Ms N Hinds v Mitie Ltd: 3322885/2021 and 3322911/2021

EMPLOYMENT TRIBUNALS

Case No 3322885/2021, 3322911/2021

Between

Ms N HindsClaimant

Mitie LtdRespondent

Before

Employment Judge Tynan

Members

Mr M Brewis and Mr D Hart

In person for claimant

Mr Bidnell-Edwards (instructed by Counsel) for respondent

Date 13 February 2024

REASONS

[1]By way of a claim form presented to the Employment Tribunals on 15 November 2021, the Claimant pursues complaints against the Respondent that she was unfairly constructively dismissed, discriminated against contrary to sections 13 and 18 of the Equality Act 2010 (“EqA”) (in the case of s.13 with reference to the protected characteristic of sex) and subjected to detriments for family reasons contrary to section 47C of the Employment Rights Act 1996, (“ERA”) (read in conjunction with Regulation 19 of the Maternity and Parental Leave etc. Regulations 1999).

[2]We have not thought it necessary to rehearse the various issues that are said to have arisen between the parties in the course of the proceedings relating to disclosure, preparation of the Hearing Bundle, or exchange of witness statements, or in respect of the List of Issues, save to note that witness statements were exchanged just a few days prior to the first day of the final hearing and an updated List of Issues sent to the Claimant possibly as late as the evening before, or even the morning of, the first day of the final hearing.

[3]For the reasons we gave at the outset of the final hearing, given the late exchange of witness statements we determined that once we heard the Claimant’s and her witnesses’ evidence it would be necessary in the interests of justice to adjourn the final hearing part-heard to enable the Claimant a reasonable opportunity to review the Respondent’s witness statements and prepare her cross examination of its witnesses.

[4]During the adjournment, the Respondent served a supplementary witness statement on the Claimant without the Tribunal’s prior permission, nor indeed even pending an application to the Tribunal for permission in that regard. Nevertheless, we dealt with the matter at the beginning of the resumed hearing and, with the Claimant’s agreement, admitted the statement as evidence.

[5]The Claimant gave evidence in support of her claim; we also heard evidence on her behalf from Rob Hughes, Abigail Meads and the Claimant’s husband, Gary Hinds. None of the Claimant’s witnesses have worked for the Respondent and accordingly they have no first-hand knowledge of the matters about which complaint is made, though particularly in the case of Mr Hinds, he would have directly observed the deterioration in the Claimant’s mental health during 2020 and 2021. This is not a case in which the Claimant is said by the Respondent to have been inconsistent in her evidence and to have changed her story such that it might be appropriate to look to family and friends to provide evidence of consistency in her account. The testimony of the three witnesses has not assisted us in our fact finding task.

[6]On behalf of the Respondent we heard evidence from Karla Harper, Head of Operations Sainsbury’s during the period to which the claim relates. Ms Harper is the witness in respect of whom a supplementary witness statement was served. We also heard evidence from Nav Kalley and Craig Robertson, respectively Account Director and Regional Director during the period to which the claim relates. Ms Harper and Mr Kalley had line management responsibilities in relation to the Claimant at various times. Mr Robertson heard and determined the Claimant’s grievance dated 3 September 2021.

[7]The Respondent additionally relied upon witness statements from Patrick Ryan, Payroll Operations Manager and Samantha Lowcock, Interim Payroll and Benefits Senior Associate. Although the dates of the adjourned hearing were fixed with the Respondent’s witnesses’ availability specifically in mind, Mr Ryan was out of the jurisdiction at the time of the hearing in a country from which he was not permitted to give evidence in legal proceedings in the UK. We could not, therefore, hear his testimony. We were not told why Ms Lowcock did not attend Tribunal to give evidence. In each case, the Claimant has been denied the opportunity to cross examine them about their evidence. Nevertheless, for reasons we will return to, we feel able to rely upon their evidence in reaching our findings and coming to a Judgment.

[8]Before setting out the Law, our findings and conclusions, we briefly mention the List of Issues. Notwithstanding Mr Bidnell-Edwards’ eleventh hour amendments to the List of Issues and putting aside that these unsettled the Claimant, having reviewed the claim form we are satisfied that the List of Issues accurately captures the complaints that are comprised within the Claimant’s claim to the Tribunal, particularly as the final iteration of the List of Issues was substantially rooted in a draft List of Issues prepared by and then amended by the Claimant. In any event, we used the first day of the final hearing to work through Mr Bidnell-Edwards’ draft List of Issues with the Claimant to ensure that it accurately captured her complaints, and accordingly the issues the Tribunal would need to determine. We have structured our findings and conclusions with specific reference to that List of Issues. The Law Constructive Unfair Dismissal Part X of the Employment Rights Act 1996

The Law

[9]Subject to any relevant qualifying period of employment, an employee has the right not to be unfairly dismissed by her employer (s.94 ERA 1996).

[10]Dismissal includes where the employee terminates the contract under which she is employed with or without notice in circumstances in which she is entitled to terminate it without notice, by reason of the employer’s conduct (s.95(1)(c) ERA 1996).

[11]The Claimant claims that she resigned by reason of the Respondent’s conduct. The last matter identified by the Claimant as having been relied upon by her is the Respondent’s, specifically Mr Kalley’s and thereafter his and Helen Young’s failure, to respond to her emails of 2 and 3 September 2021.

[12]It is an implied term of all employment contracts that the parties will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the essential trust and confidence of the employment relationship.

[13]The Claimant relies upon Acts 1 to 6 of paragraph 2.9 of the List of Issues, Acts (a) to (u) of paragraph 3 of the List of Issues and Acts (a) to (d) of paragraph 4.11 of the List of Issues, as breaches of the implied term of trust and confidence. There is some element of duplication within them.

[14]The Claimant must have relied upon the conduct complained of in resigning her employment. It is not every breach of contract that will justify an employee resigning their employment without notice. The breach, or the matters collectively complained of, must be sufficiently fundamental that it, or they, go to the heart of the continued employment relationship. Even then, the employee must actually resign in response to the breach, or breaches, and not delay unduly in relying upon it, or them, as bringing the employment relationship to an end.

[15]In his judgment in Western Excavating v Sharp

[1977] IRLR221

, Lord Denning said that an employee, “…must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

[16]The other classic, more detailed formulation of the principle is the judgment of Mr Justice Browne-Wilkinson (as he then was) in WE Cox Toner (International) Limited v Crook

[1981] IRLR443

, “The general principles of contract law applicable to a repudiation of contract are that if a party commits a repudiatory breach of contract, the other party can choose either to affirm the contract and insist of further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must, at some stage, elect between those two possible courses: if he affirms the contract, his right to accept the repudiation is at an end… Affirmation of the contract can be implied if the innocent party calls on the guilty party for the performance of the contract, since his conduct is only consistent with the continued existence of the contractual obligations. Moreover, if the innocent party himself does acts which are only consistent with he continued existence of the contract, such acts will normally show affirmation of the contract…”

[17]Under the ‘last straw’ doctrine, an employee can resign in response to a series of breaches or conduct that cumulatively amount to a breach of trust and confidence, Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ.978

. The final incident relied upon by an employee, the so called ‘last straw’, need not be of the same character as the earlier matters complained of and indeed may be relatively insubstantial. The ‘last straw’ may resurrect earlier breaches of contract that have otherwise been waived by the employee. The question is whether, viewed objectively, the employer has demonstrated that it no longer intends to be bound by its obligations as an employer. The ‘final straw’ if it is not itself a repudiatory breach of contract, must contribute something to the cumulative breach, even if what it adds is relatively insignificant, though it must not be trivial or innocuous. A Tribunal will fall into error if it assumes that because an employer acted reasonably in a matter, its actions should therefore be regarded as innocuous, Williams v The Governing Body of Alderman Davies Church in Wales Primary School

UKEAT/0108/19

. Regulations 16 and 18 of the Management of Health and Safety at Work Regulations 1999

[18]Regulation16.1 of the 1999 Regulations requires all employers to maintain a workplace risk assessment in respect of new and expectant mothers. An employer has further specific duties once an employee notifies it in writing that she is pregnant. Once that notification is given, the employer has a duty under Regulation

16.2 to alter the employee’s working conditions, or hours of work, if any risks to health and safety cannot be avoided through taking other action. Where it is not reasonable for the employer to make such alternation, or it would not be effective to avoid any identified risks, the employer must offer the employee suitable alternative work or, in the absence of such work, suspend the employee from work on full pay. Section 47C of the Employment Rights Act 1996

[19]S.47C of ERA 1996 provides that an employee has the right not to be subjected to detriment by her employer done for a prescribed reason. The reasons are prescribed under Regulation 19 of the Maternity and Parental Leave Regulations 1999 and essentially relate to pregnancy and family leave. §.13 and 18 of the Equality Act 2010

[20]S.13(1) of EqA 2010 provides as follows: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[21]S.18(2) of EqA 2010 provides: 18 Pregnancy and maternity discrimination: work cases(1) …

(2) A person (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.

[22]The operative causal test under both sections is ‘because’.

[23]In Nagarajan v London Regional Transport [2000], Lord Nichols when giving Judgment in an Appeal in a race discrimination case under the Race Relations Act 1976, said, “Thus in every case it is necessary to enquire why the complainant received less favourable treatment, this is the crucial question. Was it on grounds of race or was it for some other reason, for instance because the Claimant was no so well qualified for the job? Save in obvious cases answering the crucial question will call for some consideration of the mental processes of the alleged discriminator.”

[24]Nagarajan was referred to by the Supreme Court in R (E) v The Governing Body of J F S (SC)(E) [1010]. In that case Baroness Hale observed, “The distinction between the two types of ‘why’ questions is plain enough. One is what has caused the treatment in question and one is its motive or purpose. The former is important and the latter is not.”

[25]Under s.47C of ERA 1996, the question likewise is why the Respondent treated the Claimant as it did and whether the reason for its treatment of her is prescribed under the Regulations.

[26]S.18 of EqA 2010 is distinct from s.13 of EqA 2010, in that a complainant under s.18 need only establish that they have experienced unfavourable treatment on the prohibited ground, as opposed to less favourable treatment. It is not a comparative exercise that requires the identification of actual, hypothetical or evidential comparators. However, the Claimant’s s.18 EqA 2010 claims do not succeed simply because she was pregnant or suffered illness as a result of pregnancy and experienced unfavourable treatment. Nor do they succeed simply because but for being pregnant or suffering illness as a result of pregnancy, she would not have experienced unfavourable treatment. There must be facts from which we could conclude, in the absence of an adequate explanation, that the Claimant was discriminated against. This reflects the statutory burden of proof in s.136 of EqA 2010, but also long established legal guidance including by the Court of Appeal in Igen Limited v Wong

[2005] ICR931

[27]It has often been said that a claimant must establish ‘something more’ than merely a protected characteristic and that they have been treated unfavourably or less favourably, albeit what is required to be established need not necessarily constitute a great deal more - Lord Justice Sedley in Deman v The Commission for Equality and Human Rights [2010].

[28]The grounds for any treatment often have to be deduced or inferred from the surrounding circumstances and in order to justify an inference one must first make findings of primary fact from which the inference can properly be drawn.

[29]In a s.13 EqA 2010 complaint this is often done by a claimant placing before the Tribunal evidential material from which an inference can be drawn, that they were treated less favourably than they would have been treated if they had not been a particular race, gender, religion, etc., Shamoon v Chief Constable of the Royal Ulster Constabulary [2003].

[30]Comparators provide evidential material, but ultimately they are no more than tools which may or may not justify an inference of discrimination on the relevant protected ground. The usefulness of any comparator will, in any particular case, depend upon the extent to which the comparator’s circumstances are the same as the claimant’s. The more significant the difference or differences the less cogent will be the case for drawing an inference. In the absence of actual comparators whose treatment can be contrasted to the claimant, the Tribunal can have regard to how the employer would have treated an hypothetical comparator. Otherwise, particularly in s.18 cases where a claimant need only establish unfavourable as opposed to less favourable treatment, some other material must be identified that is capable of supporting the requisite inference of discrimination. This may include a relevant statutory code of practice. Discriminatory comments made by the alleged discriminator about the claimant may, in some cases, also suffice. Unconvincing denials of a discriminatory intent advanced by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision or action might in some case suffice. Discrimination may be inferred if there is no explanation for unreasonable or unfair treatment. This is not an inference from the unreasonable or unfair treatment itself, but from the absence of any explanation for it.

[31]Tribunals should always hold in mind that it is important not to conflate unfairness with discrimination; they are two different things.

[32]It is only once a prima facie case is established that the burden of proof moves to the Respondent to prove that it has not committed any act of unlawful discrimination so that the absence of an adequate explanation for the differential or unfavourable treatment becomes relevant, Madarassy v Nomura

[2007] EWCA Civ.33

. Extension of Time to bring a claim in the Employment Tribunals

[33]Tribunals have a wide discretion under s.123(1)(b) of EqA 2010 to determine whether it is just and equitable to extend time in respect of otherwise out of time complaints. The starting point, however, is that time limits are to be applied strictly, Bexley Community Centre t/a Leisure Link v Robertson

[2003] IRLR 434

[34]The burden is on a claimant to demonstrate that it is just and equitable to extend time, Miller v Ministry of Justice [2016]

UKEAT/0003/15/LA

. There is no presumption in favour of an extension of time.

[35]Tribunals are required to consider all relevant factors which may include the factors set out in section 33(3) of the Limitation Act 1980, including the length of and reasons for any delay. In Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ.23

, the Court of Appeal cautioned against Tribunals overly relying on the checklist of factors found in s.33, stating that they should assess all the factors in the particular case which they consider relevant to whether it is just and equitable to extend time.

[36]A relevant consideration is whether any delay has prejudiced the respondent, for example, by impeding its ability to investigate the claim while the matters were fresh. A respondent is obviously prejudiced by having to meet a claim which would otherwise be defeated by a limitation defence, but it may also experience forensic prejudice caused by fading memories, loss of documents, or losing touch with witnesses.

[37]But it not just the potential prejudice to respondents that Tribunals are concerned with. They must equally have regard to the prejudice to a claimant of being denied a remedy in respect of potentially well founded claims.

[38]The EAT in eBay (UK) Limited v Miss T Buzzeo

UKEAT/0159/13

, unreported, held that the first and crucial step for a Tribunal is to make findings as to the date of expiry of limitation and the date on which the claim was in fact lodged to determine whether the claim was out of time and if so, by how much.

[39]In Abertawe Bro Morgannwg University Local Health Board v Morgan

UKEAT/0305/13

, the EAT observed that the first question in deciding whether to extend time is why it is that the primary time limit has not been met and insofar as it is distinct, the second is the reason why after the expiry of the primary time limit the claim was not brought sooner than it was. Findings of Fact and Conclusions

[40]In the findings and conclusions that follow, we shall deal first with the Claimant’s s.18 EqA 2010 complaints, where relevant addressing her s.13 EqA 2010 and s.47C ERA 1996 complaints where these are pursued with reference to the same alleged matters, before going on to consider any outstanding s.13 and s.47C complaints and, thereafter, her complaint that she was unfairly constructively dismissed.

[41]The Claimant transferred to the Respondent’s employment pursuant to the TUPE Regulations, notionally with effect from 26 October 2018. Accordingly, she transferred with her established terms and conditions of employment, including her continuous service from 13 March 2009. The transfer was confirmed some months later in a letter to the Claimant from the Respondent dated 1 April 2019 (pages 218 – 220 of the Hearing Bundle). This documented amongst other things that the Claimant’s job title was Account Manager, that she was contracted to work 37.5 hours per week and that she was eligible for up to 10 weeks’ company sick pay in the event of sickness absence. The letter did not accurately reflect the Claimant’s sick pay entitlement, though this only came to light or became an issue at a later date; it is at the heart of one of the Claimant’s complaints in these proceedings. The Claimant’s company car allowance was stated to be a fraction over £553 per four weekly pay period, equating to approximately £7,190 per annum.

[42]Notwithstanding the letter of 1 April 2019, the Claimant believes that the transfer may not have been effective until 1 March 2019. Although her evidence in this regard in paragraph 1 of her witness statement was not challenged by the Respondent, nothing turns on the timing of the transfer.

[43]Within her first year with the Respondent the Claimant received a pay increase to £44,150 per annum in accordance with the Respondent’s normal pay review arrangements. Her other terms and conditions were unchanged.

[44]Although her formal job title on transfer was Account Manager, the job undertaken by the Claimant was Regional Account Manager (“RAM”), Logistics Sainsbury’s. She was subsequently asked by Mr Kalley to take on the lead role for the Respondent’s Argos account, Argos being a subsidiary of Sainsbury’s. This was in addition to her existing responsibilities and was something she readily agreed to as she was eager to gain a range of operational experience. In any event, we find it reflected her positive ‘can do’ attitude to her work.

[45]Towards the end of 2019, Ms Harper was appointed to a newly created role on the Sainsbury’s contract as Head of Operations and thereafter the Claimant reported to her. They met on 10 February 2020 for the purposes of the Claimant’s Full Year Review (“MiReview”), when the Claimant was assessed as ‘Delivering’, namely achieving objectives set, demonstrating Mitie values and making a valuable contribution. In the Manager comments section, she was described as extremely dedicated and always striving to deliver the best possible customer service to her client, and that she had taken full accountability for and ownership of the Argos client relationship (which was described as extremely challenging and demanding). She was also described as having tremendous potential.

[46]The Claimant completed the penultimate section of the MiReview form, headed ‘What would I like my next role to be and how will I achieve this?’ as follows, “I would like to continue to grow within my current role …” We accept the Claimant’s evidence that she saw any career growth and progression at that point in time as being within her existing role and that she was not seeking a move away from the Sainsbury’s contract or her role as a RAM.

[47]Around this time, the Claimant was asked by Mr Kalley to undertake an informal secondment to the Sainsbury’s Systems contract as performance issues were adversely impacting on the Respondent’s relationship with Sainsbury’s. Anticipated to last for twelve weeks, the secondment was in place for about eight weeks, with a colleague stepping up at some point to back fill or cover the Claimant’s substantive role. It seems that the Claimant was stretched at this point in time as she additionally agreed during her MiReview with Ms Harper on 10 February 2020, that she would take on additional responsibilities including leading Project Management calls. Some of the pressures she would undoubtedly have been under at this time would have abated when the secondment came to an end, coincidentally at or around the time the country entered its first national lockdown towards the end of March 2020, as a result of the Coronavirus pandemic.

[48]We heard evidence that the pandemic generated exceptional demands upon the Respondent’s business and the people working within it.

[49]The Claimant was absent from the business on annual leave the week commencing 6 April 2020. Whilst on leave she discovered that she was pregnant. Although welcome news, the pregnancy was unplanned and unexpected. Two different dates are given in the Respondent’s List of Issues as regards the start of the Claimant’s protected period, namely 7 and 13 March 2020. However, as the Claimant somewhat wryly observed in the course of her evidence, she evidently had some hand in the matter of her pregnancy. Her child was conceived on 13 March 2020, with the protected period coming to an end on 10 June 2021 when her maternity leave ended.

[50]The parties disagree as to when Ms Harper and Mr Kalley first learned of the Claimant’s pregnancy. Ms Harper’s evidence is that she was told in May 2020 after the Claimant had informed Helen Young, HR Business Partner that she was pregnant. Mr Kalley states that he was first made aware of the Claimant’s pregnancy towards the end of May 2020, possibly after the Claimant had a short period of pregnancy related ill health absence.

[51]Whilst there is seemingly no mention of the Claimant’s pregnancy in any communications between the parties in April and May that year, certainly not in the reasonably extensive documents included in the Hearing Bundle, nevertheless we accept the Claimant’s evidence that she told Ms Harper and Mr Kalley that she was pregnant at some point during the first week that she returned from her April 2020 leave.

[52]The disclosure by a woman that she is pregnant is a matter of particular importance to her, not least when that disclosure is to colleagues within a workplace. It is something which, in our judgement and experience, a pregnant woman is much more likely to recall that her colleagues, involving as it does the entrustment of sensitive personal information to others at a time when the woman may perceive that she and her unborn child are vulnerable.

[53]The Claimant enjoyed a good relationship with Ms Harper and Mr Kalley. Indeed, she and Ms Harper enjoyed a close working relationship, akin to a friendship. It explains why she might have felt comfortable in disclosing the news of her pregnancy to them earlier in the pregnancy than might otherwise often be the case. In any event, there was a more immediate, pressing reason for her to share the news of her pregnancy, namely the significant uncertainties and essentially unknown risks to expectant mothers and their unborn children as a result of Covid-19 in April 2020. Whilst we find that the Claimant disclosed to Ms Harper and Mr Kalley that she was pregnant during the week commencing 13 April 2020, none of the issues in this case turn on that timing.

[54]The Claimant formally notified her pregnancy to the Respondent on 23 July 2020 once she was in receipt of Form MATB1 at 20 weeks pregnant. The Claimant initially planned to commence her maternity leave on 7 December 2020, which would have coincided with her child’s expected date of birth, and to return to work on 10 May 2021 after 22 weeks’ maternity leave. Issue 3(a)

[55]The Claimant complains that Mr Kalley stopped undertaking one-to-ones with her upon learning that she was pregnant. The evidence in this regard is somewhat limited, lacking any further specific detail in terms of the alleged timings. The relevant context is that the Claimant reported directly to Mr Kalley during the short secondment already referred to. On the Claimant’s own evidence her role was in flux during this time, with the assumption of myriad additional responsibilities. Ms Harper was new to her role and finding her feet. The secondment was implemented on an informal basis and the Claimant’s reporting lines were further blurred when her colleague back filled on a short term basis. The secondment would seem to have come to an end earlier than expected at or around the time when the world was thrown into turmoil as a result of the pandemic. It is hardly surprising therefore against this backdrop that the transition of the Claimant from Mr Kalley’s management and supervision back to Ms Harper may not have coincided exactly with the Claimant’s resumption of her substantive role and it explains why Mr Kalley may have remained involved beyond the end of the secondment. In our judgement it is pure happenchance if Mr Kalley stopped undertaking one to ones with the Claimant around the time he learned she was pregnant. There would have to be something more for us to infer this was because the Claimant was pregnant as opposed to because she had resumed her substantive role. Moreover, we would in any event question whether the Claimant could reasonably have regarded what happened as being to her detriment; beyond the fact that one-to-ones with Mr Kalley ceased, there is no discernible detriment, it having not been suggested by the Claimant that the one-to-ones were not then taken forward by Ms Harper as her line manager in the normal way.

[56]The Claimant’s s.18 EqA 2010 complaint in respect of this issue is not well founded. Issue 3(b)

[57]It is not in dispute that the Claimant was underpaid her car allowance in the sum of £142.86 whilst absent from work as a result of pregnancy related ill health. The Claimant claims that Ms Harper was responsible for the underpayment, whereas the Respondent asserts that it was entirely due to a system error within its SAP system. We can deal with the matter relatively briefly. In so doing, we observe that the Claimant has rather lost sight of the woods for the trees on this particular issue.

[58]The Claimant raised a query with Helen Young about the matter at 0836 on 27 May 2020, (page 282 of the Hearing Bundle). By 1425 on the same day, Sam Curry, Payroll Benefits Supervisor at the Respondent’s Business Support Centre in Bristol, had acknowledged an error and confirmed that £142.86 would be paid to the Claimant (page 287 of the Bundle). The Respondent employs many thousands of people. There is no suggestion that Mr Curry knew the Claimant, let alone that she was pregnant, or that he had had any previous dealings with her.

[59]Mr Curry apologised to the Claimant for any confusion and inconvenience caused. From the outset he explained that there had been a system issue. The Claimant has not explained to us and did not explore with the Respondent’s witnesses why Mr Curry might have lied to her in that regard or covered up for Ms Harper. His email evidences a prompt, spontaneous, genuine explanation for an error in her pay, one that we have no hesitation in accepting at face value as an inherently credible, indeed the only likely explanation for the error in her pay.

[60]Although Mr Ryan’s absence outside the jurisdiction and inability to give evidence remotely meant that we did not hear his testimony, the evidence in his witness statement on this issue is equally straightforward and inherently credible.

[61]The Claimant’s persistence in maintaining that there must have been some wrongdoing on the part of Ms Harper is not objectively well founded, rather we think it reflects her mistrust of the Respondent which has been exacerbated by the issues and tensions that have arisen in the course of these proceedings.

[62]Critically, on this issue, the Claimant did not challenge Ms Harper in terms of her evidence in her supplementary witness statement, specifically at paragraph 1.17 in which she states that she does not have access to the Respondent’s payroll systems or payroll data to be able to influence the Claimant’s pay, including any ability to instruct or make deductions from her pay.

[63]In our judgement, the underpayment of £142.86 was the result of a genuine system error and nothing whatever to do with the Claimant being pregnant or planning to take a period of maternity leave. Her s.18 EqA 2010 complaint does not succeed. Issue 3(c)

[64]The Claimant complains that a job advert was released that explicitly precluded pregnant women from applying for the role. The Claimant addresses the matter in paragraphs 24 and 25 of her witness statement. The role in question, a Programme Manager role, to which the Claimant was in fact appointed with effect from 1 July 2020, is at the heart of various other complaints by the Claimant in these proceedings. There is something of a contradiction at the heart of the complaint, in that on the one hand the Claimant suggests that pregnant women, presumably including herself, were excluded from consideration for the role, yet she also goes on to complain that she was pressured into taking on the role, indeed effectively manoeuvred into it, notwithstanding her documented career aspirations recorded in her February 2020 MiReview. We have struggled to reconcile the two complaints. Be that as it may we certainly recognise why a pregnant woman might consider that they were being disadvantaged by being excluded from consideration for a role if there was no obvious reason why the role could not safely, and with adjustment if necessary, be performed by a pregnant woman. The offending advert is at page 312 of the Bundle.

[65]It was a male colleague, Richard Digger who questioned the relevance of the person requirements within a matter of minutes of Helen Young circulating a link to the role to the Claimant and a number of other colleagues. Within a further few minutes the advert had been revised so that pregnant women were not excluded from applying for it. The speed with which the issue was addressed makes us confident that it was purely an error on the part of the Respondent and that the purported exclusion on pregnant women applying for the role had been carried over from another job advert which had been used as a template. We do not lose sight of the fact that this was at the height of the pandemic when pregnant women were considered potentially at risk, particularly in public facing roles, so that it is understandable why certain other positions might have been advertised with the caveat that applications from pregnant women could not be considered. We are satisfied beyond doubt that there was no attempt to exclude the Claimant or other pregnant women from consideration for the role of Programme Manager and indeed, that the Claimant did not feel excluded from applying for it. The only reason that she did not immediately apply for the role was because she did not consider that it aligned with her career aspirations at that time. The Claimant did not consider at the time that she had been disadvantaged in any way by the job advert wording, even if she has since come to regard it as being to her detriment. Given that it reflected an error that was quickly correctly, in our judgement a reasonable worker would not have taken the view that it was to their detriment. The s.18 EqA 2010 complaint is not well founded.

[66]For the same reason, we do not consider the Claimant to have been discriminated against on grounds of her sex contrary to s.13 EqA 2010 since the wording reflected an error on the part of the Respondent rather than any intention to exclude the Claimant or other women from being considered for the role. Issues 3(d) to (h)

[67]We turn then to the question of whether the Claimant was pressured or manipulated to change role from RAM to Programme Manager, and her related complaints regarding comments allegedly made by Ms Harper, Mr Kalley and Ms Young between 9 and 12 June 2020.

[68]The Respondent accepts that Ms Harper said to the Claimant that she was “not taking the bait” in respect of the Programme Manager role, further that, “You don’t want to be up and down the motorway with a new baby at home, you don’t want to be dealing with the nit shit in operations, this [Programme Manager] role will be perfect for you”. The Respondent denies that Mr Kalley said to the Claimant that, “…being more admin based at home will benefit you now your circumstances have changed”. Whilst it does not actively deny Ms Young’s alleged comment that, “the role will be a perfect fit for you and was put together with you in mind”, the Respondent puts the Claimant to proof in this regard. Ms Young was not sufficiently well to give evidence and there was no witness statement from her.

[69]Given that the Claimant has accurately recalled very specific comments by Ms Harper from June 2020, the question in our minds is why she might nevertheless be mistaken in relation to Mr Kalley and / or Ms Young. We find she is not mistaken in her recollection as to what each of them said at the time. The accuracy of her recollection in relation to Ms Harper enables us to be confident that she has equally accurately remembered what Mr Kalley and Ms Young said to her.

[70]As regards the Programme Manager role, it is not in issue that the Claimant was considered to have a particular skill set that the Respondent was keen to utilise to the benefit of the business. As Ms Harper and Ms Young said, the Programme Manager role was thought to be a perfect fit for the Claimant. We are satisfied that it was a genuine role and that whilst Ms Harper, Mr Kalley and Ms Young may have had the Claimant firmly in mind for the role, it was certainly not contrived in order to remove the Claimant from her substantive role. Ultimately, had the Claimant declined to apply for the role of Programme Manager, we are satisfied that the Respondent would have left the Claimant in her existing role and recruited someone else to the Programme Manager role notwithstanding the Claimant was their preferred candidate. It may be said that the Respondent acted in furtherance of its own selfish commercial interests in the matter, but that is not the same as having been influenced in the matter by the Claimant’s pregnancy or pending maternity leave, or indeed her sex.

[71]There is no evidence before us from which we might infer that the Claimant’s pregnancy and expected absence on maternity leave would cause difficulties for the Respondent, particularly in its relationship with Sainsbury’s, in the specific context that she was a RAM, such that they wanted to secure her transfer to a less operational, client facing role. Even if we accept that the Claimant experienced a degree of pressure to apply for the Programme Manager role, any such pressure was not brought to bear for a prescribed reason. In terms of her section 13 EqA 2010 complaint, we are satisfied that a man in her situation would have been treated no differently.

[72]We have given careful consideration to whether stereotypical assumptions were operating in the minds of Ms Harper, Mr Kalley or Ms Young, namely that the Claimant would prefer to spend more time at home with her child and / or that her career aspirations or expectations would likely diminish once she had a young baby to care for. Notwithstanding the Claimant’s comments documented in her February 2020 MiReview Form, we accept Ms Harper’s evidence that her comments to the Claimant reflected her genuine understanding that the Claimant had felt conflicted about having not spent as much time as she might have done with her first child after he was born, even if this had been some years earlier. In particular, we accept that Ms Harper saw the Programme Manager role as a significant strategic opportunity for the Claimant with echoes of how she had herself procured career progression to the next level. If Ms Harper can be said to have made any assumptions, it was that the Claimant was ready and enthusiastic for the next step in her career. It was not a limiting assumption on her part in any way related to pregnancy of maternity.

[73]Ms Young’s comments mirrored Ms Harper’s comments almost exactly. Although ineloquently expressed, particularly given that the three individuals had evidently discussed the matter amongst themselves, we conclude that Mr Kalley’s remarks likewise simply mirrored Ms Harper’s understanding that the Programme Manager role would be attractive to the Claimant and that they do not betray stereotypical, limiting assumptions on his part as to the Claimant’s career aspirations as a pregnant woman. Without more and notwithstanding his later comments in October 2020, to which we shall return, we do not infer that Mr Kalley was encouraging the Claimant into the Programme Manager role because it was somehow inconvenient for her to remain in role as a RAM whilst pregnant or subsequently during any period of maternity leave or thereafter once she was a working mother with a very young child to care for.

[74]In the circumstances, the Claimant’s various s.18 EqA 2010 complaints in respect of Issues 3(d) to (h) are not well founded; likewise, her s.13 EqA 2010 complaint in respect of Issue 3(d).

[75]We shall return to the question of whether the Respondent acted in breach of trust and confidence in steering the Claimant towards the Programme Manager role. Issue 3(i)

[76]The Claimant alleges that Mr Kalley pressured her to take a short period of maternity leave, routinely asking her how long she would be off for and stating that a return date of April 2021 would be advantageous. The comments are alleged to have been made between April and July 2020. Whether as a result of her inexperience of litigation or due to an oversight on her part, the Claimant has not addressed the matter in her witness statement. She has the burden of establishing the primary facts upon which her various complaints are based and on this issue she has failed to discharge that burden upon her. There is simply no evidence before the Tribunal to enable us to make any specific findings of fact on this issue. In the circumstances any complaints pursued with reference to this matter cannot succeed. Issue 3(j)

[77]The Claimant complains that the Respondent failed to carry out a risk assessment on her during her pregnancy. The Respondent accepts that no such assessment was undertaken in relation to her. It has sought to explain its failure to do so by reference to a lack of communication between Ms Young and Mr Kalley which led each of them to incorrectly assume that the other was responsible for the matter and had it in hand. Having listened to Mr Kalley’s evidence on both this issue and more generally, and having considered the broader evidence in the case as to his management style, we find that he simply gave no thought to the matter rather than having thought about it and incorrectly assumed it was in hand. In the course of his evidence, Mr Kalley demonstrated limited knowledge or awareness of HR issues, including regarding employers’ responsibilities towards their pregnant employees. He had a particularly limited grasp of the Respondent’s policies and procedures; we observe that he might well benefit from further training and personal development in this area.

[78]We have referred already to the provisions of Regulations 16 and 18 of the Management of Health and Safety at Work Regulations 1999. An employer is not legally required to take specific action in relation to individual employees under Regulations 16 and 18 until notified in writing by an employee that she is pregnant. That does not, of course, mean that the employer will not potentially breach its other obligations to the employee or act in contravention of its own documented policies and procedures should it fail to take action sooner to identify and address potential risks to health and safety.

[79]The Respondent’s Maternity Guide, (pages 116 – 122), envisages that risk assessments will be completed for pregnant employees, though the Guide is unclear whether such assessments mirror the Regulations in so far as they are dependent upon the Respondent having first received a formal written notification from an employee that they are pregnant. The Maternity Guide documents that risk assessments will be completed by the pregnant employee with their Manager. In this case we believe that would have been Mr Kalley, to whom we understand the Claimant then reported following her appointment as Programme Manager. The responsible person was certainly not Ms Young. The Manager Guide also specifies that any assessment will include an assessment of the mental demands of the job, including hazards, with the potential for referral to Occupational Health as necessary. We shall return to this issue again in a moment when we consider Issue 3(r), namely the Respondent’s response to the Claimant’s email of 16 October 2020.

[80]In our judgement, until the Claimant formally notified her pregnancy on 23 July 2020, the Respondent’s failure to complete a risk assessment in relation to her, was because Mr Kalley simply gave the matter no thought rather than because she was pregnant and because that fact somehow caused him to be dismissive or indifferent to the need for an assessment. However, for the reasons below, we infer that the position changed in October 2020. We shall return separately in due course to the question of whether the Respondent breached trust and confidence. Issue 3(r)

[81]What then of the Respondent’s response to the Claimant’s email of 16 October 2020? The Claimant complains that having expressed certain concerns in an email sent on 16 October 2020, these were ignored by Mr Kalley and not dealt with by the Respondent in line with policy. The email in question is at pages 470 and 471 of the Bundle. It was sent at 12:04pm. It was addressed to Mr Kalley and Ms Harper. Given its length we do not recite its contents in full, though note in summary that the Claimant disclosed she had experienced a panic attack on Monday 12 October and again on Thursday 15 October. The latter attack was sufficiently disabling that the Claimant had to be helped out of the bath by her 12 year old son, something that added to her distress. In her email she wrote of significantly disrupted sleep and that she was “really struggling” with aspects of the role, as well as concerned that she might become seriously ill with work stress and anxiety. She clearly identified the likely causes of her issues as being work related. She said she did not want her email to read like a grievance, but that she was struggling mentally and physically with her workload. Her email concluded with a request to establish a handover plan to resolve the situation. In our judgement her email plainly called for urgent action on the part of the Respondent as well as an immediate response. We note in this regard that the Respondent’s duties under the 1999 Regulations had been triggered approximately 12 weeks earlier and, amongst other things, that on receipt of the Claimant’s email of 16 October 2020 the Respondent should have given consideration to altering the Claimant’s working conditions or hours of work, alternatively redeploying her to a suitable alternative role, or failing that suspending her on full pay. They were already aware that the Claimant was experiencing work related stress as a result of the alleged behaviour of an employee within Sainsbury’s with whom she interacted on a regular basis. Aside from the 1999 Regulations, there was an obvious and pressing need for a risk assessment to assess amongst other things whether the Claimant was experiencing pregnancy related ill health that might trigger maternity leave once she was within the final four week period before her baby’s due date. However, none of this happened. The Respondent’s own mandated pregnancy risk assessment form remained uncompleted and the Maternity Guide was not adhered to. We consider the Respondent handled the situation ineptly. A call was not set up with the Claimant until Monday 19 October 2020 which was then altered as it clashed with a medical appointment scheduled for Mr Kalley, prompting the Claimant to express feelings of disappointment and worthlessness and to take a day’s sick leave.

[82]As the Claimant did, we acknowledge that Mr Kalley was in the early weeks of his recovery following a heart attack. But that does not, in our judgement, explain or justify the Respondent’s treatment of the Claimant. Mr Kalley’s attitude and approach are indicated in two respects. Firstly, he did not respond directly to the Claimant; in the context of the difficulties she was then experiencing, we regard that as particularly telling. Secondly, his immediate thoughts in the matter are captured in a short, unsympathetic, indeed insensitively expressed email to Ms Young sent at 1230 on 16 October 2020 in which he wrote, “I was expecting this email as Nicola has become very emotional and tearful especially over the last week or so. I am very frustrated with this as she is certainly not overworked and we have been very supportive in helping her manage her workload. Can we please have a chat as I suggest we allow her to go next week if she wants, on unpaid leave until her paid leave kicks in. I know we have to deal with this very sensitively and I want to try and support Nicola as much as I can but we need to move this forward and if Nicola does go I am sure that Clare can pick this up and we can get Paul to support if required.”

[83]We consider that Mr Kalley was stereotyping the Claimant as an emotional, hormonal pregnant woman and that in the particular circumstances his description of her as emotional and tearful was dismissive and belittling. The inference was that she was not fully in control of her emotions because of the pregnancy and that she was making unreasonable demands as a result, when in fact she was experiencing significant work related stress in the advanced stages of her pregnancy, had suffered two panic attacks in short succession, felt overwhelmed, was worried about letting others down but equally concerned that she might become seriously unwell. Rather than genuinely wanting to support the Claimant as he professed, Mr Kalley instead wanted the Respondent to be seen to be supportive of her in circumstances where he effectively wanted her out of the way as soon as possible so that others could step up in her place. He immediately identified the solution as unpaid leave pending the Claimant’s maternity leave, rather than giving any further thought to how the Claimant might be supported and reassured, including as the 1999 Regulations required by making an alteration to her working conditions or hours of work, alternatively by redeploying her to a suitable alternative role and failing that by suspending her on full pay pursuant to s.68 of ERA 1996. Mr Kalley’s proposed approach to the situation was not only significantly focused upon his own needs and interests in the matter, more pertinently it was not legally compliant and did not reflect the Respondent’s own documented guidance which presumably was intended to ensure that the Respondent complied with applicable Laws and Regulations.

[84]Mr Kalley asserts at paragraph 34 of his witness statement that he was very sympathetic to the Claimant’s plight. His email to Ms Young of 16 October 2020 does not support the assertion. We find his denial of any discriminatory intent on his part, as well as his assertion that he was sympathetic to the Claimant to be unconvincing. In responding to the situation, he failed to engage in any meaningful way with the events or issues as described by the Claimant. Far from his email indicating concern on his part, it evidences frustration, even irritation, with the Claimant who he perceived as a problem, pregnant employee who was inconveniencing him.

[85]These are facts and circumstances from which we infer that Mr Kalley’s response or lack of adequate response to the situation, specifically his failure to respond to the Claimant’s email as well as his failure following receipt of the email to ensure that a risk assessment was undertaken in relation to her, was because the Claimant was pregnant and seeking to exercise her right to maternity leave. The Respondent has failed to provide a non-discriminatory explanation for Mr Kalley’s email and his treatment of the Claimant.

[86]The Claimant’s complaints identified as Issues 3(j) and (r) are well founded, in the case of Issue 3(j) with effect from 16 October 2020. Issue 3(k)

[87]The Claimant asserts that the Respondent failed to respond to queries raised in her maternity plans about her pay entitlement. Her complaint is factually well founded insofar as Mr Kalley, we find, failed to follow the Respondent’s Managers Guide insofar as he did not advise the Claimant that People Support would write to her upon receipt of her MATB1 to outline her maternity pay. It took the Respondent nearly four months to write to the Claimant confirming her entitlement in that regard.

[88]We conclude that Mr Kalley did not familiarise himself with the Managers Guide or other relevant documents. In paragraph 28 of his witness statement, Mr Kalley acknowledges that mistakes were made, but states that these were not deliberate, rather they reflected high workload within the payroll department. We find that he was not on top of the issue, leaving it to others to do whatever might be necessary and failing to take ownership of an issue that was in fact his responsibility. Had he acted on a timely basis, the issue in relation to the Claimant’s maternity pay, namely that she was entitled to ten weeks rather than eight weeks of company maternity pay might have been identified and addressed much sooner rather than, as was the case, towards the end of 2020 with the result that the Claimant was paid incorrectly in January 2021, some six months or so after she had formally notified her pregnancy, which under the Respondent’s own policy should then have triggered a written outline of her anticipated maternity pay.

[89]Whilst this episode does not reflect entirely well upon Mr Kalley, who seemed inclined to blame others in the matter, notwithstanding the events of October 2020, we have not identified more from which we might infer that the shortcomings were because the Claimant was pregnant. Once again, the innocent, if somewhat unsatisfactory explanation, is that Mr Kalley was ill-informed, gave little if any thought to the matter and assumed that others would deal with the Claimant’s maternity leave. Whilst the s.18 EqA 2010 complaint does not succeed, we shall return in due course to the question of whether trust and confidence was thereby destroyed or seriously damaged. Issue 3(l)

[90]The Claimant complains that Mr Kalley failed to support her in her use of Keeping in Touch days whilst on maternity leave in line with the Respondent’s Maternity Procedure. The section on Keeping in Touch days is light touch (page 144 of the Hearing Bundle), merely stating that employees should talk to their Managers to agree the arrangements for keeping in touch. This is also reflected in the Manager’s Guide to the Maternity process which states that Managers should discuss with the employee prior to going on leave whether they wish to utilise the Keeping in Touch days and if so, what they would like to use them for and when. There is no evidence that any such discussion was initiated by Mr Kalley with the Claimant, notwithstanding she had completed her notification form on the basis that she may wish to consider Keeping in Touch days. Indeed, her email to Mr Kalley of 10 February 2021 (at page 548), following her first Keeping in Touch day, evidences that there was no such discussion and that Mr Kalley essentially left it to the Claimant to identify for herself when she might best use her Keeping in Touch days. Even then there is no evidence of Mr Kalley positively engaging with the Claimant in response to her proposals, with Ms Young and Ms Lowcock seemingly taking the lead and prompting Mr Kalley to give his approval.

[91]In spite of having received an enthusiastic email from the Claimant, there is no evidence in the Hearing Bundle that Mr Kalley responded directly to the Claimant, let alone that her enthusiasm is reciprocated. Instead his three word email to the Respondent’s payroll team was, “This is approved”.

[92]Whilst his ongoing failure to engage as a Manager raises questions in our minds, we ultimately conclude that it reflects poor management and poor communication on his part rather than supporting an inference of discrimination. As above, we shall return to the question of whether there was a breach of trust and confidence. Issue 3(m)

[93]Linked to the issue above, the Claimant complains that she was prevented from taking part in the MiReview process by Mr Kalley on or about 22 February 2021 and again on 8 March 2021. She addresses the matter at paragraphs 59 to 61 of her witness statement. She emailed Mr Kalley on 22 February 2021 with an update following her second Keeping in Touch day which she described as a success and which generated a relatively muted response from Mr Kalley. She wrote, “I know I have missed the MiReview process while being off on maternity leave but I am happy to have something completed if you wanted to use the time on the 8th to do this. I am happy either way.” The email speaks for itself. The Claimant was not saying that she felt there should be a review, she had no particular view in the matter and was content to leave the decision to Mr Kalley. His response on 25 February 2021 was, "We will have a general catch up and don’t overly worry about your MiReview as we will do that when you are back so we can discuss and agree objectives then.”

[94]It makes sense that the Claimant’s objectives would be discussed and agreed at the point of which the Claimant returned from maternity leave, rather than as part of her Keeping in Touch days when the Claimant was not reasonably in a position to execute any agreed objectives. Mr Kalley was not seeking to avoid a MiReview with the Claimant, rather to schedule it at a more appropriate point in time. Had the Claimant felt that she was being excluded from the MiReview process or that her email of 22 February 2021 had been misunderstood, she might have responded to Mr Kalley’s email of 25 February 2021 and pushed back on the issue. She did not do so, which further evidences to us that she had no particular view in the matter and agreed with Mr Kalley’s proposed approach. The Respondent’s ET3 may well have pleaded the Respondent’s position on this issue on the basis of a misunderstanding regarding the 22 February 2021 email, namely that it emanated from Mr Kalley, but nothing turns on the error. The available evidence does not support that the Claimant was precluded from taking part in the MiReview process.

[95]Given our findings, the Claimant’s complaint cannot succeed in the alternative under s.47C of ERA 1996 or s.13 of EqA 2010 (Issues 4.11(a) and 2.9(Act 3) respectively). Issue 3(n)

[96]The Claimant’s complaint that she was discouraged from returning to work in conversations with Ms Young on 22 February and 8 March 2021, is no longer pursued by the Claimant. Issues 3(o) to (q)

[97]The Claimant complains that her return to work Interview on 10 June 2021 was inadequate. She additionally alleges that Mr Kalley told her during their discussion that Clare Orton would no longer be reporting to her and that he removed her training opportunities. The allegations are addressed respectively at paragraphs 67 and 68 and 52 to 57 of the Claimant’s and Mr Kalley’s witness statements.

[98]The Respondent’s ‘Maternity checklist for Managers’ states that when employees return after maternity leave Managers should complete a ‘Return From Extended Leave form’ and submit this to People Support. The Respondent operates ‘Return to Work Plans’ which include induction arrangements with built in review dates to ensure an effective return to work. The checklist reminds Managers that a risk assessment should be completed if the employee has given birth in the last six months or they are breast feeding. A Return to Work Plan was seemingly not completed for the Claimant, as the Respondent acknowledged in its decision on her grievance. We find that Mr Kalley failed to give active thought to whether a risk assessment was required for the Claimant; there is no evidence for example that he enquired whether she was breast feeding. A Return to Work Plan having not been completed, review dates were not built in.

[99]Mr Robertson’s grievance outcome letter suggests that the Claimant’s return to work was handled in a similar way to how it would have been handled under the formal structured process. However, we were not taken to any evidence to support this. Instead, we find that Mr Kalley dealt with the Claimant’s return to work in such a casual and unstructured way, and that essential checks and safeguards were overlooked, particularly in terms of ensuring the Claimant’s health and wellbeing as the mother of a very young child.

[100]When interviewed by Mr Robertson on 2 November 2021, Mr Kalley said there was no reason why the return to work interview had not been carried out. He referred to there having been informal undocumented chats. This stands in contrast to his witness statement in which he seeks to suggest some greater depth and structure to their meeting of 10 June 2021. We find that the conversation was not structured or detailed in the way that is now suggested by him. We prefer the Claimant’s evidence that it was an unsatisfactory, somewhat perfunctory discussion during which Mr Kalley did not discuss with her the events which had led to her commencing her maternity leave earlier than planned, or seek to identify with her whether she needed any particular support in terms of her return to work, whether because of those events or otherwise. The Claimant’s account of her return to work discussion with Mr Kalley, which she set out in some detail in her grievance (page 598), is consistent with what we observe to be Mr Kalley’s approach to managing workplace issues. He is not someone who is guided by processes or procedures in his interactions with others, indeed he seems to have limited awareness of the Respondent’s policies, procedures and practices.

[101]We accept the Claimant’s evidence that comments by Mr Kalley in the course of their discussion on 10 June 2021 led the Claimant to believe that Clare Orton would no longer be reporting to her. When interviewed by Mr Robertson in connection with the Claimant’s grievance, Ms Harper stated that Ms Orton was to remain under her line management whilst certain large projects were completed (page 777). We can understand why the Claimant came away from her discussion with Mr Kalley on 10 June 2021 with the impression that this was a permanent change, even if Ms Orton herself had a different understanding and believed that she would resume reporting to the Claimant on her return from maternity leave.

[102]The Claimant expressed her sense of disappointment around the arrangements, as she understood them, in an email to Mr Kalley on 20 June 2021. If she was labouring under a misunderstanding, this was an obvious opportunity for Mr Kalley to allay her concerns. However, he failed to do so. Whilst we find that her role was not fundamentally changed as she believed, and that it was intended that Ms Orton would resume reporting to her, Mr Kalley’s communications with her on this issue could have been clearer, in particular had he followed the relevant checklist and ensured there was a documented Return to Work Plan in place and, failing that, by simply responding to the concerns identified in the Claimant’s email.

[103]As regards the Claimant’s further complaint that Mr Kalley removed training opportunities from her, specifically that she had previously been scheduled to undertake a Project Management Apprenticeship but Mr Kalley struck this from his list without discussing the matter further with her, the Claimant did not raise any concerns in this regard in her email of 20 June 2021 notwithstanding it outlined other concerns she then had, including that Ms Orton would apparently no longer report to her. She only subsequently raised the matter in her formal grievance of 3 September 2021. Thereafter, the issue was briefly touched upon by Mr Robertson when he interviewed Mr Kalley on 2 November 2021. Mr Kalley told him it had been the Claimant’s decision not to pursue the Apprenticeship at that time but accepted that there was no evidence to support that this was the case and suggested to Mr Roberston that Ms Young might be able to assist on the issue. We have not been able to identify within the notes or transcript of Mr Robertson’s meeting with Ms Young that this issue was explored further in their meeting.

[104]We find on the balance of probabilities that Mr Kalley did strike the Apprenticeship from his list without first discussing the matter with the Claimant. We conclude that his focus on operational issues caused him to prioritise these over learning and development opportunities which he viewed as secondary to the needs of the business.

[105]Mr Kalley’s handling of the return to work discussion, including his comments regarding Ms Orton and the Apprenticeship, reflects a broader issue, namely his failure to adequately manage the Claimant’s return to work following her maternity leave, particularly in circumstances where her leave had commenced early as a result of ill-health. His failure to manage her return was compounded by communications that were lacking in clarity and by his lack of adherence to the Respondent’s own processes and procedures. However, we do not infer that this was because he Claimant had been pregnant, taken a period of maternity leave, or was a woman. In the latter regard we consider that a man who returned from a period of extended leave would have experienced the same lack of clarity and failure on Mr Kalley’s part to adhere to due process and procedure. The reason why the meeting on 10 June 2021 was handled as it was reflected Mr Kalley’s general approach and communication style already referred to.

[106]Whilst the Claimant’s s.13 and s.18 complaints are not well founded, we shall return to the question of whether trust and confidence was thereby breached. Issue 3(s)

[107]We have already set out our findings and conclusions regarding the Respondent’s response to the Claimant’s email of 16 October 2020. She makes a similar complaint regarding the Respondent’s alleged lack of action when she raised further concerns in an email to Mr Kalley dated 27 July 2021 (page 562). Again, given its length, we do not recite the contents of the email in full. The Claimant submitted a Fit Note and explained that her anxiety medication prescription had been doubled to 100mg. She also disclosed that she was receiving CBT in connection with OCD. She said that she would like to arrange a face to face meeting upon her return to work in the week commencing 6 September 2021 to, “…talk through some of the issues that has lead to this period of absence, but more so to seek support in my return to work after a long period of absence so that I have some kind of structured support around me”

[108]Mr Kalley did not acknowledge or respond to her email. He fails to address the matter in his witness statement so that there is no explanation for his failure to take action on the email. We have given careful thought to whether we should infer from this that the same discriminatory mindset was in play as in October 2020. Whilst Mr Kalley’s lack of explanation is troubling, we hesitate to infer from the events of October 2020 that he continued to be influenced by the Claimant’s pregnancy or maternity over 9 months later, particularly given that the Claimant had by then returned to work. Notwithstanding the absence of any explanation from him, we have ultimately been unable to identify something more from which we might infer that Mr Kalley’s inaction in the matter was because the Claimant had been pregnant and / or exercised her right to maternity leave, including taking compulsory maternity leave, or because she was a woman. Instead, we conclude that he neglected the matter because he expected others, specifically Ms Young and her HR colleagues, to manage the Claimant’s sickness absence. The Claimant was by then no longer within her protected period; to the extent that the matter falls to be considered in the alternative as a complaint of sex discrimination (paragraph 2.9(Act 6) of the List of Issues), we consider that a man who took a period of sickness absence following a period of extended family leave would have encountered the same inaction and lack of response on the part of Mr Kalley. In the circumstances, we conclude that the Claimant was not discriminated against in the matter on the grounds of sex.

[109]We shall return in a moment to the question of whether, in failing to deal with the issues raised by the Claimant, trust and confidence was thereby destroyed or seriously damaged. Issue 3(u)

[110]The Claimant complains that in July 2021 she was subjected to a deduction in sick pay. As with the car allowance issue that arose in May 2020, we are satisfied that this was the result of a genuine error on the part of the Respondent which had nothing whatever to do with the Claimant having been pregnant, on compulsory maternity leave, or exercising her maternity leave rights. The Claimant raised the issue with the Respondent’s payroll team at 1554 on Wednesday 28 July 2021. It was escalated to Mr Kalley within approximately 40 minutes, who requested within a further hour that Ms Young look into the matter. By Tuesday 3 August 2021 the issue was resolved and Mr Kalley authorised a BACS payment of £1,163.29 to the Claimant to make good the outstanding sick pay due to her. There is no basis for us to infer that the Claimant was discriminated against or subjected to detrimental treatment because of a protected characteristic or for a prescribed reason referred to in s.47C of ERA 1996. Issue 3(t)

[111]The Claimant pursues a third complaint regarding Mr Kalley’s alleged failure to respond to or deal with her emails, namely emails sent by her on 2 and 3 September 2021.

[112]On 27 July 2021, the Claimant was certified unfit for work by her GP on the grounds of post-natal depression (page 561). She was certified from 21 July 2021 to 5 September 2021. We have referred already to her email to Mr Kalley of 27 July 2021. There are copy emails in the Hearing Bundle evidencing discussion between Mr Kalley and Ms Young and Mr Lowcock in August 2021 regarding the Claimant’s sick pay entitlement, including Ms Young suggesting a call with the Claimant the week commencing 30 August 2021 to explain the position to her. Mr Kalley sent a brief email to this effect to the Claimant on 1 September 2021. The same day the Claimant was certified unfit for work for a further period of eight weeks, again by reason of post-natal depression.

[113]We accept the Claimant’s evidence at paragraph 79 of her witness statement regarding her conversation with Mr Kalley on 1 September 2021, namely that during the call Mr Kalley asked the Claimant instead about her return to work plans and that her sick pay entitlement was not discussed. Their call lasted two minutes and ten seconds, evidencing to us that it was a relatively perfunctory discussion consistent with what we observe to be Mr Kalley’s management and communication style, including his propensity to avoid detailed discussion of personal issues affecting colleagues. The Claimant was understandably surprised to receive an email the following day from Mr Kalley which referred to her sick pay entitlement given that this had not been discussed during the call. The emails in question are at pages 580 and 581 of the Bundle. The email purported to set out the Claimant’s contractual position in relation to company sick pay, namely that the Claimant was entitled to 10 weeks’ company sick pay and thereafter to SSP only. No previous efforts had been made to discuss the matter with the Claimant. Yet it is clear from the emails already referred to that Mr Kalley and Ms Young were fully aware that the records sought to be relied upon regarding the Claimant’s contractual sick pay entitlement were at odds with her understanding that she would be paid for up to 16 weeks’ absence at full pay and a further 16 weeks at half pay. Indeed, Ms Young had identified at one point that there was a contract on file that potentially conferred a right to six months’ absence at full pay, which was a greater entitlement than even the Claimant was asserting (page 578). Further, they, or certainly Ms Young would have understood that the issue was potentially further complicated by reason that the Claimant had TUPE transferred to the Respondent, meaning that the Respondent would need to consider what the Claimant’s protected terms and conditions were, regardless of what documentation was held on file in relation to her.

[114]On being informed by Mr Kalley on 2 September 2021 that she would revert to SSP as her company sick pay entitlement was limited to 10 weeks, the Claimant responded within a matter of minutes requesting a copy of the contract of employment which Mr Kalley said was held on file in relation to her. Ms Young was copied into the Claimant’s email. Although Ms Young emailed Mr Kalley within a further matter of minutes and provided him with an extract of the contract in question, neither of them sent any immediate response to the Claimant, including even a holding email. The Claimant chased them and the payroll team at 0825 the following day, 3 September 2021, once again requesting a copy of the contract referred to, (page 584 of the Bundle). She received no response or acknowledgment that day.

[115]There was and to date has been no explanation as to why the contract referred to could not have been provided immediately to the Claimant. It would have taken Mr Kalley or Ms Young seconds to forward a copy to her. They certainly had time to message one another. While the issue was outstanding the Claimant would have understood that she would not be paid in respect of her ongoing sickness absence. This is in the context, as both were fully aware, that she had been diagnosed with post-natal depression, had previously experienced anxiety and panic attacks, and was undergoing CBT for OCD.

[116]In our judgement the Respondent had a responsibility to the Claimant to address her request and any reasonable queries regarding her sick pay entitlement without delay and to let her know they had the matter in hand. Instead she went into the weekend having received no further response and with the understanding that her final day of company sick pay was 3 September 2021. Whilst we do not infer that their failure to respond to the Claimant or to provide the documentation requested by her was unlawful discrimination on any prohibited ground or detrimental treatment for a prescribed reason, we return to the issue of whether trust and confidence was thereby breached.

[117]As regards the Claimant’s s.47C detriment complaints, we have already addressed Issues 4.11(a) and (d) above. Issues 4.11(b) and (c)

[118]The Claimant asserts that she was subjected to detriment in contravention of s.47C of the ERA 1996, by reason of Mr Robertson’s alleged failure to adequately deal with her grievance. She complains that there were no notes from Helen Young, no recordings of meetings and that Mr Robertson’s outcome letter did not address whether she had been discriminated against. Whilst we understand that these specific complaints are no longer pursued by the Claimant, in any event we do not consider them to be well founded. Mr Robertson’s detailed outcome letter engages fully with the issues. It runs to some 9 pages. Mr Robertson upheld part of the grievance and offered the Claimant an unqualified apology in that regard, as well as making certain recommendations to the business to address various issues encountered by the Claimant, including tool box talks with all Managers on the Sainsbury’s account to ensure that policies and processes were adhered to. The Claimant may disagree with the outcome to her grievance, but that does not mean that Mr Robertson dealt with the grievance inadequately. We were not taken to evidence in the Bundle, nor was Mr Robertson cross examined in such a way as to enable us to make findings or come to a judgment that his investigation and conclusions were wanting or otherwise outside the band of reasonable responses. It is irrelevant in this regard that we may reached different conclusions to him. And even if there were no notes for Helen Young, no recordings of meetings and the outcome did not specifically address whether the Claimant had been discriminated against, in our judgement this was not because the Claimant was, or had been pregnant or taken maternity leave. At the highest, the Claimant was asserting that the grievance process was handled unfairly or unreasonably rather than in a discriminatory manner. By the time we had heard the evidence in the case, it was apparent that the Claimant had failed to adduce sufficient evidence even to support a finding of unfairness in the grievance process. In any event, the grievance post-dated the Claimant’s resignation and as such was not a factor in her decision to resign her employment.

[119]In summary therefore and in terms of the List of Issues, the Claimant has failed to establish the primary facts sought to be relied upon by her in respect of Issues: 2.9(Acts (3) and (4)); 3(h), (i) and (m); and 4.11(a), (b) and (c) of the List of Issues.

[120]We turn then to the question of whether the Claimant was constructively dismissed. Issue 3(a)

[121]We do not consider that it can be said the Respondent acted without reasonable or proper cause in so far as Mr Kalley stopped undertaking one-to-ones with the Claimant following the end of the secondment. Line management responsibility for the Claimant, including her one-to-ones had reverted to Ms Harper by then. It is not suggested by the Claimant that the one-to-ones were not taken forward by Ms Harper. Issues 3(b) and (u)

[122]Although pay is a fundamental element of the bargain between an employers and their workers, errors in pay are a common occurrence within workplaces. In this case, the May 2020 and July 2021 errors in respect of the car allowance and sick pay were as a result of system issues rather than any carelessness or neglect on the part of the Respondent (we deal separately below with the sick pay issue that arose in September 2021). More importantly, the errors were promptly corrected on being brought to the Respondent’s attention. In the circumstances we do not consider the Respondent to have acted in breach of contract in respect of these matters let alone that it committed a repudiatory breach. The Claimant’s complaints in this regard are not well founded. Issues 2.7(Act 1) and 3(c)

[123]The 9 June 2020 job advertisement resulted from an error on the Respondent’s part and was corrected within a matter of minutes, seemingly before the offending advertisement was seen by the Claimant. Viewed objectively, the Respondent’s actions cannot be said to have been destructive or seriously damaging of trust and confidence, indeed it is difficult for us to see that they could even be said to amount to a breach of contract. Issues 2.9(Act 2) and 3(d) to (g)

[124]In our judgement the Respondent was not entirely open and transparent in its dealings with the Claimant, and indeed her colleagues, in relation to the Programme Manager role. As we have observed already, the Respondent could be said to have acted in furtherance of its own selfish commercial interests in the matter and to an extent assumed or allowed itself to believe that these aligned with the Claimant’s interests. We conclude that some degree of pressure was brought to bear in the matter. The Respondent failed to disclose to the Claimant at the time that proposals were already afoot to restructure the Senior Leadership on the Sainsbury’s account. The presentation dated 20 July 2020 (pages 394 – 408) confirms that the Respondent had undertaken an extensive review of its existing operating model and planned to merge the RAM role with a ZOM role within its retail operations, thereby placing all existing RAMs and ZOMs at risk of redundancy on the basis there would be four new roles for those who were displaced. The plan was to announce the proposals to those who were potentially affected on or around 20 July 2021, with formal consultation commencing the following day. We find that these proposals were already under consideration when the Claimant was approached in connection with the Programme Manager role. If anyone has particular cause to complain in the matter, it is the Claimant’s colleagues who, unlike her, were not encouraged to apply for the Programme Manager role, but instead placed at risk of redundancy a few weeks later. It could be said that she was treated more favourably than they were in being preferred for the role and taken outside the ‘at risk’ pool. As we have already said, it was not a contrived role that was intended to secure the Claimant’s removal from her previous role. Whilst the Respondent was not as open and transparent as it might have been with the Claimant, nevertheless we do not consider by its actions that the Respondent can objectively be said to have destroyed or seriously damaged trust and confidence. Issues 3(j) and (r)

[125]The Respondent failed to undertake a risk assessment in respect of the Claimant during her pregnancy or ahead of or on her return to work following her maternity leave in circumstances where we have determined that it was under a duty to do so. It acted, or failed to act in the matter without reasonable and proper cause, in breach of its duty of care to the Claimant, in breach of its statutory obligations in the matter and in contravention of its own documented policy, procedure and guidance. The health, safety and wellbeing of pregnant workers and women who are returning from maternity leave, including those who may be breast feeding, are a significant consideration. Whether through a lack of relevant training or a lack of thought and attention, or because he failed to prioritise such issues or simply assumed that others would take responsibility for them, Mr Kalley failed to ensure that the organisation discharged its responsibilities to the Claimant. Trust and confidence was thereby significantly compromised, indeed ultimately destroyed, over an extended period of time from at least October 2020 to 6 September 2021 when the Claimant resigned her employment. Mr Kalley’s response or lack of effective response to the Claimant’s emails of 16 October 2020 and 27 July 2021 was particularly inexcusable. Issue 3(k)

[126]Although not in and of itself destructive or seriously damaging of trust and confidence, in our judgement the Respondent failed in its obligations to the Claimant as her employer by not responding to the queries raised in her maternity plans about her pay entitlement. Issue 3(l)

[127]Similarly, in our judgement, Mr Kalley’s communications with the Claimant in the matter of her Keeping in Touch days were not of themselves destructive or seriously damaging of trust and confidence, though they form part of the overall picture of a Manager who failed to deal with the Claimant’s pregnancy and the arrangements for her maternity leave and eventual return to work in a satisfactory manner. His interactions and communications with her fell below the standard that might reasonably have been expected of him as a senior Manager. Issues 3(o) to (q)

[128]The same observations as above can be made in respect of the 10 June 2021 return to work interview, including Mr Kalley’s failure to clarify the position in relation to Clare Orton when the Claimant expressed concerns in the matter and the way in which he communicated with the Claimant around the issue of her Apprenticeship. Issue 3(t)

[129]Mr Kalley’s, and hereafter his and Ms Young’s failure to respond on a more timely basis to the Claimant’s emails of 2 and 3 September 2021 can only properly be viewed in the context of the sub-standard communications that preceded them, including Mr Kalley’s failure to acknowledge or respond to the Claimant’s email of 27 July 2021 immediately before she went sick. As we have already observed, there is no explanation as to why Mr Kalley and Ms Young did not provide the Claimant with a copy of the contract referred to which was relied upon by Mr Kalley when stating that the Claimant had exhausted her right to company sick pay. She had been certified unfit for work due to post-natal depression, was known to have a history of mental health difficulties, including anxiety and OCD, had experienced a significant panic attack in the final weeks of her pregnancy resulting in her commencing her maternity leave sooner than planned, had a young baby to care for and was self-evidently vulnerable. This was not a run of the mill situation in which an employee was querying their pay. Instead, it cried out for an urgent response. The lack of any response exacerbated the situation and the Claimant’s underlying worries. In our judgement the Respondent acted without reasonable and proper cause when it failed to acknowledge her emails or to provide a copy of the contract that had been requested by her. Viewed objectively, its failures in that regard breached trust and confidence as it reasonably indicated to the Claimant that the Respondent was not giving priority to an imminent, significant loss of pay in circumstances where the Claimant rightly believed she had an ongoing contractual right to be paid her normal pay in respect of her continued certified sickness absence. We would have said in the alternative that the Respondent’s lack of timely communication plainly added something to the Respondent’s other earlier repudiatory breaches, such as to amount to a ‘last straw’, even had it not amounted of itself, as we have concluded it did, to a bale of straw that brought down the relationship.

[130]In our judgement, the Claimant did not waive the breaches complained of and affirm the employment relationship. As regards the Respondent’s response to the issues raised by the Claimant’s 16 October 2020 email, the Claimant went sick two working days later and then brought forward her maternity leave to 16 November 2021. She returned to work on 10 June 2021. We do not infer from her return that she thereby affirmed the contractual relationship, nor do we do so from her failure to resign her employment during her maternity leave when she was focused upon caring for her baby. We consider that it was entirely reasonable for the Claimant to take stock of the situation once she returned to work, including having regard to how her return was handled by the Respondent and what support was made available to her. In resigning her employment the Claimant would be giving up secure employment and would evidently need to give careful consideration to the financial and other implications for herself and her family, including how it might affect her career prospects given she then had a very young child to care for. In the event, as we have identified, her return from maternity leave was not handled as well as it might have been and certain communications were lacking. By 27 July 2021 she was certified unfit for work with post-natal depression. Whilst we do not know when she first experienced symptoms consistent with post-natal depression, her email of 27 July 2021 evidently described ongoing issues, including a bereavement and that the Claimant was having CBT for OCD. In the circumstances, there was little or no effective opportunity for the Claimant to reflect on the matter before she went sick again. Against that background, we do not infer that the Claimant waived the breaches and affirmed the contract simply because she remained in the Respondent’s employment following her return from maternity leave. But in any event, applying Kaur, even if, contrary to our conclusions above, the events of 2 and 3 September could be said not to amount to repudiatory breaches of contract, in our judgement they were of a similar character to the October 2020 breaches and undoubtedly added something to them; in our judgement, viewed objectively they further demonstrated that the Respond no longer intended to be bound by its obligations such that the Claimant was entitled to resign her employment. It is an academic point since in our judgement the Respondent’s cumulative treatment of the Claimant over the period following her return from maternity leave until 3 September 2021 was of itself sufficiently serious as to be destructive of trust and confidence thereby entitling the Claimant to resign from her employment. It is not relevant that the Claimant resigned partly in response to alleged breaches that have not been upheld within these proceedings. It is sufficient that the Claimant resigned at least in part in response to the breaches upheld by the Tribunal.

[131]In all the circumstances the Claimant has satisfied us that she was constructively dismissed. Her dismissal was unfair since the Respondent acted without reasonable and proper cause in respect of the matters in question. It is not suggested by the Respondent that it had a potentially fair reason within s.98(2) of the ERA 1996 for treating the Claimant as it did or that it acted reasonably in treating such reason as sufficient reason for treating the Claimant as it did.

[132]In terms of her discrimination complaint, it is sufficient that any discriminatory treatment of the Claimant contributed to a material extent to her resignation in order for the Claimant to pursue a complaint under EqA 2010 in respect of her constructive dismissal. We are satisfied that the Respondent’s failure to undertake a risk assessment in respect of the Claimant, together with Mr Kalley’s inaction in October 2020 were material factors in her decision to resign. She wrote in her letter of resignation that her health, safety and wellbeing had been disadvantaged, expanding upon this at some length in numbered paragraph 7 of her letter (pages 595 – 596).

[133]In the circumstances, we consider that the Claimant’s complaint that she was discriminated against was notified to ACAS and thereafter presented to the Employment Tribunals in time, namely within three months of her constructive dismissal.

[134]We would have said in the alternative that it would be just and equitable to extend time in respect of Mr Kalley’s failure to respond to her email of 16 October 2020, including his failure to arrange a risk assessment in response to it, in circumstances where the Claimant was thereafter absent from the business and then on maternity leave until 10 June 2021 and thereafter, absent from work with certified post-natal depression with effect from 27 July 2021 until she resigned her employment on 6 September 2021. Even allowing for that sickness absence, the Claimant notified her claims to ACAS within three months of her return from maternity leave. We cannot identify that any forensic prejudice had been caused to the Respondent in the matter. The only hardship it will suffer if the Claimant could be said to be out of time, is that the Claimant will be permitted to pursue an ‘out of time’ complaint against it. We balance that against the significance prejudice and hardship to the Claimant in being denied a remedy in respect of a well founded complaint that she was discriminated against, particularly in circumstances where the Respondent was in breach of its duty of care and statutory obligations to her as a pregnant woman, as well as its own policy and guidance in the matter.

[135]In our judgement it would be unjust and cause unreasonable hardship to expect a pregnant woman to commence legal proceedings when she is in the advance stages of her pregnancy, not least where as here there are concerns for the health and wellbeing of both herself and the baby, during her maternity leave, or in the months following the birth when she is caring for and potentially breast feeding a new born baby. The Claimant’s health issues we have referred to further reinforce the significant injustice and hardship that would result if time was not extended in this case.

[136]In our judgement, if the s.18 claim could be said to be out of time, the Claimant pursued it within a reasonable period of time, indeed notifying it to ACAS when she was still suffering with post-natal depression, so that it would be just and equitable to extend time for bringing the claim.

[137]The case will be listed for a remedy hearing and case management orders will be issued separately in that regard.

The Law

[1]The complaint of unfair dismissal is well founded. The Claimant was unfairly constructively dismissed.

[2]The Claimant’s claim that the Respondent discriminated against her contrary to Section 18 of the Equality Act 2010 succeeds as follows:-a. In part in respect of the Respondent’s failure to carry out a risk assessment on the Claimant during her pregnancy, Issue 3(j);

b. In respect of Mr Kalley and / or the Respondent’s failure to deal with, or deal appropriately with, the issues raised in the Claimant’s email to Mr Kalley dated 16 October 2020, Issue 3(r); and

c. In respect of her complaint that she was constructively dismissed.

[3]The Tribunal has jurisdiction to determine the claims as they were brought in time. Case Number:- 3322885/2021; 3322911/2021.

[4]The Claimant’s remaining complaints that she was discriminated against contrary to Sections 13 and 18 of the Equality Act 2010 and subjected to detriment in contravention of Section 47C of the Employment Rights Act 1996, are not well founded and are dismissed. JUDGMENT on RECONSIDERATION APPLICATION 1. The Respondents’ reconsideration application is refused.

The Law

[1]The Tribunal gave an oral Judgment on 5 January 2024 following a multiday hearing in two parts in 2023. The Claimant’s complaints were partly upheld. The Respondent has applied for reconsideration of the Judgment.

[2]Rule 70 of the Employment Tribunal Rules of Procedure 2013 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any Judgment where it is necessary in the interests of justice to do so. Rule 71 requires that any application for reconsideration must be presented in writing within 14 days of the date on which the written record, or other written communication, of the original decision is sent to the parties, or within 14 days of the date that the written reasons are sent (if later). Written Reasons were sent to the parties on 14 February 2024. In the circumstances, the Respondent’s application has plainly been made in time.

[3]Although the reconsideration application was submitted and served the day before the Tribunal was due to determine remedy, the Claimant was able to produce a detailed written response to the application within less than 24 hours and confirmed at the outset of the remedy hearing on 23 February 2024 that she was content, indeed wished for the Tribunal to deal with the application notwithstanding she had had limited notice of the application and little time to prepare to deal with it.

[4]The starting point clearly has to be the decision the Tribunal reached after the hearings in 2023. We have re-read our Reasons. We are satisfied that the Tribunal set out in detail the reasons for its Judgment. Should these matters be examined on appeal, it would be for the Employment Appeal Tribunal or other appellate court to say whether those reasons and our decision can stand. Any suggestion that our findings were perverse (which seems to us to be the thrust of the submissions at paragraph 6 of the reconsideration application) or that we erred in Law is generally a matter for appeal - Ebury Partners UK Ltd v Acton Davis

[2023] EAT 40

[5]In Outasight VB Ltd. v Brown UK

EAT/0253/14

, the Employment Appeal Tribunal considered the Tribunals’ powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013. At paragraphs 27 – 38 of her Judgment Her Honour Judge Eady QC, as she then was, set out the legal principles which govern reconsideration applications, and observed, “The interests of justice have thus long allowed for broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.” These principles were affirmed by His Honour Judge Shanks in Ebury Partners.

[6]In Outasight, the Employment Appeal Tribunal was referred to the EAT’s Judgment in Redding v EMI Leisure Ltd.

EAT/262/81

in which the EAT had observed: “…When you boil down what is said on [the Claimant’s] behalf, it really comes to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice” means justice to both parties. It is not said, and, as we see, cannot be said that any conduct of the case by the employers here caused [the Claimant] not to do herself justice. It was, we are afraid, her own experience in the situation…”

[7]The Respondent seeks to rely upon new evidence that has come to light since the Tribunal gave Judgment, specifically an email Mr Kalley sent to the Claimant 15 minutes after she had emailed him and Ms Harper on 16 October 2020 requesting their support. He responded to her as follows: “Hi Nicola, Please leave this with me as I need to give this some thought and will come back to you as soon as I can.” Mr Kalley discovered the email on 20 February 20024. There is no suggestion that any conduct of the Claimant caused the email to be overlooked by the Respondent.

[8]We dealt with the Claimant’s 16 October 2020 email at paragraphs 81 to 86 of our Reasons. It appeared as Issue 3(r) in the List of Issues, namely whether the Claimant’s email of 16th October 2020 had been ignored by Mr Kalley and / or not dealt with by the Respondent in line with policy, and, if so, whether the Claimant had been discriminated against in contravention of s.18 of the Equality Act 2010. Linked to this was whether the Respondent had failed to carry out a risk assessment in respect of the Claimant and, if so, the reasons for this – Issue 3(j).

[9]We found that Mr Kalley had not responded to the Claimant’s email of 16 October 2020, an omission which we referred to as “particularly telling”. We went on to identify that his “attitude and approach” was reflected in an insensitively expressed email he sent to Ms Young 26 minutes after he had received the Claimant’s email of 16 October 2020. In paragraph 83 of our Reasons we set out various observations on the email, including what we inferred from Mr Kalley’s various comments to Ms Young. Whilst the apparent lack of response on Mr Kalley’s part to the Claimant was evidently a factor in our thinking, it is clear on the face of the Reasons that we primarily focused upon Mr Kalley’s email to Ms Young, including what, if any, inferences it was appropriate to draw from his comments in the email.

[10]In paragraph 84 of our Reasons we described as “unconvincing”, Mr Kalley’s assertion in his witness statement that he had been very sympathetic to the Claimant’s plight. His email to Ms Young evidenced to us that he was not sympathetic to her plight but instead frustrated by or even irritated with the Claimant, and we concluded that he perceived her as a problem, pregnant employee. In setting out the Law earlier in our Reasons, we had noted that unconvincing denials of discriminatory intent coupled with unconvincing assertions of an innocent explanation for allegedly discriminatory treatment of a claimant can potentially support an adverse inference. We considered that this was such a case, albeit the unconvincing denial and explanation in question merely reinforced the adverse inferences that were to be drawn from Mr Kalley’s email to Ms Young. For these same reasons, we inferred that Mr Kalley’s failure to ensure that a risk assessment was undertaken in relation to the Claimant following receipt of the 16 October 2020 email was because the Claimant was pregnant and seeking to exercise her right to maternity leave.

[11]In her response to the reconsideration application, the Claimant has referred the Tribunal to the well-known and long established authority of Ladd v Marshall

1954 3 All ER 745

, CA. We agree with the Claimant that it is appropriate to have regard to the principles in that case in coming to a decision as to whether it is necessary in the interests of justice to reconsider the Judgment. In Borden (UK) Ltd v Potter

1986 ICR 647

, the EAT said that the first limb of the Ladd ‘test’ (namely, whether the evidence sought to be introduced could not with reasonable diligence have been obtained for use before the court) broadly equated to the Tribunals’ Rules then in force regarding reviews of judgments. Those Rules have since been replaced with Rule 70, which confers a broad discretion on Tribunals to reconsider a judgment where it is necessary in the interests of justice to do so. In that regard, we take on board Mr Bidnell-Edwards’ submission that a finding that a person has discriminated against a work colleague is a serious matter and that reconsideration provides a potential means by which the stain of such a finding or conclusion can be addressed. However, balanced against that, in our judgment there is no satisfactory explanation for Mr Kalley’s failure to identify at an earlier stage in the proceedings that he had indeed replied to the Claimant’s email of 16 October 2020. In his discovery witness statement, Mr Kalley does not suggest that his email to the Claimant had been deleted or that there were other technical issues that impacted its retrieval. He refers to unspecified difficulties in finding documents because of the way information is stored by the Respondent, though does not relate these difficulties to the specific email in question, which was discovered on 20 February 2024 seemingly without difficulty. He also makes reference to a “hectic period of time”. However, by the time the final hearing commenced in July 2023, these proceedings had been afoot for over 18 months, allowing sufficient time for Mr Kalley and others to focus on disclosure even if there may have been periods when they were under pressures of work. Finally, Mr Kalley refers to specific difficulties that arose because the Respondent no longer had access to many of Ms Young’s emails. However, the email in question was sent by him rather than Ms Young. On Mr Kalley’s own account, in light of the Tribunal’s findings and judgement, he “trawled through all my sent emails from 16 October 2020 and came across my response sent to Nicola 15 minutes after receiving her e-mail …” His reference to trawling through his sent items seems to us to be putting something of a gloss on what was involved. He is referring to an email which he sent to the Claimant within 15 minutes of receiving an email from her, in circumstances where it had clearly been identified within these proceedings that his alleged failure to respond to the email was an act of pregnancy and maternity discrimination. There is no further substantial explanation as to how or why the email might have been overlooked. Regrettably, the impression is that this is a further matter to which Mr Kalley failed to give his full attention. In our judgment, a reasonable and proportionate search, indeed even a cursory examination of Mr Kalley’s sent items from 16 October 2020, would have revealed the existence of his email to the Claimant. The Respondent has been legally advised throughout these proceedings. It is not suggested that the Respondent was other than appropriately advised in terms of its disclosure obligations. In our judgement, with even basic diligence the email might have been identified and disclosed in good time for the liability hearing. In our judgement it is not necessary in the interests of justice that we should reconsider our Judgment notwithstanding the specific findings and conclusions affecting Mr Kalley.

[12]For completeness, even had we been minded to reconsider our Judgement, on reconsideration we would not have varied or revoked it. We accept that the Claimant had not previously seen Mr Kalley’s email. Having now been provided with a copy, the Claimant describes it as akin to an ‘out-of-office’ response. It certainly amounts to no more than a holding response on Mr Kalley’s part. We consider that the email would not have had an important influence on the outcome of the case. As we have observed already, our conclusions in relation to Issues 3(r) and 3(j) were rooted in adverse inferences drawn from the various comments in Mr Kalley’s email to Ms Young. Whilst it now seems that Mr Kalley did not ignore the Claimant, he did no more than issue a holding response. In so far as it might be suggested that issuing even a holding response within a matter of 15 minutes evidences concern for the Claimant (even if such concern was not necessarily evident from how Mr Kalley expressed himself in the email), it remains the case that Mr Kalley’s attitude and approach were revealed by what he said to Ms Young a few minutes after he send the holding response.

[13]Likewise, the fact that Mr Kalley may have issued a holding response has no, or no material bearing upon our observation that the denial and explanation in paragraph 34 of his witness statement was unconvincing. We said at paragraph 85 of our Reasons that, in responding to the situation, Mr Kalley had failed to engage in any meaningful way with the events or issues as described by the Claimant. That observation holds true notwithstanding Mr Kalley’s holding email. The email certainly does not evidence that he was “very sympathetic to the Claimant’s plight” as he claimed in his evidence.

[14]The Respondent submits that it is also in the interests of justice for the Tribunal to revoke or vary its conclusions in respect of the constructive unfair dismissal claim. We identified various breaches by the Respondent of the implied term of trust and confidence. And we observed at paragraph 130 of our Reasons that the Respondent’s treatment of the Claimant over the period following her return from maternity leave was of itself sufficiently serious to be destructive of trust and confidence, entitling her to resign her employment. The fact that Mr Kalley sent a holding repose to the Claimant on 16 October 2020 can have no bearing whatever on that observation or our decision that the Claimant was constructively unfairly dismissed.

[15]For all these reasons the application for reconsideration is refused. EMPLOYMENT TRIBUNALS Claimant Respondent Ms Nicola Hinds v Mitie Limited Heard at: Cambridge On: 23 February 2024 and 19 March 2024 In Chambers: 28 March 2024 Before: Employment Judge Tynan Members: Mr M Brewis and Mr D Hart Appearances For the Claimant: In person For the Respondent: Mr Bidnell-Edwards, Counsel RESERVED REMEDY JUDGMENT 1. The Respondent shall pay the Claimant a basic award of £6,528 in respect of her unfair dismissal. 2. The Respondent shall pay the Claimant the sum of £20,000 as compensation for injury to feelings as a result of discrimination, together with the further sum of £7,123.29 by way of interest on that sum for the period 16 October 2019 to 28 March 2024 (1,625 days). 3. As regards the further compensation to be awarded to the Claimant in respect of her successful discrimination complaints, the award shall be calculated on the following basis: 3.1. The Claimant shall be compensated in respect of her past and future loss of earnings for the period from 6 September 2021 to 5 April 2025; 3.2. The Claimant’s past and future loss of earnings shall be calculated on the basis that but for her constructive dismissal she would have continued in the Respondent’s employment in the role of Programme Manager, alternatively in a comparable role with identical remuneration to that of the Programme Manager; 3.3. The compensatory award shall include the following additional elements: i. Loss of statutory employment rights: £500 ii. Job search related expenses: £15.49 iii. Travel expenses for job interviews: £294.84 iv. Travel expenses for therapy sessions: £130.90 v. New mortgage set up fee: £2,030.00 vi. Increased interest rate on new mortgage: £1,174.80 TOTAL: £4,146.03; 3.4. The Claimant shall give credit for sums received by her or which she ought reasonably to generate by way of mitigation of her losses as follows: i. Job Seeker’s Allowance: £330 ii. Employment Support Allowance: £2,926 iii. Earnings in April 2022: £240, iv. Personal Independence Payments received in the period January 2022 to January 2023: £3,541.20 v. Income from self-employment since February 2023: £2,667.94 vi. Future mitigation: £20,125.00 TOTAL: £29,830.14; 3.5. Interest shall be awarded in respect of the Claimant’s losses up to and including 28 March 2024, excluding pension losses. Interest shall be awarded at the rate of eight per cent per annum for a period of 813 days, namely from the mid-point between 16 October 2019 and 28 March 2024. 3.6. There is no chance that the Claimant would have voluntarily left her employment with the Respondent prior to 5 April 2025 had she not been constructively dismissed; 3.7. There is a fifty per cent chance that the Claimant would have developed post natal depression in 2021 even had she not been discriminated against or constructively dismissed, but any post natal depression would not have led to the Claimant being absent from work beyond 19 November 2021, namely her child’s first birthday; 3.8. There is no chance that the Respondent would have terminated the Claimant’s employment on grounds of long term incapacity or otherwise; 3.9. The award to the Claimant shall be grossed up to reflect any liability to tax; 3.10. There shall be no adjustment to the compensatory award pursuant to s.207A of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Law

[1]We delivered an oral judgment on liability on 3 January 2024 and, in response to a subsequent request from the Respondent, written reasons were provided to the parties on 14 February 2024. We were unable to deal with remedy on 3 January 2024. For reasons we do not know, Mr Bidnell-Edwards did not attend the hearing. In any event, once we had delivered our judgment and reasons there was relatively limited time remaining to deal with remedy. Furthermore, the Claimant was distressed and expressed her preference to reflect on the decision before remedy was determined. We therefore made case management orders in discussion with the Claimant and the representative who attended on behalf of the Respondent. Notwithstanding the orders were effectively agreed, they were not complied with by the Respondent in so far as it did not prepare a remedy hearing bundle for the resumed hearing on 23 February 2024 and its remedy witness statements were served very late, possibly even on the morning of the hearing. Nevertheless, we were able to make some progress on 23 February 2024 by dealing with the Respondent’s application dated 22 February 2024 for reconsideration of our judgment on liability and, when that application was refused, by proceeding to hear evidence from the first of the Respondent’s two remedy witnesses, Ms Harper. The remedy hearing resumed part-heard on 19 March 2024 and we made further case management orders with a view to ensuring that the hearing was effective.

[2]In our judgment on liability we upheld the Claimant’s complaints that she had been discriminated against:(a) as a result of the Respondent’s failure to carry out a risk assessment in relation to her during her pregnancy;

(b) by reason of its failure to deal with, or deal appropriately with, the issues raised in her email of 16 October 2020; and

[3]As set out below, we shall make a basic award in respect of the Claimant’s unfair dismissal, but otherwise make no separate compensatory award for unfair dismissal given that the compensation to be awarded in respect of discrimination covers any losses that might otherwise be addressed by way of an unfair dismissal compensatory award.

[4]The Claimant gave evidence on remedy. She additionally submitted witness statements from her husband, Gary Hinds and mother, Janice Hinds, both of which statements we have read. On behalf of the Respondent, we heard evidence from Ms Harper and Mr Kalley, both of whom suggest that the Claimant was looking for an opportunity to leave her role as Programme Manager and indeed that she planned to resign her employment with the Respondent. We return to this below.

[5]By the time of the hearing on 19 March 2024, there was a remedy hearing bundle comprising 317 numbered pages, though we also had access to and were referred to the original liability hearing bundle. Within the remedy hearing bundle there is a Schedule of Loss dated 24 January 2024 and Respondent’s Counter Schedule, seemingly undated. Basic Award for Unfair Dismissal

[6]The Claimant has calculated the amount of the basic award incorrectly, as she has applied an out of date upper limit in terms of her weekly pay. As at 6 September 2021, the date the Claimant resigned her employment, the maximum amount of a week’s pay for the purposes of calculating the basic award, was £544 (gross). The Claimant earned comfortably in excess of that amount each week. She was continuously employed for 12 years and was 34 years of age when her employment ended. Accordingly, the basic award is £6,528 (12 years x £544). Compensation for Discrimination

[7]Mr Bidnell-Edwards submits that this is effectively a case of constructive unfair dismissal and that we should approach remedy on that basis. This overlooks that we upheld that the Claimant was discriminated against by being constructively dismissed. Whilst compensation for financial losses is calculated in essentially the same way as for unfair dismissal, and there should obviously be no double-recovery, there is no upper limit on the amount of compensation for discrimination. The Claimant is additionally entitled to an award in respect of injury to feelings, which would not be the case if she had only succeeded in her complaint of unfair dismissal.

[8]We approach compensation on the basis that we must first determine the amount of the Claimant’s losses before going on to determine, if relevant, whether the Claimant failed to mitigate her losses and then, in order, whether there should be any reduction in compensation to reflect the chance that the Claimant would have left the Respondent’s employment in any event and any increase or reduction in compensation to reflect any breach of any applicable ACAS Code of Practice. Injury to feelings

[9]In Vento v Chief Constable of West Yorkshire Police (No.2)

2003 ICR 318

, CA, the Court of Appeal gave specific guidance on how Tribunals should approach the issue of quantum for injury to feelings. Since Vento, further account must be taken of the guidance provided in Simmons v Castle

2012 EWCA Civ 1039

and Da’Bell v National Society for Prevention of Cruelty to Children

2010 IRLR 19

, EAT, which required adjustments to be made to awards for injury to feelings to reflect the impact of inflation and a general increase in the level of awards for pain and suffering etc. These and other pertinent decisions are reflected in Presidential Guidance issued jointly by the Presidents of the Employment Tribunals in September 2017; the Guidance has been the subject of a number of addendums.

[10]The Claimant puts the injury to her feelings at £45,600 in her Schedule of Loss. The figure is unchanged from her original Schedule of Loss submitted on 6 September 2022, which was presented on the strength of her various complaints, the majority of which were either not upheld or not upheld as acts of discrimination. Having regard to the 26 March 2021 addendum to the Presidential Guidance which applies to claims presented between 6 April 2021 and 5 April 2022, the Claimant places her treatment at the very top of the higher Vento band which concerns the most serious cases.

[11]The Respondent contends that the award for injury to feelings should sit in the lower Vento band.

[12]As regards the Respondent’s response to the Claimant’s email of 16 October 2020, Mr Bidnell-Edwards submits that the injury to feelings was effectively experienced over four days and was overtaken by events, namely the discovery during a routine hospital appointment on or around 20 October 2020 that the Claimant’s baby had stopped growing, and which resulted in her commencing her maternity leave earlier than planned. We do not agree that this unwelcome development somehow drew a line under the previous events or, as Mr Bidnell-Edwards put it to the Claimant, that the 16 October 2020 email “had become old news”. On 20 October 2020 the Claimant was advised that her unborn child had not grown since her last scan two weeks earlier. Over those two weeks the Claimant had experienced significant work related stress and two panic attacks, leading to her 16 October 2020 request for support. When the Claimant discussed the matter with the hospital consultant on 20 October 2020, she was informed that the pressures and stresses she was experiencing at work could be a factor in the baby’s lack of growth. The issues in her email of 16 October 2020 remained unaddressed by the Respondent. We accept the Claimant’s evidence that her decision to commence her maternity leave earlier than planned was not just because the baby had stopped growing but because she believed the Respondent to have been unresponsive and unsupportive notwithstanding the difficulties she was then experiencing. We find that what she learned on 20 October 2020 served to crystalise in her mind that she and her unborn child were potentially at risk if she remained at work.

[13]The Claimant’s email of 16 October 2020 was an obvious cry for help from a dedicated, long-serving employee in the final weeks of her pregnancy. As we said in our judgment on liability, the email plainly called for urgent action on the part of the Respondent as well as an immediate response. Even if the Respondent was not then aware that the Claimant’s baby had stopped growing, it inexcusably failed to engage with, or address her urgent concerns which directly touched upon her health, safety and wellbeing, as well as that of her unborn child. It is trite that an expectant mother’s paramount concern will be for her unborn child. The Law expects employers to take action to address risks to their pregnant workers. The Respondent failed in its obligations to the Claimant in this regard and, in so doing, it discriminated against her. Whilst the Respondent is not to be punished in respect of its failings and the award for injury to feelings is not to be inflated to reflect feelings of indignation at the Respondent’s conduct, the Claimant is entitled to be compensated in respect of the injured feelings that have resulted from her treatment, including her knowledge that the Respondent’s failings at that time were the result of discrimination.

[14]The events immediately leading up to the Claimant’s maternity leave represented a distressing, indeed traumatic, start to her leave. We are satisfied that they cast a shadow over the birth and her maternity leave, even if other factors, including her grandmother’s death during her maternity leave and her misplaced perception that the Respondent had discriminated against her in other ways, also impacted her.

[15]Mr Bidnell-Edwards’ submits that the award for injury to feelings should be £5,000, “if that”. We do not share the Respondent’s view that this is a less serious case. Although the Claimant readily accepted during cross examination that the Respondent’s failure to undertake a risk assessment ahead of and following her return from maternity leave, had weighed less heavily upon her than the Respondent’s failure to deal, or deal appropriately with her email of 16 October 2020, in our judgement, the Respondent’s discriminatory treatment of the Claimant, including her constructive dismissal, has caused a significant, lasting injury to her feelings, indeed we consider that it has contributed in some measure to the ongoing psychological issues she has experienced since 2021 even if specific compensation for personal injuries has not been sought by her. The immediate impact upon the Claimant in October 2020 was feelings of worthlessness and hopelessness; during her maternity leave and beyond it has contributed to highly distressing thoughts by the Claimant that perhaps she should end her life.

[16]Equally significantly, the Respondent’s discriminatory treatment of the Claimant has resulted in the loss of secure, long-term employment which contributed to the Claimant’s family’s financial security and from which the Claimant derived a real sense of purpose, self-worth and achievement. With the loss of her employment and career, the Claimant has experienced isolation and a keenly felt loss of purpose, worth and direction.

[17]Whilst this is not a case such as Miles v Gilbank and anor

2006 ICR 1297

, CA in which an award was made at the top of the upper Vento band following a targeted, deliberate, repeated and consciously inflicted campaign involving a callous disregard for the life of an unborn child, nevertheless the discrimination in this case was significant, involving as it did a failure to have proper regard for the Claimant’s health, safety and wellbeing, as well as that of her unborn child, and a failure to undertake an appropriate risk assessment. It has had a pronounced effect upon the Claimant regardless of the other conduct about which complaint was made but which was either not upheld or was found by the Tribunal to involve non-discriminatory breaches of contract. No remedy lies by way of an award of injury to feelings in respect of those other matters. We have remained resolutely focused upon the acts of discrimination and their impact upon the Claimant. In that regard, she felt compelled to commence her maternity leave earlier than planned in order to safeguard her unborn child. We regard this as a serious case that sits more obviously within the upper half of the middle Vento band. We award the Claimant the sum of £20,000 as compensation for injury to feelings. Pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, she is entitled to statutory interest at the rate of eight per cent per annum on that sum from 16 October 2020 to 28 March 2024, the latter being the date upon which the Tribunal calculated the interest. Compensation other than in respect of injury to feelings

[18]The parties agree that the Claimant should be awarded the sum of £500 in respect of the loss of her statutory employment rights.

[19]According to her Schedule of Loss, the Claimant’s gross annual salary at the date of her constructive dismissal was £48,960 (or £32,927 net). It is unclear whether this is inclusive of any discretionary bonus award she might have received, if indeed she was eligible for consideration for such an award. She additionally received an annual car allowance of £7,200. She values the annual employer pension contribution at £2,937.60. All three amounts are agreed by the Respondent.

[20]Although we are unable to finally determine the amount of the Claimant’s financial losses, in our judgment these should be calculated on the basis that the Claimant will fully mitigate her losses by 5 April 2025. The reason we are unable to calculate what those losses are is that there is no information currently available to us as to what the Claimant would have earned had she continued in the Respondent’s employment in her role as Programme Manager. That information is potentially available insofar as the Programme Manager role effectively still exists; the Claimant’s former colleague, Clare Orton was appointed to the role or an effectively identical role following the Claimant’s departure from the business. We do not know whether Ms Orton was appointed to the role at the same level of remuneration as the Claimant. This will need to be disclosed by the Respondent together with details of Ms Orton’s annual pay reviews and any bonus payments whilst in role. Even if it transpires that Ms Orton was appointed to the Programme Manager role on a lower salary than the Claimant, we will need to be provided with details of Ms Orton’s remuneration to date in the role, including her annual pay reviews and any bonus awards, in order to come to a view as to the Claimant’s likely remuneration had she remained with the Respondent so that we might finally determine what financial losses have been caused by her constructive dismissal.

[21]The Claimant left education in 2003 with modest or possibly even below average grades. However, this was over 20 years ago. We do not think this will have any material bearing upon the Claimant’s future career prospects or ability to mitigate her losses, which will instead in our judgement be informed by the skills and experience she has acquired over the course of the sixteen or so years that she worked within the security sector. In this regard, the Claimant’s progression from being a Store Detective to a Regional Account Manager at the Respondent with responsibilities in relation to the Respondent’s relationship with Sainsbury’s, and thereafter to a Programme Manager with a broad remit in respect of a variety of strategic projects, speaks to her abilities and would so speak to a prospective employer.

[22]Notwithstanding her modest educational attainments, the Claimant is evidently an intelligent individual. She has proved to be a formidable advocate in her own cause in these proceedings as well as an able communicator. For example, she was able to respond to the Respondent’s application for reconsideration of the Tribunal’s judgment on liability within less than 24 hours of the application being made. In so doing, she was able to identify all relevant legal principles, including those laid down by the Court of Appeal in Ladd v Marshall

[1954] 3 All ER 745

, CA and to apply those principles to the facts of the case, setting out in a structured and focused way why she believed the application for reconsideration should not be granted. When the application was refused by the Tribunal, essentially for the reasons put forward by the Claimant, she was then able to proceed to deal with remedy. She brought the same focus to bear when cross examined, in her own cross examination of Ms Harper and Mr Kalley, and to her closing submissions on remedy. In short, notwithstanding her evident and significant distress at times during the proceedings, the Claimant is an articulate and impressive individual. She will undoubtedly be an asset to any future employer.

[23]We recognise, of course, that the Claimant has experienced a lengthy period of depression and that she is still on medication to treat her depression. It is apparent from her remedy witness statement and her evidence at Tribunal that the Claimant experienced a significant and highly distressing mental health crisis in late 2021, early 2022. However, that crisis has passed, even if the Claimant may have some residual vulnerability. In or around January 2023 the Claimant stopped receiving Personal Independence Payments. We conclude that this marked a turning point for the Claimant. We do not expect her to recover her health overnight, indeed it is possible that she will have to live with ongoing mental health issues for the foreseeable future. However, in our judgement, it would be reasonable for the Claimant to now begin to identify and implement a plan to resume her career or, if she does not wish to return to working in the security sector, to accept that the Respondent should not be liable to compensate her for any decision she might make in that regard. In our judgment on liability we referred to the Claimant’s ‘cando’ attitude to her work and that in February 2020 she was described by Ms Harper as extremely dedicated and always striving to deliver the best possible customer service to her client, that she was someone who took full accountability and ownership for the relationship. The events of the last three to four years may have knocked the Claimant off course, but as Ms Harper did in February 2020, we observe that the Claimant is someone with tremendous potential. We are confident that these proceedings will go some significant way to laying to rest the issues in the case and enable the Claimant to move forward.

[24]That is not to detract from the Claimant’s unchallenged evidence that she made poor life decisions whilst unwell, that had a profound impact on her family, because in her mind she had become worthless and burdensome. Nor do we lose sight of the fact that the Claimant has a young child of preschool age; whereas she had an established record with the Respondent (and its predecessors) she will inevitably face the difficulties, challenges and biases that often confront working mothers with young children who are seeking to re-enter the workplace or seeking to secure career progression, including stereotypical assumptions around her commitment and willingness or ability to put in the required hours and effort. Some of these potential barriers will abate over the next year once the Claimant’s child reach’s school age, most likely at the start of the January 2025 school term.

[25]In our judgement it would be reasonable for the Claimant to secure a comparable position to the one she held with the Respondent within the next 12 months, namely by the end of the 2025 Spring school term on or around 4 April 2025.

[26]That is not to say that we consider the Claimant will be unable to work or generate an income until that date. In February 2023 the Claimant began working as a cleaner in a business started by her husband after he was made redundant in January 2023. The Claimant felt she could not continue in the role as a result of her mental health and these proceedings. Nevertheless, over the period of six months from April to October 2023 the Claimant was able to generate a modest income from self-employment as a home carer charging £12.50 per hour for her services. Assuming there is no appeal by the Respondent, this judgment on remedy marks the conclusion of these proceedings. We consider that the Claimant ought reasonably to start working again whilst she implements a plan for the longer term. In our judgment she could take on work as a self-employed, or indeed employed, cleaner and/or carer on a full time basis, namely working for 35 hours per week at a rate of £12.50 per hour, or £437.50 gross per week. She has shown that she does not regard such work as beneath her notwithstanding her previous career; it reflects her intrinsic work ethic. Carers and cleaners are in reasonably high demand across the country. We consider that it would be reasonable to expect the Claimant to secure the level of income just referred to by no later than 20 May 2024. This will further mitigate her claimed losses over the period 20 May 2024 to 4 April 2025. We calculate that she can earn £20,125 (gross) over that period.

[27]We have given consideration to whether the Claimant would or might have secured further career progression had she remained with the Respondent. She contends that she would have been a strong candidate for the Head of Operations role on the Sainsbury’s contract that became vacant in July 2022 when Ms Harper was promoted into Mr Kalley’s former role after he in turn secured promotion within the business. The Claimant states that the Head of Operations role attracted a basic salary of £60,000. The Claimant’s evidence in this regard in paragraphs 76 and 77 of her witness statement was unchallenged. As we shall return to, the Respondent asserts that the Claimant would have left its employment in any event on 6 September 2021 regardless of its treatment of her. If it does not believe that the Claimant would have secured the Head of Operations role had she remained in its employment, this is not something that has been addressed by Ms Harper or Mr Kalley in their respective remedy witness statements and it was not addressed by Mr BidnellEdwards in his submissions notwithstanding the Respondent was on notice by reason of the Schedule of Loss and the Claimant’s remedy witness statement that she was contending she would have been appointed to the role.

[28]As we noted in our judgment on liability, in her February 2020 ‘MiReview’, the Claimant had said that she wanted to continue to grow within her current role. We accepted her evidence that she saw any career growth and progression at that time as being within her existing role and that she was not seeking a move away from the Sainsbury’s contract or her role as a RAM.

[29]Whilst it is often said that you ‘make your own luck’, nevertheless we note that at the point she left the Respondent’s employment, the Claimant had been in the Programme Manager role for approximately 15 months. Looking at her history of employment, the Claimant was promoted to RAM in April 2015, meaning that she was in that role for five years before she transferred to the Programme Manager role, essentially a sideways move. Whilst it is particularly unsatisfactory that the Respondent has failed to address this issue with evidence or indeed by cross examining the Claimant on the matter, we are not persuaded that the Claimant would, or might have, secured further promotion over the last three years had she remained with the Respondent. Her evidence on this point largely consists of an assertion on her part. We were not provided with the job description or person specification for the Head of Operations role, nor do we have any information as to the skills, experience or other attributes of the successful candidate, or indeed any other candidates, to be able to come to even a rudimentary view as to the Claimant’s chances of securing the role, assuming that she might even have applied for it given any documented requirements and responsibilities. On this issue, given the dearth of evidence available to us, we cannot reasonably conclude that the Claimant might have been promoted as she claims. In the circumstances, we shall award compensation on the basis of the Claimant’s past and likely future earnings in the Programme Manager role. Had she not continued in the Programme Manager role because of the difficulties with Mr Aston, we conclude that she would have moved sideways again and that her total level of remuneration would have remained unchanged. Out of pocket expenses and other costs incurred by the Claimant

[30]The Claimant has sought five specific amounts in respect of out of pocket expenses and other costs incurred by her following the loss of her employment with the Respondent. They are not addressed by the Respondent in its Counter Schedule and the Claimant was not questioned about them by Mr Bidnell-Edwards nor did he make any submissions in respect of them.

[31]The Claimant paid £15.49 in respect of two months’ subscription to LiveCareer to assist her in creating a CV in connection with her initial job search following her resignation from the Respondent. In our judgement it was entirely reasonable for her to incur these modest expenses to support her in her job search, not least given how long she had been out of the jobs market.

[32]The Claimant claims the sum of £294.84 in respect of unpaid travel expenses for three round trips to Northampton for job interviews. Again, the expenses were reasonably incurred by the Claimant as part of her unsuccessful efforts to mitigate her losses by finding another job.

[33]As noted already, the Claimant underwent a course of therapy between 15th July 2021 and 18th May 2022 focused upon her employment. Of course, the events with which she was concerned comprised a mixture of discriminatory acts, non-discriminatory breaches of contract (not all of which were repudiatory) and entirely innocuous acts. Tribunals can reduce an award where there are a number of concurrent causes for the loss or harm in question, albeit Mr Bidnell-Edwards did not make any submissions in that regard, specifically whether it might be possible to separate out the costs by reference to the Respondent’s culpable and nonculpable conduct. We consider the causes to be essentially indivisible and in such circumstances that the Claimant should be entitled to claim the full amount of the travel costs associated with the therapy, namely £130.90.

[34]As a result of leaving the Respondent’s employment and being without a job, the Claimant and her husband’s mortgage renewal in December 2021 was refused and a new mortgage deal had to be brokered at a cost of £2,030.00. The mortgage interest rate rose from 1.64% to 2.99%, necessitating a six year extension to the mortgage term. Had they been able to renew their mortgage with their existing provider, they would have fixed for a two year period at a rate of 1.29%. The Respondent has not challenged the Claimant’s calculation that this has resulted in otherwise avoidable additional interest charges of £1,174.80. These losses were caused by the discriminatory constructive dismissal and the Claimant is entitled to be compensated accordingly. Mitigation

[35]The sums received by the Claimant by way of Job Seeker’s Allowance (£330) and Employment Support Allowance (£2,926) are to be set off against her financial losses, since they will not be the subject of a recoupment order. The Personal Independence Payments received by her in the period January 2022 to January 2023, totalling £3,541.20 should also be offset against the Claimant’s claimed financial losses since the Payments were not already being made to the Claimant when she resigned her employment. In the circumstances they have provided a new source of income for the Claimant and fall into account. The Claimant accepts that she should give credit for earnings totalling £2,907.94 (gross) received by her since she left the Respondent’s employment.

[36]In opening we observed that having determined the amount of a claimant’s losses, the Tribunal goes on to consider, if relevant, whether the claimant failed to mitigate their losses. We have dealt above with the potential for the Claimant to mitigate her future losses. As regards her losses to date, the Respondent has the burden of establishing that she has unreasonably failed to mitigate these losses. Although the Claimant was briefly questioned regarding her decision to become a kidney donor in 2022, the Respondent does not assert any failure to mitigate on her part. In any event, putting aside that she did make efforts to secure another position after she resigned her employment, she has been significantly impacted by mental health issues since leaving the Respondent’s employment. The DWP accepted that she was unfit for all work between January 2022 and January 2023. As we shall return to in a moment, we shall need to consider whether these health issues would or might have manifested in any event and led the Claimant to stop working for the Respondent regardless of its treatment of her. Interest

[37]The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 give Tribunals the power to award interest on awards made in discrimination cases. Interest is awarded for the period beginning on the ‘mid-point date’ and ending on the day of calculation — Reg 6(1)(b). The ‘mid-point date’ is the date halfway through the period beginning on the date of the act of unlawful discrimination (in this case, 16 October 2020) and ending on the day of calculation (in this case 28 March 2024) — see Regulation 4(2). Accordingly, interest will be awarded for a period of 813 days at the statutory rate of eight per cent per annum. No award of interest can be made in relation to losses which will arise after the day of calculation, such as future loss of earnings — Regulation 5. The EAT confirmed in Ministry of Defence v Cannock and ors

1994 ICR 918

, EAT that this means that no interest will be awarded on pension losses. Polkey

[38]Pursuant to s.123(1) of the Employment Rights Act 1996, where a Tribunal upholds a complaint of unfair dismissal, it may award such compensation as it considers just and equitable in the circumstances having regard to the loss sustained by the Claimant in consequence of the dismissal. In accordance with the well established principles in Polkey v A E Dayton Services Limited

[1988] AC344

, the Tribunal may make a just and equitable reduction in any compensatory award under s.123(1) to reflect the likelihood that the employee’s employment would still have terminated in any event. The burden of proving that an employee would have been dismissed in any event, rests with the employer. The principles in Polkey are equally applicable to awards of compensation for discrimination: see for example O’Donoghue v Redcar and Cleveland Borough Council

2001 IRLR 615

, CA and Abbey National plc and anor v Chagger

2010 ICR 397

, CA. Tribunals are required to actively consider whether a Polkey reduction is appropriate. In Software 2000 Limited v Andrews & Ors. [2007] UK EAT 0533_06, the EAT reviewed the authorities at that time in relation to Polkey and confirmed that Tribunals must have regard to all relevant evidence, including any evidence from the employee; the fact that a degree of speculation is involved is not a reason not to have regard to the available evidence, unless the evidence is so inherently unreliable that no sensible prediction can be made. It is not an ‘all or nothing’ exercise, though we are mindful that having discriminated against the Claimant the Respondent now has an obvious interest in asserting that it was inevitable or likely that she would have left its employment in any event.

[39]Applying Polkey principles in practice requires an evidence based approach drawing upon common sense and the Tribunal’s experience.

[40]The Respondent’s primary contention is that the Claimant would always have resigned her employment and accordingly that she should not be awarded any compensation for her claimed financial losses. Alternatively, it contends that the Claimant’s mental health issues would likely have manifested in the same way they have over the last two years or so, with the result that she would have been dismissed from the Respondent’s employment by reason of long term incapacity.

[41]The Respondent’s primary contention is addressed in Ms Harper and Mr Kalley’s respective remedy witness statements. They suggest that the demands of the Programme Manager role would not have been something that the Claimant would have wanted to commit to long term. Oddly, they each suggest that the role would not have been suitable for any individual who was unable to commit to the role on a full time basis; the Claimant was working full time when she went on maternity leave, returned to work on a full time basis and never suggested that she might want to work flexibly. We find particularly perplexing Ms Harper’s observation that the role could be mentally challenging and that it requires a significant level of focus and commitment, the inference being that the Claimant was perhaps not equipped to meet such demands. It will be evident from our observations above that we consider the Claimant to have all these attributes and to have been entirely capable of meeting the challenges of the role. It is particularly difficult for us to square Ms Harper’s evidence with what she wrote in the Claimant’s February 2020 MiReview, including that the Claimant always rose to the challenge.

[42]The Claimant’s evidence and her cross examination of Ms Harper and Mr Kalley, as well as her submissions, were all on point on this issue, namely that having left education with modest or below average qualifications, she had spent the bulk of her career with the Respondent and its predecessor organisations and was committed both to her career and to the organisation. In this regard her history of continuous, stable employment reflects that of her mother, husband and three siblings. The Claimant commenced keeping in touch days within approximately 12 weeks of the birth of her child and she returned to work at the end of her ordinary maternity leave, electing not to take additional maternity leave. As between herself and her husband, the Claimant was the principal earner, so that they were reliant upon the Claimant’s income to maintain their standard of living. In our judgement, there is no chance that the Claimant would have left the Respondent’s employment but for how it treated her. The Claimant’s career achievements, given her relatively modest personal and educational background, are testament to her ability, resilience and work ethic. We accept her evidence that she has encountered and successfully navigated numerous challenging situations during her career, including difficult colleagues, demanding clients and complex projects. Her February 2020 MiReview speaks to her potential and her determination to provide outstanding customer service and to succeed even in the face of the particular challenges she encountered on the Sainsbury’s account. Matters of chance are to be assessed on the assumption that the employer would not have treated the claimant as it did but instead acted as a reasonable employer. It seems to have been recognised within the Respondent that Mr Aston could be difficult and unreasonable. Ms Harper and Mr Kalley’s evidence rather assumes that the Respondent would have been a passive bystander in the event of further difficulties when, instead, acting as a reasonable, nondiscriminating employer it would, as a minimum, have supported and mentored the Claimant through the issues she was encountering and indeed, have escalated the matter within Sainsbury’s had Mr Aston’s alleged behaviours persisted. The Respondent has tens of thousands of staff; we are certain that had any issues proved incapable of resolution the Claimant would have been redeployed into another role within the business. The Claimant was a dedicated employee with “tremendous potential” whom the Respondent had singled out for the Programme Manager role. That speaks to how well regarded she was prior to the events in question, and why, all other things being equal, the Respondent would have sought to retain her within its business.

[43]The Respondent may have failed to discharge its duties and responsibilities to the Claimant as a pregnant woman, specifically insofar as it failed to assess the risks to her during her pregnancy and following her return from maternity leave, but that is no reason for us to proceed on the basis that it would equally have failed to discharge its responsibilities to her in the face of any bullying or other unreasonable behaviour on the part of Mr Aston. The Claimant is an independent career-minded individual. We are certain that she intended to and, all other things being equal, would have continued in the Respondent’s employment but for what happened. We reject Ms Harper and Mr Kalley’s evidence that the Claimant had been looking for an opportunity to leave her existing role and employment and find particularly unattractive the suggestion in paragraph 7 of Ms Harper’s witness statement, that the way the Claimant outlined her grievance and then pursued her Tribunal claim evidences that the Claimant wished to leave her role, was not committed to it and had been planning to resign for some time. Mr Kalley’s assertion that the Claimant was “angry” that she had not been made redundant earlier is equally misconceived. Shortly after the Claimant returned from maternity leave, a long standing colleague expressed surprise that the Claimant was still with the business. She understood from his comments that her role might be at risk. She felt uneasy and accordingly raised the issue, we find because she wanted reassurance in the matter. Subsequently, in her grievance of 3 September 2021, the Claimant observed that a severance package would have been kinder than the treatment she believed she had been subjected to. It is fanciful for the Respondent to suggest that these comments evidence some desire on the Claimant’s part to be made redundant, let alone that she was angry or resentful at having not been made redundant. As the Claimant observes, it rather begs the question why she emailed Mr Kalley in the terms she did on 27 July 2021 (page 561 of the liability hearing bundle), seeking his support, or why she took a relatively short period of maternity leave and embarked upon keeping in touch days just 12 weeks or so after the birth if her aim was to be made redundant or she was angry at having not been made redundant.

[44]Ms Harper and Mr Kalley’s evidence on the issue of whether the Claimant might have resigned her employment in any event and the unappealing suggestion in the course of cross examination that the Claimant’s child would have been an obstacle in terms of her ability to hold down the Programme Manager role has served to add a measure of insult to the injury that has already been caused to the Claimant by the Respondent’s treatment of her.

[45]We turn then to the question of whether the Claimant would or might have left the Respondent’s employment in any event by reason of ill health. Mr Bidnell-Edwards’ observation that there is no medical report that addresses the potentially complex medical issues around the Claimant’s pregnancy and mental health, including post natal depression, overlooks that the Respondent has the primary burden of establishing the relevant chance that the Claimant’s employment would have ended in any event. It has not adduced any medical evidence in this regard. We recognise that it might equally be said that neither has the Claimant sought to adduce medical evidence in support of her claim to an award for injury to feelings at the top of the higher Vento band. We are not qualified to bring any medical perspective to bear. Instead, we have regard to the limited contemporaneous materials in the liability hearing bundle. These evidence that the Claimant began to experience mental health issues whilst pregnant because of the pressures of work she was under, including as a result of the difficulties she was encountering on the Sainsbury’s account particularly in her dealings with Mr Aston. In her email of 16 October 2020 she wrote that she had experienced two panic attacks that week. She referred to them as having taken her completely by surprise and went on to say that she was struggling to sleep. We accept the Claimant’s evidence at Tribunal that she has no history of mental health issues prior to 2020. The fact that the Claimant described the two panic attacks in October 2020 as having taken her by surprise indicates to us both that it was not something she had experienced before and that her symptoms had developed and escalated within a relatively short period of time.

[46]There is a contemporaneous record as to how the Claimant was feeling by 19 October 2020 when the issues in her 16 October email had not begun to be addressed. She emailed Mr Kalley and Ms Young as follows: “I don’t know what to say… disappointed and worthless is probably how I feel right now… I have logged on for work today thinking you would be coming up with a plan to support my health and wellbeing but in light of the revised time / date I am in absolute floods of tears right now asking myself why I have even got up and put the effort into working today… I cannot spend another day crying with anxiety. I hope you know that I am truly conflicted with this decision but I cannot keep back the tears.”

[47]During her maternity leave the Claimant experienced a significant deterioration in her mental wellbeing. As we have noted already, she experienced suicidal ideation.

[48]Within little more than of a week of returning to work following her maternity leave, the Claimant wrote in an email to Mr Kalley, “I have had an extremely difficult return to work, I have tried to mask this by not talking about my struggles and just trying to crack on, but this weekend I have had a little bit of a mental health crisis and feel completely overwhelmed with emotions that I just cannot bear the thought of applying myself in work. The thought of reading an email or answering the phones is causing me to panic and I am not fully sure why.” She went on to say that she had no history of taking sick leave and that she felt tremendous shame for having to take sick leave.

[49]We note that in her email to Mr Kalley of 20 June 2021, the Claimant attributed her difficulties not just to how she had been treated, but to the circumstances surrounding the death of her grandmother. During cross examination, the Claimant was not challenged in terms of her evidence as to how she had felt at the point she had returned to work or during the initial days following her return. In her email she referred to the fact that her maternity leave had effectively been triggered as a result of health complications and anxiety, which she attributed to work. She also said that she was over thinking the events prior to her maternity leave and these were causing her to panic. It reinforces what we have already said regarding the lasting impact of the events in mid-October 2020.

[50]The Claimant was initially certified with depression on 20 June 2021, though was subsequently certified with post natal depression on 27 July 2021 and again on 2 September 2021. She resigned her employment a few days later. The Claimant had commenced therapy on 15 July 2021 and she continued with the therapy until 18 May 2022. Again, her unchallenged evidence was that most, if not all, of her discussions with her therapist were about her employment and that how she perceived she had been treated since the announcement of her pregnancy had fuelled constant negative thoughts of worthlessness.

[51]In January 2022, the Claimant was assessed by the DWP as unfit for work. Nevertheless, she continued to take positive steps to develop income generating opportunities, including setting up a company that she thought might provide support to new and expectant mothers who were experiencing work place discrimination; it has not in fact generated any income. In her remedy witness statement, the Claimant describes a variety of initiatives she has undertaken to rebuild her confidence and in order to establish a network of contacts through which she might identify and secure some way forward. For over a year now she has not been in receipt of any form of state support, reinforcing our sense that she is on the road to recovery.

[52]Doing the best that we can on the information available to us, in particular in the absence of any expert medical evidence as to how the Claimant’s health issues would or might have developed but for how she was treated, and on the assumption that the Respondent, acting as a reasonably concerned, non-discriminating employer, would have supported her through her illness and recovery, and having further regard to the documented position as at 16 and 19 October 2020, we conclude that there was a fifty per cent chance that the Claimant would have developed post natal depression regardless of how she was treated by the Respondent. Furthermore, that had she developed post natal depression this would have led to the Claimant being absent from work for a period not exceeding five months from 20 June 2021, namely up to her child’s first birthday. We take judicial notice of the fact that post natal depression typically affects parents during the first year of their child’s life, even if in some cases the depression is of longer duration. The Claimant had no history of mental health issues and the Respondent has not pointed to any other circumstances of hers that might indicate an increased propensity or chance of experiencing a longer term depressive illness.

[53]At the point at which she resigned her employment, the Claimant had been absent from work for eleven weeks. We believe she was eventually paid in full for that absence and that it was also eventually accepted by the Respondent that she was entitled to full pay for 16 weeks and thereafter to half pay for a further 16 weeks’ sickness absence. In which case, there is a fifty per cent chance that the Claimant would have transitioned to half pay from 11 October 2021 until 19 November 2021, namely a period of four weeks and four days. Accordingly, the Claimant’s loss of earnings for that period should be reduced by 25% to reflect this chance.

[54]On the basis we consider that the Claimant would otherwise have made a full recovery from any post natal depression, we discount entirely the possibility that she would have left the Respondent’s employment by reason of ill health / long term incapacity. Acting as a reasonable, nondiscriminating employer and having regard to its size and administrative resources, as well as to the Claimant’s length and record of employment, we do not consider that the Respondent would have terminated the Claimant’s employment if she had been absent from work for up to five months (of which there was in any event only a fifty per cent chance). S.207A of the Trade Union and Labour Relations (Consolidation) Act 1992

[55]The Claimant’s contention that the award of compensation should be increased by 25% to reflect the Respondent’s alleged contravention of the ACAS Code of Practice on disciplinary and grievance procedures cannot be maintained in view of the findings and conclusions in or judgment on liability in respect of Issues 4.11(b) and (c).

[56]In conclusion, we shall make case management orders to enable the award of compensation to be finalised without further delay. If the parties are able to agree the amount of the compensation award we are content to issue a final judgment on remedy by consent.

[1]On 24 April 2024 we gave judgment in respect of various issues relevant to remedy. However, we were unable to finally determine the amount of compensation to be awarded to the Claimant as we required additional information from the Respondent. The information we required was provided by the Respondent on 16 May and 5 July 2024.

[2]When she resigned her employment with the Respondent, the Claimant was earning £48,960 per annum, received an annual car allowance of £7,200 and was eligible for a bonus. The Respondent also contributed 6% of her basic salary to a pension on her behalf.

[3]The Respondent has confirmed that employees at the Claimant’s level received pay increases of 2%, 7% and 6% respectively in 2022, 2023 and 2024. Salary reviews take effect from 1 April each year. We therefore calculate that the Claimant’s salary would have increased with effect from 1 April 2022 to £49,939.20, from 1 April 2023 to £53,434.94 and from 1 April 2024 to £56,641.04.

[4]We have previously determined that the Claimant should be compensated in respect of her financial losses up to 5 April 2025. All other things being equal, the Respondent’s staff can expect to receive a pay increase with effect from 1 April next year. It is too early in the year to come to any reliable view as to what percentage increase might be offered to staff at the Claimant’s level. Whilst the UK inflation rate is currently around 2%, we are mindful that we have not proposed discounting (nor indeed been invited by the Respondent to discount) the award of compensation for future financial losses to reflect accelerated receipt by the Claimant. We conclude that we should use the same salary figure for the year ending 31 March 2025 when calculating the Claimant’s financial losses for the period from 1 April to 5 April 2025.

[5]Managers at the Claimant’s level are eligible to a bonus, calculated as a fixed percentage of their basic salary. The percentage award is the same for all managers. In other words, bonuses are determined by reference to company rather than individual performance. Bonuses are awarded in respect of the period 1 April to 31 March, though are payable in or around June following the bonus year end.

[6]In 2022 and 2023, employees at the Claimant’s level were awarded bonuses of 16% and 16.8% respectively of basic salary. As at 16 May 2024, the bonus award for 2024 had yet to be determined. In the absence of any further information from the Respondent, including any suggestion by it that company performance in the year to 31 March 2024 was down on 2022 or 2023, we shall use an average figure of 16.4% to calculate the Claimant’s loss of bonus for 2024 and 2025. As the 2025 awards will not be paid by the Respondent until in or around June 2025 and we do not yet know what income tax and employee national insurance contribution rates will apply for the tax year ending 5 April 2025, we shall assume for calculation purposes that they will remain unchanged from 2024/25.

[7]In our judgement, the 2021/22 bonus should be prorated to reflect that the Claimant was on maternity leave during the first 10 weeks of the bonus year and not entitled to her normal remuneration during that period.

[8]At our direction, the Respondent has provided details of Ms Orton’s remuneration since 2020. We understand that Ms Orton does not want this information to be made public by being included within this judgment. In any event, we have not thought it necessary to do so since the information provided in relation to her merely confirms what is said by the Respondent regarding the level of pay review and bonus awards to staff more generally.

[9]We have no further information as to whether the car allowance rates paid to employees have changed since 2021. However, we are mindful that an element of the allowance would be to compensate the Claimant for wear and tear to her vehicle and any resulting depreciation in its value. Since 2021 the Claimant has not been using her vehicle for work, or certainly not to the level that she did when employed by the Respondent. We have therefore left the amount of the car allowance for each year covered by our award unchanged at £7,200 per annum.

[10]In its Counter-Schedule of Loss the Respondent has calculated the Claimant’s net salary using www.listentotaxman.com. As the Claimant has not suggested an alternative online resource, we too have used it to calculate the Claimant’s net losses.

[11]We have previously determined that there was a 50% chance of the Claimant developing postnatal depression that would have resulted in her being absent from work in the period 6 September to 19 November 2021. During the first six weeks of that period the Claimant would have continued to be paid her full salary in the event of sickness absence as she was entitled to full pay for 16 weeks’ sickness absence in total and thereafter a further 16 weeks at half pay. As at 6 September 2021, the Claimant had been paid for 10 weeks’ sickness absence in total. Regardless of her chances of experiencing postnatal depression, the Claimant’s financial losses in the period 6 September 2021 to 17 October 2021 are therefore to be assessed at 100% of her normal remuneration. Given, as a minimum, that the Claimant would have been paid 50% of her salary for any further sickness absence between 18 October and 19 November 2021 (a further period of five weeks), we shall award the Claimant 75% of her salary and car allowance for that period to reflect the 50% chance that she would have been absent from work. Having not been told otherwise by the Respondent and given that bonuses reflect company rather than individual performance, we proceed on the basis that any bonus for 2021/22 would not have been prorated to reflect any sickness absence.

[12]In the tax year ending 5 April 2022 the Claimant’s earnings at the Respondent were £23,055.23. PAYE of £2,869.20 was deducted from those earnings (see page 224 of the Remedy Hearing Bundle).

[13]Subject to grossing up, we calculate the Claimant’s financial losses to be as follows:a. A. Tax Year ending 5 April 2022 Actual Total earnings from 6 £ 23,055.23 Remuneration April 2021 to 5 September 2021 Salary 6 September 2021 to 30 working days £ 5,649.23 15 October 2021 @ £48,960 per annum Car Allowance As above 30 working days £ 830.77 @ £7,200 per annum Salary 16 October 2021 to 25 working days £ 3,530.76 19 November 2021 @ £48,960 per annum x 75% Car Allowance As above 25 working days £ 519.23 @ £7,200 per annum x 75% Salary 20 November 2021 to 94 working days £ 17,700.92 31 March 2022 @ £48,960 per annum Car Allowance As above 94 working days £ 2,603.08 @ £7,200 per annum Salary 1 – 5 April 2022 3 working days £ 576.22 @ £49,939.20 per annum Car Allowance As above 3 working days £ 83.08 @ £7,200 per annum Total Salary 6 September 2021 to £ 31,493.29 and Car 5 April 2022 Allowance Total Taxable 6 April 2021 to 5 April £23,055.23 + £31,493.29 £ 54,548.52 Net of Tax As above £ 40,330.90 Employer 6 September 2021 to £ 5,649.23 + Pension 5 April 2022 £ 3,530.76 + Contribution £17,700.02 + £ 1,647.37 £ 576.22 + £ 27,456.23 @ 6% Had the Claimant continued in the Respondent’s employment, the total deductions from her earnings for PAYE in the year ending 5 April 2022 would have been £14,217.62 (£54,548.52 - £40,330,90). As we have noted already, the actual total deductions from her earnings at the Respondent that year were £2,869.20. Accordingly, the additional liability to income tax and employee national insurance contributions on her remuneration for the remainder of the year would have been £11,348.42, meaning that her total net financial losses for the year ending 5 April 2022 are £21,792.24: namely, salary and car allowance of £31,493.29 plus employer pension contribution of £1,647.37 minus PAYE of £11,348.42.

b. B. Tax Year ending 5 April 2023 Salary 6 April 2022 to 257 days @ £49,939.20 per £ 49,362.98 31 March 2023 annum Salary 1 – 5 April 2023 3 working days @ £53,434.94 £ 616.56 Total Salary 6 April 2022 to 5 £ 49,979.54 April 2023 Car Allowance As above £ 7,200.00 Pro-rata Bonus £48,960 @ 16% = £7,833.60 x £ 6,025.85 for 2021/22 42/52 Total Taxable £ 63,205.37 Net of Tax £ 45,436.90 Employer £49,979.54 @ 6% £ 2,998.77

c. C. Tax Year ending 5 April 2024 Salary 6 April 2023 to 257 days @ £53,434.94

£ 52,818.38

31 March 2024 Salary 1 – 5 April 2024 3 working days @ £56,641.04 £ 653.55 Total Salary 6 April 2023 to 5 £ 53,471.93 April 2024 Car Allowance As above £ 7,200.00 Bonus for £53,434.94 @ 16.8% £ 8,977.07 2022/23 Total Taxable £ 69,649.00 Net of Tax £ 49,637.92 Employer £53,471.93 @ 6% £ 3,208.32

d. D. Tax Year ending 5 April 2025 Salary £ 56,641.04 Car Allowance £ 7,200.00 Bonus for £53,434.94 @ 16.4% £ 8,763.33 2023/24 Total Taxable £ 72,604.37 Net of Tax £ 51,352.03 Employer £56,641.04 @ 6% £ 3,398.46

e. E. Tax Year ending 5 April 2026 Assumed Basic £ 56,641.04 Salary Assumed Car £ 7,200.00 Allowance Bonus for £56,641.04 @ 16.4% £ 9,289.13 2024/25 Total Taxable £ 73,130.17 Remuneration (£63,841.04) (Excluding Bonus) Net of Tax £ 51,657.00 (Excluding (£46,269.30) Bonus) Net Bonus £51,657.00 - £46,269.30 £ 5,387.70 Summary

[14]In summary, the Claimant’s total financial losses are as follows:- Type Dates Amount Net Year End 5 April 2022 £ 20,144.87 Employer Year End 5 April 2022 £ 1,647.37 Net Year End 5 April 2023 £ 45,436.90 Employer Year End 5 April 2023 £ 2,998.77 Net Year End 5 April 2024 £ 49,637.92 Employer Year End 5 April 2024 £ 3,208.32 Net Year End 5 April 2025 £ 51,352.03 Employer Year End 5 April 2025 £ 3,398.46 Net Year End 5 April 2026 £ 5,387.70 Total Loss of £ 171,959.42 Total Loss of £ 11,252.92 Employer Financial losses, including interest, to 28 March 2024

[15]We have previously determined that interest should be awarded in respect of the Claimant’s losses up to and including 28 March 2024, excluding pension losses. Interest is to be calculated at the rate of 8% per annum for a period of 813 days, namely from the mid-point between 16 October 2019 and 28 March 2024.

[16]The Claimant’s net loss of remuneration for the tax year ended 5 April 2024 is £49,637.92. Prorated to 28 March 2024, her net loss is £48,549.97. Subject to mitigation, her total net loss of remuneration from 6 September 2021 to 28 March 2024 is £114,131.74 (£20,144.87 + £45,436.90 + £48,549.97). Excluding mitigation of £20,125.00 (gross) for the later period 20 May 2024 to 4 April 2025, £9,705.14 is to be deducted in respect of mitigation up to 28 March 2024 (£29,830.14 - £20,125.00). In our Remedy Judgment of 24 April 2024 we awarded the Claimant additional sums totalling £4,146.03 (see paragraph 3.3 and paragraphs 30 to 34 of our Reasons). That takes the Claimant’s overall financial losses for the period 6 September 2021 to 28 March 2024 to £108,572.63 (£114,131.74 - £9,705.14 + £4,146.03).

[17]Interest at 8% per annum on the sum of £108,572.63 for 813 days is £19,346.75. Future loss

[18]The Claimant’s total net loss of remuneration from 29 March 2024 to 5 April 2025 is £57,827.68, comprising: pro-rata net remuneration of £1,087.95 for the period 29 March 2024 to 5 April 2025; net remuneration of £51,352.03 for the tax year ending 5 April 2025; and net loss of bonus for 2024/25 of £5,387.70. The sum of £20,125.00 (gross) is to be deducted in respect of future mitigation. Again, according to www.listentotaxman.com, that equates to £18,011.40 net of income tax and employee national insurance contributions. After mitigation, therefore, the Claimant’s total future loss of remuneration is £39,816.28 (£57,827.68 - £18,011.40). Grossing up

[19]The total award before grossing up is £212,639.87. The award will be taxed in the current tax year ending 5 April 2025. The first £30,000 will be tax free. The balance of the award, namely £182,639.92 will be subject to income tax at the Claimant’s marginal rate. It will not be subject to employee national insurance contributions. We have previously determined that the Claimant is capable of earning £20,125.00 in the current tax year. We calculate that the Claimant will be liable to tax on the award as follows: On the first £30,000 = tax free On the next £30,145 @ 20% = £6,029.00 On the next £49,730 @ 40% = £19,892 On the next £25,140 @ 60% (being the effective rate of tax due to the loss of the personal allowance on income between £100,000 and £125,140) = £15,084 On the final £77,624.87 @45% = £34,931.19

[20]The total liability for tax on an award of £212,639.92 is therefore £75,936.19. Net of tax, the Claimant would receive £136,703.69. In order for the Claimant to receive £212,639.87 net of tax, she must be paid an additional sum of £138,065.78, or £75,936.18 net of income tax @ 45%. Accordingly, the total grossed up award to the Claimant shall be £350,705.70.