting on the date of the act to which the complaint elates or such other period as the tribunal thinks just and equitable.

[94]Just referring briefly to early conciliation. In this case the claim was issued on 12 July and early conciliation started on 5 June and finished on 5 July. Therefore, the claim was issued less than one month after the end of early conciliation. Because of the way early conciliation works that means claims relating to any acts or omissions alleged to have occurred on or after 6 March 2019 are within the time limit set out for the Equality Act claims. However, subject to section 123(3)(a) allegations which relate to incidents on or before 5 March 2019 are out of time, although that of course is subject to the tribunal’s ability as per sub section (1)(b) to extend time.

[95]When applying section 123(3)(a) of the Equality Act the tribunal must have regard to the guidance in Commissioner of Police of the Metropolis v Hendricks and Lyfar v Brighton and Hove University Hospitals Trust. Applying that guidance, the Court of Appeal has noted that in considering whether separate incidents form part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in these incidents. That’s Aziz v FDA

[2010] EWCA Civ 304

[96]The tribunal must consider all relevant circumstances and decide whether there was an act extending over a period or else there was a succession of unconnected or isolated specific acts. If it is the latter then time runs from the date when each specific act was committed.

[97]In considering whether to extend time the tribunal should have regard to the fact that time limits are relatively short. The tribunal has a broad discretion to extend time when there is a good reason for so doing. Parliament has chosen to give the tribunal the widest possible discretion unlike section 33 of the Limitation Act 1980, the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard. It is wrong to interpret section 123 as if it does contain such a list. A tribunal can certainly consider the list of factors in section 33 of the Limitation Act if it chooses to do so but when doing so should only treat those factors as a guide and not something which restricts the tribunal’s discretion. The factors that might be considered include the length of and reasons for the delay on the part of the claimant, the extent to which because of the delay, evidence is likely to be less cogent than if the claim had been brought in time and the conduct of the respondent after the course of action arose.

[98]In relation to the Equality Act. Section 136 of the Equality Act deals with burden of proof that is applicable to all of the Equality Act claims in this action.

[99]Section 136 states in part:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But, sub section 2 does not apply if A shows that A did not contravene the provision.

[100]Section 136 requires a two-stage approach. The first stage the tribunal considers whether the claimant has proved facts on the balance of probabilities form which the tribunal could conclude in the absence of an adequate explanation from the respondent that the contravention has occurred. At this stage it would not be sufficient for the claimant to simply prove that what she alleges happened did in fact occur. There has to be some evidential basis upon which the tribunal could reasonably infer that proven facts did amount to a contravention. That being said, the tribunal can, as always, look at all the relevant facts and circumstances and make reasonable inferences when appropriate from the primary facts that were proven.

[101]If the claimant succeeds at the first stage then that means that the burden of proof shifts to the respondent and the claim must be upheld unless the respondent proves that the contravention did not in fact occur.

[102]Where the claimant fails to prove on the balance of probabilities that particular alleged incident did happen then complaints on that alleged incident fails. Section 136 does not require the respondent to prove that alleged incidents did not happened.

[103]Turing now to some of the definitions in the Act. The definition of direct discrimination, section 13 of the Equality Act: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[104]The definition in section 13 incorporates two elements. Firstly, whether A has treated B less favourably than others and that is the “less favourable treatment question” and, secondly, whether A has done so because of the protected characteristic and that is the “reason why question”.

[105]Section 18 of the Equality Act refers to pregnancy and maternity discrimination for work cases. As sub section 1 makes clear it applies to Part 5 Work where the protected characteristic is pregnancy and maternity.

[106]Sub section 2 says that: (2) A person(a) (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably— (a) because of the pregnancy, or

(b) because of illness suffered by her as a result of it.

[107]Subsection 6 states that the protected period in relation to a woman’s pregnancy begins when the pregnancy begins and ends at the end of maternity leave.

[108]Subsection 7 states that section 13 so far as relating to sex discrimination does not apply to treatment of a woman in so far as it is in the protected period in relation to her and is for a reason related in subsection 2. Analysis and Conclusions

[109]We now turn to our analysis and we refer to the list of issues which is in the bundle and the list begins on page 28.

[110]The first issue is, as stated above, the claimant’s status and whether the claimant was an employee in accordance with section 230 of the Employment Rights Act so as to be entitled to bring claims under section 47C and section 99 of the Employment Rights Act.110.1 Our judgment on that issue is that the claimant was an employee and the actual agreement that was reached between the parties was that the claimant would work at Lincoln Crescent Monday to Friday, 8am to 4pm, each day. There was an obligation on the claimant to be present at that location between those hours each day unless she contacted the respondent in advance either to seek holiday or other permitted absence or else to report a sickness absence. The written agreement entered into in December 2018 was a sham in the Autoclenz sense. The statement in that document that the claimant would not be an employee and that she had no obligation to work did not affect the actual reality of the agreement which the parties had reached and as they both understood it. The claimant signed the contract because the bargaining position between them was not equal and because she was told by Mr Terziu that her hours would remain unchanged. Furthermore and in any event, the Claimant had been working as an employee for 3 months (from September 2018) prior to signing that document.

110.2 The Claimant was under the control of the Respondent. The list of duties (see paragraph 7 above) showed that it was the respondent which dictated the tasks, and the manner of, and timing of, those tasks. She was required to report to managers and she was fully integrated in the respondent’s business. Her start and finish time were fixed by the respondent (albeit with some flexibility for her and the other workers to agree to start slightly earlier or later) and so was her location. The Respondent provided the equipment which was needed. It was conceded by the Respondent that the Claimant had to do the work personally.

110.3 There was mutuality of obligation. The claimant had agreed to attend work and the respondent had agreed to pay her and to provide training. Detriment complaints

[111]Turning now to the detriment complaints. This is Item 7 in the list of issues as quoted above. The complaints are based on section 47C, “was the claimant subjected to the following alleged detriments by the employer for a reason related to her pregnancy”. There are 6 items and we will go through each in turn: Item7.1.1 - The respondent refused to allow the claimant to continue to work towards becoming a manager. Our decision on this follows from our findings of fact that there was no specific agreement that the claimant would become a manager. It was a possibility for the longer term future, but not a formal arrangement and no specific plans were in place to achieve it. The respondent did not specifically do anything to terminate existing plans, or to prevent the claimant becoming a manager, because there were no plans in place for that to happen. Therefore, that fails Item

7.1.2 - As per the list of issues the allegation is that the respondent having agreed to the claimant’s undertaking an NVQ Level 3 Childcare qualification did not progress this any further despite previously telling the claimant that funding had been secured. The claimant was apparently enrolled by the respondent with the course provider DCAS (although the only evidence about that is the letter dated 28 February 2019). After the respondent received the letter of 28 February 2019 from DCAS, Mr Terziu decided that he would not progress the matter further. He did not liaise with the claimant to find out why the letter stated that she had not been in touch with DCAS. He knew that he had not provided her with details of DCAS. He did not contact DCAS to check whether they had the correct contact details for the claimant and he did not speak to the claimant to see whether she was aware that they had been attempting to contact her. He did not mention it to her at all. Our judgment is that Mr Terziu would have progressed matters within the month of March 2019 but for the fact that he knew by then, by 3 March at the latest, that the claimant was pregnant. There was no specific evidence provided to us of the date on which Mr Terziu received the letter of 28 February 2019 but we assume it was reasonably promptly after that date. Item

7.1.3 - The respondent removed the claimant from a full time role based at YYY Great Cambridge Road on 30 April 2019 because of hospital appointments the claimant had to attend due to her Our finding of fact was that the claimant was permanently allocated to Lincoln Crescent until she left that unit for reasons connected to her pregnancy and that she was then allocated to Great Cambridge Road as a new permanent unit. She was not temporarily allocated to Great Cambridge Road. It was intended that this would be the new permanent location for the claimant and that is what the claimant was led to believe and she was not told otherwise at the start of April 2019. The respondent decided, later in April 2019, that it would not retain the claimant as the permanent support worker for Great Cambridge Road and its decision was made for reasons related to the claimant’s pregnancy. The reasons were not because of any specific hospital appointment, but rather a more general belief that - because of the claimant’s pregnancy the claimant could not be relied upon each day (Monday to Friday starting at around 8am) to attend to do her shifts. Item

7.1.4 - After 30 April 2019 the respondent only offered the claimant work when other staff were unavailable. Our finding is that the claimant was told at the meeting on 30 April that there would be a change in her working arrangements. Our finding was that the claimant had regular hours, Monday to Friday, 8am to 4pm (approximately) from September 2018 through until 30 April 2019. She has also had an agreement to perform those hours at a specific unit, namely Lincoln Crescent up to 25 March (bar a short period in February 2019), and then at Great Cambridge Road until the end of employment. On 30 April, the claimant was told that in future she would be allocated ad hoc work when other staff were absent. She was not told that she would keep the same hours, Monday to Friday, 8am to 4pm, and that only the work locations might change. She was told that the availability of work would depend on whether other staff were absent or not. The possibility of working regularly at the new unit was mentioned but there was no guarantee and no discussion about when this would potentially start. On 30 April 2019, the respondent changed the claimant’s hours of work from being regular and guaranteed at a specific location to being ad hoc and unguaranteed, and at non-regular locations. The reason for this proposed change was because, of her pregnancy (ie that, because of her pregnancy, the Respondent decided that she might not regularly attend work for the start of her agreed shifts). Item

7.1.5 - Shortly after 30 April, being posted to a site in Basildon. Our finding is that this allegation fails. The claimant was not posted to this site after 30 April 2019. Item

7.1.6 - As worded states “Forcing the claimant to resign on 1 May 2019 because of the above treatment”. We uphold complaints 7.1.2, 7.1.3, and 7.1.4. Those are detriments, because they were disadvantages to which the claimant was subjected and, as mentioned, we found in each case that it was because of her In relation to 7.1.6 our finding is that the respondent proposed to change the claimant’s contract. The claimant did not wish to agree to the change, and she made that clear to the Respondent. She wanted to stay as a worker with fixed hours and working at the same unit each day (by this stage Great Cambridge Road rather than Lincoln). The claimant did not wish to agree to the change but she was told that she had no choice. That was the reason for the claimant’s resignation. Automatic unfair dismissal

[112]Turning now to Item 8 in the list of issues, automatic unfair dismissal. Item8.1 Did the respondent conduct itself in a way that breached the implied term of mutual trust and confidence for some or all of the reasons alleged in paragraphs 7.1.1 to 7.1.5 above? Our finding is that the proposed changes to the claimant’s terms and conditions did breach the implied term of mutual trust and confidence. Looked at objectively, the respondent decided to make changes to the working arrangements for the claimant in relation to hours of work and place of work without warning. Furthermore, it did so for reasons connected to her pregnancy. Without reasonable cause the respondent conducted itself in a manner likely to destroy the relationship of trust and confidence between the claimant and the respondent. The stable arrangement which had existed to that point was being terminated and the proposal was that it would be replaced with something far less certain and there was no reasonable justification for this. Item

8.2 If so, was the reason, or principal reason, the conduct related to the claimant’s pregnancy. Our decision is, yes. It was related to the claimant’s pregnancy. Item

8.3

8.3.1 – Did the claimant resign on 1 May 2019 because of the respondent’s breach of contract? Our answer is yes. She did resign in response to the breach of contract.

8.3.2 – Did the claimant acquiesce to the breach or affirm the contract following a breach by the respondent. No, she did not. The breach occurred on 30 April 2019 and the claimant reacted to it promptly by resigning. Item

8.4 Reminds us the claimant does not have qualifying serviced and therefore the onus is on her to demonstrate to prove that the reason (or if more than one, the principal reason) for the dismissal was her pregnancy The claimant has proved to our satisfaction that the reason for the conduct (which we have found was a breach of contract and) which caused her to resign was connected with her pregnancy. That is, because of her pregnancy, the respondent formed the view that she might not attend work at the start of her shifts at Great Cambridge Road and therefore acted in the manner which we have described above. We therefore found that the automatic unfair dismissal claim, as per section 99 ERA succeeds. For that reason, the allegation of detriment, 7.1.6, fails (in accordance with regulation 19(4) of MAPLE).

[113]Item 9 of this list of issues deals with remedy and will be addressed at the remedy stage. Discrimination because of pregnancy and maternity

[114]Item 10 of the lists (see above) asks if the respondent subjected the claimant to the 6 examples of alleges unfavourable treatment, so as to be within the definition of discrimination in section 18 of Equality Act 2010, and therefore to be contraventions falling within section 39 of the Equality Act? These are generally worded the same as 7.1.1 through to 7.1.6 and so we will not repeat the wording in full each time. We will answer the question posed in 10.2 as we discuss each allegation.10.1.1 Repeats the allegation about becoming a manager. Our finding is that the respondent has not treated the claimant unfavourably as alleged in 10.1.1 because the allegation fails on the facts. There had not been an agreement for the claimant to become a manager in due course.

10.1.2 The respondent did treat the claimant unfavourably in this regard. As discussed above, we found that in March 2019, but for the claimant’s pregnancy, the NVQ would have been progressed. It was not progressed and that amounted to treating the Claimant unfavourably. She did want it to be progressed, and the respondent had agreed in September that it would arrange this, and the Respondent did progress the NVQ qualifications for other employees. The reason that it was not progressed for the Claimant as and the reason was the claimant’s pregnancy. This was discrimination within the definition in section 18(2)(a) of the Equality Act and was a contravention of section 39(2)(b) of that Act.

10.1.3 Removing the claimant from role in Great Cambridge Road. Our decision is that this was less favourable treatment, again, for similar reasons discussed above when analysing detriment. It was not specifically because of hospital appointments but it was because of the claimant’s pregnancy. Our finding, as we have already said, was that she had been permanently allocated to Cambridge Road and then a decision was made and communicated to the claimant on 30 April that she would no longer be permanently allocated to that unit or to any other unit. This was discrimination within the definition in section 18(2)(a) of the Equality Act and was a contravention of section 39(2)(a) of that Act. Furthermore, if, contrary to our decisions that this was a change to the contract of employment, it was a detriment, and therefore a contravention of section 39(2)(d).

10.1.4 Telling the claimant that she would only work when other staff were unavailable was unfavourable treatment. It was done because the claimant was pregnant. She was told on 30 April that going forward she would only be offered work when other staff were unavailable, subject of course to the comments that were made to her about the possibility of working in the new unit when that work became available. This was discrimination within the definition in section 18(2)(a) of the Equality Act and was a contravention of section 39(2)(a) of that Act. Furthermore, if, contrary to our decisions that this was a change to the contract of employment, it was a detriment, and therefore a contravention of section 39(2)(d).

10.1.5 This allegation fails on the facts. The claimant was not posted to Basildon after 30 April.

10.1.6 We repeat what we said earlier. The reason for the claimant’s resignation was that she was told on 30 April that there was going to be changes to her contract. She was no longer going to have fixed hours at a fixed location but instead she was going to have uncertain hours covering absences. The fact that she was told about this change was the reason for the claimant’s resignation. The reason for the respondent telling her about this change was her pregnancy and it was unfavourable treatment because of her pregnancy. The Claimant was dismissed within the meaning of section 39(7)(b) of Equality Act 2010 and was in response to conduct which (as described above) was a breach of the Act. Therefore, the Claimant’s dismissal was a contravention of section 39(2)(c) of the Act. Direct discrimination

[115]Item 11 The allegations of direct discrimination fail because of Section 18.7 of the Equality Act. Time limits

[116]In relation to time limits the events of 30 April 2019 are in time. The only matter that is potentially out of time is our finding that the claimant was subjected to less favourable treatment under section 18 of the Equality Act and also subjected to a detriment under section 47C on the basis that the NVQ course was not progressed. The date on which this occurred, at the earliest, was the date on which Mr Terziu saw the letter form the course provider. The letter was dated 28 February and so he did not receive it before then. There was no clear evidence provided to us about when he received or read the letter.

[117]For the purposes of the Equality Act, our finding was that the decision not to progress the NVQ course is a continuing act with the events of 30 April. It is the same individual involved, namely Mr Terziu, and our decision is that the reason that the course was not progressed was that it was anticipated that the claimant would not be remaining as a support worker in the long term and that the reason for the respondent’s opinion about this was that she was pregnant, which is similar reasoning to its decision that she could not be relied upon to attend her shifts because she was pregnant. Therefore the events of 30 April 2019 are a continuing act in our opinion.

[118]In the alternative, if we were wrong about that, if they were not a continuing act, then we would exercise our discretion to extend time under the Equality Act on the basis that it is just and equitable to do so. The claims were at most, only slightly out of time (and of course they might be in time depending on when Mr Terziu actually saw the letter). The respondent has not been prejudiced by having to defend the claims in relation to that particular allegation whereas the claimant would be significantly prejudiced if she was unable to obtain a remedy in relation to that particular complaint. The evidence on that complaint is evidence that would come entirely from Mr Terziu in any event and he is a witness in these proceedings and the respondent has therefore not lost the opportunity to produce relevant evidence in relation to that particular issue.

[119]In relation to the complaint (7.1.2 in the list of issues) that not progressing the NVQ course was a detriment contrary to section 47C ERA, our decision is that it is in time because it was part of a series of similar acts, given the events of 30 April 2019 when the respondent also went back on its prior agreement with her by changing her working arrangements.

Introduction

[1]This hearing took place by video. It follows the hearing on 11 and 12 January 2021, at which judgment was given orally. The written judgment was sent to parties on 18 February 2021; written reasons were requested on 20 January 2021 and sent 14 April 2021. The Hearing and the Evidence

[2]At the remedy hearing, in addition to the documents from the liability hearing, we had an 80 page pdf (remedy bundle) and a 10 page pdf (further documents – remedy), both of which were supplied without an index. We also had 4 separate pdfs which were copies of the Claimant’s bank statements for July, August, September 2019 and April 2021.

[3]The Claimant had not produced a new witness statement, but her original statement contained some paragraphs relevant to remedy. She gave oral evidence based on that statement, and answered questions from the Respondent's representative and the panel. Facts

[4]Prior to working for the Respondent, the Claimant worked for Direct to Market Solutions. She did door to door sales and this was commission based. The letter (page 68 of remedy bundle) dated 10 May 2021 is in error when it states that she worked for them for 9 months in “2019”; it should have said 9 months in “2018”. The letter correctly stated that the Claimant did 4 days work for this employer starting 20 April 2021. She left after 4 days because she was unable to adapt to doing telephone sales rather than door to door. That is the only employment she has had since ceasing work for the Respondent.

[5]The Claimant’s intention had been to start her maternity leave on 1 September 2019 and to come back from maternity leave on 1 February 2020. There is no documentary evidence in support of the latter date, but that is not surprising or suspicious and we take the Claimant at her word that that is what she intended to do, taking into account that she was the main wage earner, and that her husband was not in employment. Had she returned to work with the Respondent, she would not have had to pay for child care.

[6]The Claimant had her baby in October 2019. On 24 February 2020, the Claimant and her family had to leave their residence; the circumstances were such that the local authority accepted responsibility for providing temporary accommodation. They moved into their new permanent accommodation on 22 June 2020, having stayed in temporary accommodation in the interim.

[7]From her employment with the Respondent, the Claimant was paid up to and including 30 April 2019. She was paid the national minimum wage. As per our findings in the liability reasons, her hours fluctuated slightly but were normally 40 hours per week, 8am to 4pm, Monday to Friday (without an unpaid break). Thus her gross weekly salary at termination was 40 x £8.21, which is £328.40. That is equivalent to £291.31 net.

[8]Starting from 7 May 2019, she was entitled to Universal Credit of £623.70, which was payable because she was no longer employed. This increased to £1792.58 when she moved into the new permanent accommodation (22 June 2020). The DWP appointed a job coach to assist the Claimant in her search seek work (and to ensure that she was doing so).

[9]As shown on the September 2019 bank statement, there was also a payment “Received From Lbnewham – HB”. The amount was £312.81. No other documents explained this sum, although the Claimant believes it was a one off payment. Our inferences are as follows:a. The Claimant received Housing Benefit from the local authority in addition to Universal Credit from the DWP.

b. The sum was £312.81 per month.

c. The start date of this benefit was the same as the start date of Universal Credit, ie 7 May 2019.

d. The end date of this benefit was the date before the Claimant moved into the new property (so 21 June 2020). It appears that, from that date, rather than a separate amount being paid for Housing Benefit, the Universal Credit amount was increased to take account of the rent on the new property.

[10]In making these inferences, we are doing the best that we can with the limited evidence that is available. In the absence of any documents from the Claimant which explain the “Received From Lbnewham – HB” payment, and the absence of bank statements for months after September 2019 and before June 2020 which would potentially demonstrate the amount – if any - for later months), we do not think it is just and equitable to ignore this sum, or to assume that the Claimant’s recollection is correct that it was a one off payment. On the balance of probabilities, it was not a one off sum.

[11]The Claimant did not seek to claim other benefits (including “maternity allowance”). At the time, she had no information that she might potentially be eligible and she was not informed that she was potentially eligible by DWP or anyone else.

[12]The Claimant made some attempts to find new work by going to stores and restaurants in person and asking if they had vacancies. There is no documentary evidence of this, but we accept that she did it from time to time. We do not accept that she made more than a handful of such requests.

[13]The Claimant made some attempts to find work by uploading her CV to a website/phone app called Indeed. She believes that she applied for 30 to 40 jobs per day by this method. She believes that she no longer has access to some of the applications which she made in the past because – in her opinion – after she changed phones and had to download the app again, she was not able to access the full history. Based on what is included in the bundle (which are the only documents which the Claimant disclosed to the Respondent), our findings are:a. In May 2019, the Claimant applied for a job with Hawaiian Choice

b. On 24 May 2020, the Claimant applied for Customer Support Specialist with Beeline

c. On 24 May 2020, the Claimant applied for Telesales Executive (employer details not shown in bundle)

d. On 5 March 2021, the Claimant applied for 10 vacancies

[14]From the lists of Indeed vacancies which the Claimant has supplied, there is no evidence that the Claimant applied for those which simply say “Apply to …” or “… have new jobs”. This is because for other vacancies (those listed in the preceding paragraph) the text states, “you submitted an application for …”.

[15]An employer called Evoke contacted the Claimant and asked her if she was interested in work as Residential Support Worker. She replied to say that she was interested, but heard nothing further.

[16]In the bundle, there is no copy of the CV lodged with Indeed (which was available to be forwarded to the prospective employers). In the bundle, there is no copy of any bespoke application to Evoke or to any other employer.

[17]In April 2021, the Claimant approached her previous employer, Direct to Market Solutions, looking for work. Due to the pandemic, they had no door to door vacancies. (She did not approach them earlier because she knew this.) Things did not work out, and she left.

[18]We do not accept the Claimant’s assertion that she was applying for 30 to 40 vacancies per day. If she had been applying for that many, then she would have had evidence of many more applications than those mentioned above, even allowing for the fact that some were in person and that some evidence might have gone missing when she changed phone and/or when she was in temporary accommodation.

[19]The Claimant was caused stress by the fact that she lost her job at the time that she was pregnant (making finding new work more difficult) and knowing that her husband was not able to work at the time. She expected to (and did, in fact) undergo significant financial hardship.

[20]The Claimant was also upset by the knowledge that she would not become a manager with the Respondent (and, as per our liability decision, this was something which was not guaranteed to her, and was only a possible outcome some significant time into the future) and that the Respondent did not progress the NVQ course (which, as per our liability decision, was an act of discrimination in its own right).

[21]There is no medical evidence that the stress had any effect on her pregnancy or that she required any specific treatment from her GP (or any other medical adviser) because of the stress related to losing her job and/or the other detriments.

The Law

[22]The purpose of compensation is to provide proper compensation for the wrong which we found the Respondent to have committed. The purpose is not to provide an additional windfall for the Claimant and is not to punish the Respondent.

[23]For financial losses, we must identify the financial losses which actually flow from the acts which we found, in our liability decision, to be discrimination. We must take care not to include financial losses caused by any other events, or losses that would have occurred any way. (We would also award losses for unfair dismissal if this were not double of the same loss).

[24]In Ministry of Defence v Hunt

[1996] ICR 554

, the EAT made clear that the duty for a claimant to mitigate loss applies in cases of discriminatory dismissals, and gave general guidance as to calculating future loss. This included the need to take account of the fact that an employee might leave employment for a variety of reasons and that it is important for a tribunal to take account of those reasons (including the possibilities of dismissals which are not unfair and not discriminatory.)

[25]When considering whether a claimant has acted reasonably to mitigate their loss, it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate, and the respondent bears a burden of proof when seeking to show this. What is reasonable and unreasonable is a question of fact for the tribunal to determine, and the mere fact alone that there might have been reasonable steps which the claimant could have taken, but did not take, does not necessarily mean that the claimant acted unreasonably. Furthermore, in determining whether the claimant has acted unreasonably, it is necessary to take account of the claimant’s own preferences about the activities which they choose to undertake in order to earn money; a claimant’s desire to (say) have a career change, or to study for a different career, or to start their own business, should not be ignored; however, the fact that they had a pursued a course of action that was to their liking will not always be something that insulates them against a finding that their failure to mitigate was unreasonable.

[26]As per Savage v Saxena

[1998] IRLR 182

, where a tribunal is satisfied that the Claimant failed to comply with the duty to (attempt to) mitigate their losses, the tribunal should(1) Identify what steps should have been taken by the claimant to mitigate her loss;

(2) Find the date upon which such steps would have produced an alternative income;

(3) Thereafter reduce the amount of compensation by the amount of income which would have been earned.

[27]For injury to feelings, we must not simply assume that injury to feelings inevitably flows from each and every unlawful act of discrimination. In each case it is a question of considering the facts carefully to determine whether the loss has been sustained. Some persons who are subjected to detriment or dismissal may feel deeply hurt and others may suffer little, if any, distress.

[28]When making an award for injury to feeling, the tribunal should have regard to the guidance issued in Vento v Chief Constable of West Yorkshire Police (No 2)

[2003] EWCA Civ 1871

[2003] IRLR 102

[2003] ICR 318

, CA, and take account of the changes and updates to that guidance for inflation and other matters. Three broad bands of compensation for injury to feelings (as distinct from compensation for psychiatric or similar personal injury) were identified:a. The top band was (at the time) between £15,000 and £25,000. Sums in the top band should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment.

b. The middle band was, initially, £5,000 and £15,000. It is to be used for serious cases, which do not merit an award in the highest band.

c. The lower band is appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. Awards in this band must not be so low as to fail to be a proper recognition of injury to feelings.

[29]In Da’Bell v NSPCC (2009)

[2010] IRLR 19

, the Employment Appeal Tribunal revisited the bands and uprated them for inflation. In a separate development in Simmons v Castle

[2012] EWCA Civ 1039

and 1288,

[2013] 1 WLR 1239

, the Court of Appeal declared that - with effect from 1 April 2013 - the proper level of general damages in all civil claims for pain and suffering, would be 10% higher than previously. In De Souza v Vinci Construction (UK) Ltd

[2017] EWCA Civ 879

, the Court of Appeal ruled that the 10% uplift should also apply to Employment Tribunal awards of compensation for injury to feelings and psychiatric injury.

[30]There is presidential guidance which takes account of the above, and which is updated from time to time. This claim is one which was issued in July 2019. The relevant guidance applicable to this claim states: In respect of claims presented on or after 6 April 2019, the Vento bands shall be as follows: a lower band of £900 to £8,800 (less serious cases); a middle band of £8,800 to £26,300(cases that do not merit an award in the upper band); and an upper band of £26,300 to £44,000(the most serious cases), with the most exceptional cases capable of exceeding £44,000. Analysis

[31]We are satisfied that the Claimant should be awarded her losses for the period 1 May 2019 to 31 August 2019 (17.57 weeks) based on the full net loss (which we calculate below). The Claimant had no intentions of resigning and there were no fair and non-discriminatory reasons to dismiss her at that point. The Respondent has not proven that the Claimant acted unreasonably in failing to mitigate her losses at this stage. We do take into account that there is only documentary evidence of one job application in the period, but the Claimant has provided a partial explanation for that (that she changed phone) and she was making some applications in person. She was also able to satisfy the DWP that she was taking sufficient steps to look for work. The fact that the Claimant was unsuccessful in this period does not demonstrate that she acted unreasonably, and the fact that she was unable to find work might have been connected to the fact that she was pregnant at the time.

[32]We are satisfied that the Claimant should be awarded her losses for the period 1 September 2019 to 12 October 2019 (6 weeks) based on the SMP that she would have been entitled to in that period, which is £295.56 (90% of £328.40) per week. The Claimant had no intentions of resigning and there were no fair and non-discriminatory reasons to dismiss her at that point.

[33]We are satisfied that the Claimant should be awarded her losses for the period 13 October 2019 to 31 January 2020 (15.86 weeks) based on the SMP that she would have been entitled to in that period, which is £148.68 per week. The Claimant had no intentions of resigning and there were no fair and non-discriminatory reasons to dismiss her at that point.

[34]The Respondent's representative argued that there were other benefits which the Claimant could have claimed but failed to claim (including maternity allowance) and this was an unreasonable failure to mitigate. We are not persuaded by this argument. There is no specific evidence about the amounts of additional alleged benefits which the Claimant might have received. However, and in any event, she was in contact with the DWP and the local authority and was not advised to apply for maternity allowance. She has not acted unreasonably in failing to obtain other benefits.

[35]We have accepted the Claimant’s evidence that she would have returned to work on 1 February 2020. We have considered whether we should try to look at two possible outcomes (the Claimant returning to work on 1 February 2020, as she says she would have done; and the Claimant exercising her right to the full maternity leave period, as she had the right to do) and ascribe a percentage likelihood to each of these. We have decided not to, because neither party invited us to take that approach, and because the Claimant was quite clear in her evidence, including under cross-examination, that she was sure she would definitely have returned to work on 1 February 2020.

[36]We are satisfied that the Respondent has proved that the Claimant acted unreasonably in her attempts to mitigate her loss. She has not shown documentary evidence of any job applications at all for the periods February, March and April 2020 or for June 2020 to February 2021. Although, as discussed above, the Claimant has put forward an explanation for that lack of evidence, the explanation is not good enough to explain why she can only evidence 2 applications between February 2020 (both in May) and a flurry of applications on 5 March 2021 (which was after the liability decision and in the period that evidence of mitigation was being sought by the Respondent for the remedy hearing). We are satisfied that if the Claimant had made 30 to 40 applications per day on Indeed, from February 2020 onwards, then she would have been able to provide evidence of several hundred applications to us (even if proof of some applications went missing). The fact that she can only provide evidence of two leads us to infer that the number of applications was very low, even when adding in the in person applications that she believes she made (and she was only able to describe 2 or 3 of those specifically) and applications for which the evidence has been lost.

[37]We have taken account of the fact that the Claimant had to leave home for emergency reasons on 24 February 2020 and of the problems that undoubtedly caused. However, there was no evidence of applications in the period 1 to 23 February 2020. Furthermore, since the Claimant was able to make two applications in May 2020, she ought to have been able to make many more than two that month, as well as many in subsequent months.

[38]We have also taken account of the effects of the pandemic which led to a lockdown announcement around 23 March 2020. There were was no evidence of job applications in the period 1 February to 23 March 2020. The restrictions began to ease after several weeks (prior to tightening again later in the year).

[39]Taking account of the work which the Claimant had performed for the Respondent, the Claimant had skills in the social care sector, which was not obliged to cease operating during the lockdown (notwithstanding the restrictions placed on members of the public from interacting with service users). Some of the other types of job which the Claimant might have been interested in (including sales) were not likely to have been recruiting during lockdowns.

[40]Taking account of the above, we are satisfied that if the Claimant had acted reasonably (including by applying for more jobs via Indeed, and/or by signing up for other recruitment apps, and/or by registering with an agency supplying workers in the care sector) then she would have been able to obtain a new job which paid the same as the Respondent (that is national minimum wage for 40 hours per week) by no later than 1 July 2020.

[41]We therefore award the Claimant her losses for the period 1 February 2020 to 30 June 2020 based on 40 hours per week at NMW rates. We do not make a further reduction to this loss to take account of the possibility of a choice of career change (ie leaving the job of her own accord), because she would have only done so had she first been able to find a new job to go to, which was unlikely in this period. We also do not make a further reduction to this loss to take account of the possibility of a fair and non-discriminatory dismissal in this period as we are satisfied that there is no realistic chance of such a dismissal taking place in this comparatively short 5 month period. NMW increased from £8.21 to £8.72 per hour with effect from 1 April 2020. So the weekly gross would be 40 x £8.72 which is £348.80.

[42]At the time of her dismissal, the Claimant had worked for the Respondent since September 2018. In other words, she had more than 7 months continuous employment counting towards the possibility of acquiring, after 2 years, protection against (ordinary) unfair dismissal. We award her £200 for the loss of this continuity, because she will have to start again from scratch with a new employer.

[43]The Claimant sought injury to feelings compensation of £20,000. In other words, somewhere slightly above the middle of the middle Vento band. The Respondent argued for compensation in the lower part of the middle Vento band.

[44]This discriminatory dismissal had a significant effect on the Claimant’s emotional wellbeing, but we are satisfied that she had recovered by the time of the hearings in 2021. The dismissal was not the only discrimination. As per the liability decision, the Respondent also failed to progress the NVQ training. For these reasons, an award in the lower band would not be appropriate (and nor has the Respondent invited us to make such an award.)

[45]The effects were not long-lasting. The Claimant was able to make some job applications in the period 1 May 2019 to 31 August 2019. There is no medical evidence that she needed specific treatment to counteract the effects of the discrimination (although she was, of course, attending appointments connected to pregnancy). All discrimination is a very serious matter, but we are satisfied that an award in the highest Vento band would not be appropriate in this case (and nor has the Claimant invited us to make such an award.)

[46]Our judgment is that the sum of £12,000 (being slightly nearer to the bottom of the middle band, than to the middle of that band) is appropriate in this case in all the circumstances, taking account of all the acts of discrimination, and ignoring those matters which we found did not contravene the Equality Act.

[47]This is an appropriate case for us to exercise our discretion and to award interest, both on the financial loss and on the injury to feelings award. Calculations Loss of Income

[48]We must calculate loss of net income to 30 June 2020 (after which there would be no further loss if there had been appropriate attempts to mitigate).

[49]First we calculate gross earnings within tax year 19/20 in order to work out what tax and national insurance would have been payable and hence the net loss.a. 1 May 2019 to 31 Aug 2019: 17.57 x £328.40 = £5769.99

b. 1 Sep 2019 to 12 Oct 2019: 6 x £295.56 = £1773.36

c. 13 Oct 2019 to 31 Jan 2020: 15.86 x £148.68 = £2358.07

d. 1 Feb 2020 to 31 March 2020: 8.57 x £328.40 = £2814.39

e. 1 April 2020 to 5 April 2020: 0.71 x £348.80 = £247.65

[50]No P45 or P60 was placed in the bundle, which means that we must estimate the gross pay for 6 April 2019 to 30 April 2019 from the payslip at page 19 of remedy bundle. We take it to be 25/30 x £1469.59 = £1224.66.

[51]So, for tax purposes, the Claimant’s gross income for 19/20 would have been: £1224.66 + £5769.99 + £1773.36 + £2358.07 + £2814.39 + £247.65 = £14188.12, of which £12963.46 is the gross loss for the period 1 May 2019 to 5 April 2020.

[52]The deductions for tax and national insurance for 19/20 would have been £1004.35 of which an estimated 25/30 x £213.78 = £178.15 were paid in April, leaving a remaining £826.20 for the period 1 May 2019 to 5 April 2020.

[53]Thus the net income that was not received for the period 1 May 2019 to 5 April 2020 is £12,963.46 - £826.20 = £12,137.26.

[54]For the year 20/21, if the Claimant earned £348.80 gross per week then the net weekly earnings would have been £307.19. So net loss in that year is: a. 6 April 2020 to 30 Jun 2020: 12.29 x £307.19 = £3775.37

[55]So aggregate net earnings for 1 May 2019 to 30 June 2020 would have been £12,137.26 + £3775.37 = £15,912.63.

[56]The amount of benefits received was as follows. For the in that period 7 May 2019 to 21 June 2020, the benefits were Universal Credit of £623.70 per month and Housing Benefit of £312.81 per month: £936.51. For the period 22 June 2020 onwards, it was Universal Credit of £1792.58 per montha. 7 May 2019 to 21 June 2020 @ £936.51 per month: £12685.22

b. 22 June to 30 June 2020@ £1792.58 per month: £530.40

[57]So the total amount of benefits received was £13215.62. We have considered whether we should disregard any of the benefits for the periods 1 September 2019 to 12 October 2019 and 13 October 2019 to 31 January 2020, during which it is likely that the Claimant would have been eligible for some Universal Credit even if she had not been dismissed. However, in the absence of solid information about such entitlement (just as we have no solid information about why the Universal Credit payments did not increase following the birth of the Claimant’s baby), we have decided not to disregard any of the amounts.

[58]Thus the net loss was £15,912.63 - £13,215.62 = £2697.01. Interest

[59]We are exercising our discretion under Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 to award interest at 8% per annum.a. The loss of income accrued between 1 May 2019 and 30 June 2020 and so we award interest from the mid-point, which is 30 November 2019. From 30 November 2019 to the calculation date of 1 June 2021 there are 550 days. At a daily rate of £(2697.01 x 0.08)/365, the interest awarded is therefore £325.12.

b. In relation to the discrimination, the first act was around early March as described in the liability reasons. The dismissal and its consequences is likely to have caused proportionately more of the injury to feelings than the non-progression of the NVQ, but it would not be appropriate to entirely disregard the earlier discrimination for the purposes of the interest calculation. Our decision is that it is just and equitable to award interest from 1 April 2019. The period to 1 June 2021 is 793 days. At a daily rate of £(12,000 x 0.08)/365, the interest awarded is £2085.70.