Ms S Barker v Total Pest Control (UK) Ltd: 3347624/2016
EMPLOYMENT TRIBUNALS
Case No 3347624/2016
Between
Ms S BarkerClaimantTotal Pest Control (UK) LtdRespondent
Before
Employment Judge Mr
Members
Mrs C CarrMr S BuryMs S Chan (instructed by counsel) for claimantMr D Cashman (instructed by counsel) for respondentDate 9 November 2017
REASONS
[1]On 8 December 2016 the Claimant presented complaints of unfair constructive dismissal and pregnancy/maternity discrimination to the Tribunal.[2]The claims were clarified at a preliminary hearing on 10 March 2017. Respondent[3]On 5 January 2017 the Respondent presented a response and resisted all claims.
Evidence
[4]The Tribunal heard evidence on oath from the Claimant Ms Stacey Barker (Office / Accounts Manager).[5]The Tribunal also heard evidence on oath on behalf of the Respondent from Mrs Jane Murphy (Company Secretary), Mr Stephen Murphy (Managing Director), Mr Alistair Milne (Senior Manager) and Ms Rosie Carter (Accounts Administrator).[6]The Tribunal also read documents in a bundle provided by the parties. Findings of Fact
Background
[7]The Respondent is a family business that provides pest prevention services. At the time of the events in question, it employed 13 members of staff.[8]The Claimant started work for the Respondent as an Accounts Assistant on 27 July 2010. She was promoted to Office/Accounts Manager on 28 August 2013. In this role, she had unsupervised access to the Respondent’s accounts and, among various duties, she had the responsibility for the Respondent’s payroll which involved paying all employees, including herself, at the end of each month.[9]In 2012 the Claimant was pregnant and took maternity leave and returned to work. There were no issues relating to her pregnancy or maternity leave at this time.[10]The Claimant’s contract of employment included the following provisions: “You shall not work for anyone else while you are employed by the company without prior permission from the company. Page 2 of 18 Your salary is £26,500.00 per annum and payable monthly in arrears on or about the 25th day of each month directly into your bank or building society account.”[11]As to working hours, the Claimant was “entitled to 15 minute periodic breaks each working day, … normal hours of work are 9.00 am to 5.00 pm Monday to Friday inclusive with a lunch break of one hour.”[12]Sometime in 2014/2015 (the actual date was a matter of dispute between the parties), the Claimant’s hours of work were changed by agreement to 10.00 am to 6.00 pm.[13]The Claimant was required to give “at least two weeks’ notice of any proposed holiday dates”.[14]The Claimant was entitled to statutory sick pay and all sick pay “is made at the company’s discretion”.[15]On 26 January 2015 the Claimant started a cake making business “Made With Love Limited” and it was incorporated as a company on that date. The company was marketed on websites, including Facebook.[16]On 6 January 2016 the Claimant informed the Respondent by email that she was pregnant with her third child which was due on 3 August 2016. She said that she intended to start maternity leave on 8 June 2016 and would take the full one year maternity entitlement and return to work in June 2017.[17]The Claimant claimed that after informing the Respondent of her pregnancy, she was treated unfavourably in a way which amounted to pregnancy discrimination and also amounted to fundamental breaches of contract, breaching the implied term of trust and confidence which entitled her to resign.[18]The Claimant resigned on 15 August 2016. Evidence of Stephen Murphy[19]Most of the allegations set out below related to the conduct of Mr Murphy.[20]The Claimant was critical of the fact that many of the allegations were not specifically denied in the grounds of resistance and despite having permission to file an amended response, the Respondent failed to do so. Additionally, many of the allegations were not denied in Mr Murphy’s witness statement. Indeed, some of them were not even referred to. The Claimant invited the Tribunal to draw an adverse inference from these failures.[21]It was also submitted that Mr Murphy’s evidence was evasive, unreliable and inconsistent. His automatic reaction to being cross examined was to disagree with everything put to him with the bizarre consequence that he would end up Page 3 of 18 denying something which was included in his own statement. It was said that he altered his evidence as he went along to better advance his case. His oral evidence that he was unconcerned with matters which the Claimant alleged prompted adverse criticism and hostility from him, was belied by the documentary evidence. For example, his assertion that the matter of the Claimant’s wage advances had a line drawn under it following the 11 February 2016 meeting between them. In fact it was brought up again by him two months later in his letter to the Claimant dated 12 April 2016 responding to the Claimant’s complaint of maternity discrimination.[22]The Tribunal found that these submissions had some merit. Mr Murphy was not an impressive witness. His responses were evasive, defensive and often uncertain. He appeared to be unprepared for the hearing and on many occasions that he did not know the answer to matters put to him which he could be expected to know. On occasions, he resiled from his witness statement.[23]One very clear example was Mr Murphy’s response to allegation 6 below. In his witness statement he did not deny using the word “fraud” and did not deny telling the Claimant that he would take the printout as notice to resign. When cross examined on these matters, he said that he did not use the word “fraud” and that he did not say that he would take it as her notice to resign. However, in the Respondent’s solicitor’s letter dated 31 August 2016, in respect of this matter, it was said: “As a consequence Stephen Murphy came to see you in the office on 4th April 2016 and asked you about these discoveries and asked if it was your intention to start full time on your own business in September/October 2016. He advised you that, if it was your intention to leave the Company, he would take your date of resignation from the date on your business website for starting full time on your cake business. It is admitted that he believed that this would amount to fraud on the revenue but he did not say that he would not pay your SMP.”[24]It follows that Mr Murphy had failed to deny these matters in his witness statement, denied them during his evidence to the Tribunal, but solicitors on his behalf had previously accepted two of the three matters alleged had been said by him.[25]By comparison, the Tribunal found the Claimant’s evidence, both in her witness statement and under cross examination at the hearing, to be mostly straightforward and consistent with the allegations made in her claim form and in the list of events set out below.[26]In these circumstances, where there was a conflict between the evidence of the Claimant and that of Mr Murphy, the Tribunal was inclined to prefer the Claimant’s account. Page 4 of 18 Relevant Law Discrimination Burden of Proof – section 136 Equality Act 2010
Relevant Law
[27]For discrimination claims under the Equality Act 2010 the burden of proof is set out in section 136 of the Act. If there are facts from which the Tribunal could decide in the absence of any other explanation that a person contravened the provision concerned the Tribunal must hold that the contravention occurred. But that does not apply if the person shows that he or she did not contravene the provision.[28]There is guidance from the Court of Appeal in Madarassy v Nomura International plc [2007] IRLR 246. The burden of proof does not shift to the employer simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination, they are not without more sufficient material from which a Tribunal could conclude that on the balance of probabilities the Respondent had committed an unlawful act of discrimination. The Claimant must show in support of the allegations of discrimination a difference in status, a difference in treatment and the reason for the differential treatment.[29]If the burden of proof does shift to the Respondent, in Igen v Wong [2005] IRLR 258 the Court of Appeal said that it is then for the Respondent to prove that he did not commit or is not to be treated as having committed the act of discrimination. Since the facts necessary to prove an explanation would normally be in the possession of the Respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof and to prove that the treatment was in no sense whatsoever on the prohibited ground.[30]In Hewage v Grampian Health Board [2012] IRLR 870 the Supreme Court said that it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.[31]In Efobi v Royal Mail Group Ltd [2017] UKEAT the Employment Appeal Tribunal said that section 136(2) does not put any burden on the Claimant. Rather, at the end of the hearing the Tribunal must consider all the evidence from all sources to decide whether there are facts from which the Tribunal could conclude in the absence of an explanation from the Respondent that discrimination has occurred. It is then for the alleged wrongdoer to demonstrate that the discrimination did not occur. Pregnancy Discrimination - section 18 Equality Act 2010[32](1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity. Page 5 of 18(2) A person (A) discriminates against a woman (B) if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably because of the pregnancy, or because of illness suffered by her as a result of it. Unfair Constructive Dismissal - section 95 Employment Rights Act 1996[33](1) For the purposes of this part an employee is dismissed by his employer if – (c) The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[34]Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 - An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once.[35]Hilton v Shiner Limited [2001] IRLR 727 - The implied term of trust and confidence is qualified by the requirement that the conduct of the employer about which complaint is made must be engaged in without reasonable and proper cause. Thus in order to determine whether there has been a breach of the implied term two matters have to be determined. The first is whether ignoring their cause there have been acts which are likely on their face to seriously damage or destroy the relationship of trust and confidence between employer and employee. The second is whether there is no reasonable and proper cause for those acts. For example, any employer who proposes to suspend or discipline an employee for lack of capability or misconduct is doing an act which is capable of seriously damaging or destroying the relationship of trust and confidence, yet it could never be argued that the employer was in breach of the term of trust and confidence if he had reasonable and proper cause for taking the disciplinary action.[36]Croft v Consigna PLC [2002] IRLR 851 - The implied term of trust and confidence is only breached by acts or omissions which seriously damage or destroy the necessary trust and confidence. Both sides are expected to absorb lesser blows. The gravity of a suggested breach of the[37]London Borough of Waltham Forest v Omilaju [2005 IRLR 35 - In order to result in a breach of the implied term of trust and confidence, a “final straw”, not itself a breach of contract, must be an act in a series of earlier acts which cumulatively amount to a breach of the implied term. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively Page 6 of 18 insignificant so long as it is not utterly trivial. Thus, if an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence but the employee does not resign and affirms the contract, he cannot subsequently rely on those acts to justify a constructive dismissal if the final straw is entirely innocuous and not capable of contributing to that series of earlier acts. The final straw, viewed in isolation, need not be unreasonable or blameworthy conduct. Thus, the mere fact that the alleged final straw is reasonable conduct does not necessarily mean that it is not capable of being a final straw, although it will be an unusual case where conduct which has been judged objectively to be reasonable and justifiable satisfied the final straw test. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined is objective.[38]In WA Goold (Pearmak) Ltd v McConnell and another [1995] IRLR It was said that there is a fundamental implied term in a contract of employment that an employer will reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance they may have. Specific allegations[39]The Claimant relied upon the following 13 events as constituting, individually and cumulatively, both unfavourable treatment by reason of pregnancy/maternity and a breach of the implied term of trust and confidence constituting a fundamental breach of contract entitling the Claimant to resign. 1. On 16 January 2016 Mr Murphy asked the Claimant how she intended to deduct the wages for her absence.[40]The Tribunal found as a fact that this event occurred.[41]The Claimant’s evidence on this matter was at paragraph 6 of her witness statement as follows: “On 14 and 15 January 2016, I was off sick with migraines. When I went back to work on 16 January 2016, Stephen came into my office and shut the door. Whilst he paced from one side of my office to another, he asked me how I was going to deduct the pay for my time off. He was very agitated and impatient. I felt like I had no choice but to say that I would take it off as holiday as he was making me feel very uneasy. When I said it would be as holiday, he just nodded and walked back out. This was the first time a deduction in my wages had been taken for sickness absence.”[42]The Respondent’s account of this matter was contained in the Respondent’s solicitor’s letter dated 31 August 2016 as follows: Page 7 of 18 “You have alleged that you were made to take two days’ holiday when off with illness. This is not true. The Company operates a discretionary sick pay scheme. You had taken 23 days paid sick in 2015. The Company therefore decided not to pay full sick pay and would were informed that SSP would apply to you and you would receive statutory sick pay. It was your decision to use up two days’ holiday rather than lose two days’ pay.”[43]The Tribunal found that, in accordance with the Claimant’s contract of employment, the sick pay was discretionary. The Respondent provided an explanation for not providing full sick pay on this occasion because of the Claimant’s sickness absence record of 23 days in 2015. The decision therefore to not pay full sick pay on this occasion was a reasonable and rational decision.[44]Additionally, it was the Claimant’s decision to take two days’ holiday because she would not be able to afford losing two days’ pay.[45]The Tribunal found that this was neither unfavourable treatment nor a breach[46]Even if it was unfavourable treatment, there was nothing which connected it to the Claimant’s pregnancy.[47]The Respondent’s conduct had reasonable and proper cause and it was in accordance with the Claimant’s contract of employment. 2. On 27 January 2016 the Claimant felt undermined by Mr Murphy’s email regarding Ms Dewey.[48]This allegation related to Mrs Murphy’s email dated 28 January 2016 to Alison Dewey, copied to the Claimant, in response to Ms Dewey’s request for maternity leave: “Congratulations I have forwarded your email to Ali and Joe to make them aware as they are responsible for general running of the company. Jane Murphy”[49]The Claimant’s evidence in this matter was as follows: “7. When I told my colleagues I was pregnant, my colleague, Alison Dewey (“Alison”), also told me that she was pregnant. I told her that she had to formally let the Respondent know, so on 27 January, Alison emailed Jane. Jane told Alison that she would forward her email to both Ali Milne and Joe Murphy as they were now in charge with the general running of the company. I was not aware of this even though Jane would usually send me a copy of an email like this, as my role included the responsibility for office staff.” Page 8 of 18[50]The Tribunal did not find this allegation proved. Although the Claimant’s duties were numerous, the fact is that she was responsible for the running of the office and not for the general running of the company. The Claimant may have regarded Mrs Murphy’s email as undermining but there was no reasonable or rational basis for that assumption.[51]The Tribunal found that Mrs Murphy’s statement regarding responsibility for general running of the company was accurate and could not be reasonably regarded or understood as undermining of the Claimant’s status. 3. On 11 February 2016 Mr Murphy said to the Claimant that she could be sacked on the spot for having salary payments advanced to her.[52]The Tribunal found as a fact that this event occurred. It was not denied by Mr Murphy.[53]The Claimant was taken to task about this matter by Mr Murphy during their meeting on 11 February 2016. In his letter dated 12 April 2016 to the Claimant, he said as follows: “We discovered that you had used your position as office/accounts manager to take money on account of your salary without the Company’s authority or agreement. Even though you did not gain financially from your actions, this was a serious breach of the trust and confidence that should exist between us. Your role demands absolute trust and integrity as you have unsupervised access to the company accounts. I took legal advice on this situation and was advised that the Company would have been entitled to dismiss you for gross misconduct. I decided, however, to deal with the matter informally, as you know, and give you the benefit of the doubt that it would not happen again. As a consequence we have put in place a senior manager to check on the accounts on a regular basis.”[54]In her evidence to the Tribunal the Claimant accepted that she had routinely, as the payroll supervisor, made advance payment of wages to herself although the advances in totality never exceeded her monthly salary entitlement. For example, in February 2015 she made six advance payments to herself. In September 2015 one advance payment. In October 2015 seven advance payments.[55]Her explanation that Mrs Murphy knew about it and had authorised the advances in general terms was, in the circumstances, implausible. Mrs Murphy denied doing so. No reasonable employer would authorise an employee, much less the person responsible for the integrity and operation of the company payroll, to take advances of wages whenever she pleased. Mr Murphy reasonably categorised it as potential gross misconduct which would justify summary dismissal. In those circumstances, his comments to the Claimant were justified. Page 9 of 18[56]Although the Claimant having been told that she could be sacked on the spot could be categorised as unfavourable treatment, it had reasonable and proper cause and there was no evidence to suggest that it was linked in any way to the Claimant’s pregnancy. She had admitted taking the advances of wages over a lengthy period.[57]In the event, no disciplinary action was taken in respect of this matter.[58]The Tribunal found that it was neither pregnancy discrimination nor a breach 4. On 11 February 2016 the Claimant felt she had been demoted.[59]The Tribunal found this allegation not proved.[60]With reasonable cause, Mr Murphy had appointed Mr Milne to supervise the Claimant and check the accounts regularly in view of her conduct in making advance payments to herself. Mr Milne’s appointment had two purposes. Firstly, to supervise the Claimant. Secondly, so that he could take over the payroll role when the Claimant went on maternity leave.[61]The Claimant was not demoted. She had the same duties and the same pay.[62]This was neither pregnancy discrimination nor a breach of contract. 5. On 21 March 2016 Mr Murphy said to the Claimant that she had deliberately changed her holiday so that he would have to pay for that time.[63]The Tribunal found as a fact that this event occurred.[64]The Claimant said as follows: “About a month later, on 19 March 2016, I emailed Stephen to tell him that I had a 21-scan appointment which had slipped my mind. I didn’t receive any response from Stephen but assumed it would be fine as I knew I would be back in the office that day; the appointment was first thing in the morning and so I would only miss about an hour off work. When I got to the office that day, Stephen stormed into my office very aggressively and said that I had deliberately changed my holiday dates so that he would have to ‘pay’ for the time instead of taking it as holiday. He said that he had rights when it came to paying for appointments. I don’t know why he was so angry. I did have the day booked off for holiday before but changed these dated to 17-18 March to allow workmen into my house.”[65]Mr Murphy dealt with this in his witness statement as follows:[66]“The grievance letter also complained that I had accused the Claimant of moving pre-arranged annual leave to avoid attending an ante-natal Page 10 of 18 appointment on her day off. The Claimant had previously booked annual leave on 21 March 2016. On 16 March 2016 the Claimant asked to change this to 23 March 2016 and I had agreed. The Claimant then informed me on 19 March that she had an ante-natal appointment on the morning of 21 March. As a result I felt the Claimant may have asked to move her annual leave for this reason.”[67]The Tribunal found that this complaint by Mr Murphy was in fact relating to the Claimant moving her holiday dates without sufficient notice and failing to provide sufficient notice of the ante-natal appointment. However, no further action was taken in respect of this matter and the Claimant attended both the ante-natal appointment and took her amended leave dates. This was a minor disagreement regarding a mistake in the Claimant’s diary and an oversight.[68]The Tribunal did not find that it amounted to unfavourable treatment or a breach of contract. 6. On 4 April 2016 Mr Murphy said to the Claimant that if she was working on her cake business whilst on maternity leave this would be fraud. He said that he would take her print out as notice to resign and would pay her until June when her maternity leave was to start after which he would not pay her SMP.[69]The Tribunal found as a fact that this event occurred.[70]The Respondent’s solicitor accepted that Mr Murphy used the word “fraud” as described above. The Tribunal found that being accused of fraud could amount to unfavourable treatment and a breach of trust and confidence.[71]However, Mr Murphy’s comments were made as a result of the following text which Mr Milne had found on the Claimant’s “Made With Love Limited” website. “http://www.madewithloveltd.co.uk/about-us It all started when I had my first daughter. I wanted to bake her a special cake instead of giving her a shop bought one (never had I made a cake previous to this, other than at school) From there on I continued to bake her birthday cakes each year as well as baking for family/friends and my second child. In our decision to have a 3rd child, I decided that going back to work full time, this time round would be impossible. I made a bold step forward and decided to see how it could work selling cakes to order. Here I am 1 year later with a business that is growing brilliantly, yet a little slow as I am still working full time and finding with limited time, I am also limited with how much I can do. Page 11 of 18 But the good news is I’ll be on full speed by September/October as I am leaving in June to have baby girl no. 3 and from then on working full time making some fabulous cakes for you guys!”[72]It was not unreasonable for Mr Murphy, having read the above, to conclude that the Claimant was intending to work for her cake making company full time while also claiming maternity pay. Additionally, the Claimant’s contract of employment prohibited the Claimant from working for anyone else whilst employed by the Respondent without prior permission.[73]The use of the word “fraud” may have been clumsy, but it had a reasonable basis. The matter was not related to the Claimant’s pregnancy. The situation would have been the same had it involved statutory sick pay rather than statutory maternity pay.[74]The Tribunal found it did not amount to pregnancy discrimination or a breach[75]The reference to taking the printout as notice to resign was also admitted by the Respondent’s solicitors. However, looking at the wording of the website test, it could reasonably be interpreted as an intention to resign from employment with the Respondent. Mr Murphy had every right to challenge the Claimant on that matter although he did not in fact treat it or accept it as a resignation.[76]The Tribunal did not accept the Claimant’s explanation that the text was not on a “live website” but was put on the web by her web designer with whom she had had an informal conversation and that it had been done without her authority. It is clear that by typing in the “Made With Love Limited” address, the text was available for anyone to read. It was therefore a live website, and it was also clear from the text that it was written by the Claimant personally, not by her web designer.[77]The Tribunal found that this did not amount to unfavourable treatment or a breach of contract. Mr Murphy had reasonable and proper cause for interpreting the text as he did and challenging the Claimant in the way that he did.[78]Mr Murphy denied saying that he would not pay her SMP after June 2016. It was also denied in his solicitor’s letter. However, the Tribunal found as a fact that he did so. It did amount to unfavourable treatment. However, it was not done because of the Claimant’s pregnancy. The comment was made because the Claimant had expressed an intention to resign her employment with the Respondent and then to work full time for her cake company while claiming statutory maternity pay.[79]In those circumstances, although the wording used by Mr Murphy was again clumsy and direct, it had reasonable and proper cause. It did not amount to a breach of contract or pregnancy discrimination. Page 12 of 18 7. On 4 April 2016 Mr Murphy became angry and aggressive saying that she was treating him “like a mug” and how he had “let you off stealing from me”.[80]The Tribunal found as a fact that this event occurred. In this respect, the Tribunal preferred the account of the Claimant to that of Mr Murphy.[81]The words used were capable of amounting to unfavourable treatment. However, the words used were not because of the Claimant’s pregnancy but because of her previous conduct in taking unauthorised advances of pay. It did not amount to pregnancy discrimination.[82]The Tribunal found however that it did amount to a breach of trust and confidence and it did not have reasonable and proper cause. Mr Murphy said during the Tribunal hearing that he did not think the Claimant was a thief and that she had not taken any more in advances than she was entitled to in the course of a month. She never exceeded her salary. In those circumstances, making the serious allegation of “stealing” was a breach of trust and confidence without proper cause amounting to a breach of contract. 8. On 4 April 2016 Mr Murphy came out of the office shouting “not in my time you don’t, I know your game, get back into the office”.[83]The Tribunal found as a fact that this event occurred. The Claimant did not dispute that he had conducted himself as described but he explained that earlier on 4 April 2016 he had taken the Claimant to task about taking excessive smoke breaks and making calls on her mobile phone. When he came across the Claimant outside the office in the street making a call, it is clear that he became angry, raised his voice and told the Claimant to return to the office. However, when the Claimant told him that she was telephoning to obtain a medical appointment, he relented and allowed her to continue.[84]In her witness statement, the Claimant said: “I didn’t feel well and Stephen then realised that I wasn’t well so said that I could call the doctors to get an appointment.”[85]This was unfavourable treatment but it was unrelated to the Claimant’s pregnancy. The reason for Mr Murphy’s conduct was because of his concern regarding the number of breaks taken by the Claimant which he had raised with her only that morning. It was not pregnancy discrimination.[86]Nor was it a breach of contract. Mr Murphy had a reasonable and proper cause for acting as he did. Although it was an overreaction initially, when the situation was explained, he quite properly allowed the Claimant to continue with her call. 9. On 8 April 2016 the Claimant’s work e-mail password was changed without explanation. Page 13 of 18[87]The Tribunal found as a fact that this event occurred. The Respondent’s case was that it was a process of investigating the Claimant’s use of the computer for her private cake company business and because she was then absent on sick leave and would not need access to her computer which could be accessed remotely from home.[88]The Tribunal found that this was unfavourable treatment but it was not pregnancy related.[89]Nor was it a breach of contract. The Respondent was genuinely concerned about the Claimant’s use of its computer system and the simplest and most effective way of addressing that concern was to change her password. That was the most effective way of preventing any misuse of the computer system. 10. On 10 April 2016 the Claimant’s office keys were withdrawn from her.[90]The Tribunal found as a fact that this event occurred.[91]The Tribunal found that it amounted to unfavourable treatment but there was no evidence to suggest that it was related to the Claimant’s pregnancy.[92]It did however amount to a breach of trust and confidence. It had no reasonable and proper cause. Unlike the withdrawal of the computer password, there was no reason to withdraw the Claimant’s keys at that date because, although she did not return to work, as at 10 April 2016 her sick note was only for two weeks. The reasons given for withdrawing the keys were implausible. The first reason was that the keys were required for Rosie but the Respondent would have known that Rosie had her own set of keys. The second reason, that spare copies needed to be cut, was also implausible because these could be cut from any set of keys and not just the Claimant’s set. In the absence of any apparent reasonable cause, the withdrawal of keys during a period of two weeks’ sickness absence it amounted to a breach of trust and confidence. 11. On 7 June 2016 the Claimant asked her employer to properly address her grievance, but the Respondent failed to progress her grievance.[93]The Tribunal found as a fact that this event occurred.[94]The Respondent’s grievance policy required a grievance meeting to be held normally within one week of receiving a written grievance. The grievance was put in writing on 27 April 2016. It included all of the allegations referred to above and accused the Respondent of pregnancy discrimination. The Claimant remained absent on sick leave and had requested to bring her maternity leave forward to 25 May 2016. Page 14 of 18[95]On 6 May 2016 Mrs Murphy confirmed receipt of the grievance and requested the Claimant to put forward a possible resolution as to how they could meet to discuss the grievance.[96]On 12 May 2016 Mr Milne, who had been requested by Mr and Mrs Murphy to deal with the grievance (because much of it related to their alleged conduct) wrote to the Claimant enclosing a copy of the Respondent’s grievance policy and asking for available dates for a grievance hearing. Although the letter was in response to the Claimant’s grievance, it also raised again the allegation that the Claimant had been working on her cake business during working hours and added an entirely new allegation that the Claimant had, for the past four or five years, incorrectly calculated the technicians’ hourly wages causing a loss to the Respondent. The letter said: “It would be our intention to have a meeting to investigate these issues following on after the grievance hearing”.[97]The Claimant replied on 31 May 2016 and her letter included: “I am now on maternity leave and do not feel able to attend the meeting which would put even more stress on me which I am not prepared to do. I have also spoken with a doctor who has said I am not fit enough to attend a grievance meeting. I would request that you reply to my grievance in writing.”[98]She also complained about the raising of the issue regarding incorrect payment of wages and said: “Once again I feel these points are an attempt to try and raise a disciplinary matter now that I am pregnant and because I have raised a grievance. … I do feel that the company has made no attempt to try and resolve my issues raised and have continued to treat me unfairly since raising the issues. I feel I have been victimised, sexual discriminated against and constructively dismissed by the company. I will await your reply in writing to my grievance.”[99]The Claimant received no response to that letter and therefore sent a reminder on 7 June 2016. It was almost identical to the earlier letter dated 31 May 2016.[100]Once again, the Claimant received no response. Accordingly, on 15 August 2016 she sent a letter of resignation with immediate effect. The letter included most of the allegations referred to above and also included: “I am resigning because of your continuing mistreatment of me. It is my view that your conduct has breached your obligations to me as an employee and made it impossible for me to continue working for you. Your conduct amounts to constructive unfair dismissal. In addition it is my view that your treatment amounts to discrimination and in particular is due to my pregnancy and maternity leave. I have instructed Slade Legal solicitors to obtain compensation for me. They will in the first instance raise this matter with ACAS for early conciliation which Page 15 of 18 I understand they are required to do. If conciliation is not achieved they will issue employment proceedings against you for constructive dismissal and discrimination.”[101]The Tribunal took account of the decision in the Gould v McConnell case referred to above. In this case there was no reasonable or prompt redress of the Claimant’s grievance by the Respondent.[102]The only explanation for the three month delay between 27 April 2016 (grievance) and 15 August 2016 (resignation) was given in Mr Milne’s witness statement as follows: “In light of the Claimant’s comments that she was still suffering from stress and did not feel up to attending a grievance meeting, we decided to wait until the Claimant’s baby was born before formally responding to her grievance in writing. However, before we were able to respond, the Claimant sent her letter dated 15 August 2016 resigning with immediate effect.”[103]In his evidence before the Tribunal, Mr Milne said that he had made the decision to await the Claimant’s child being born after discussing the matter with Mrs Murphy and that the decision was made on either 14 or 17 June 2016. However, he did not provide any dates in his witness statement and Mrs Murphy’s statement was silent on the matter. In any event, it is not in dispute that, if such a decision was made, it was never communicated to the Claimant.[104]The Claimant had before it no reliable evidence of any substantive investigation into the Claimant’s grievance other than a reference by the Respondent’s representative to a document which was said to contain the Claimant’s grievance with responses endorsed upon it from Mr and Mrs Murphy and Mr Milne. Both parties’ representatives said that because the document, which was not in the bundle before the Tribunal, also contained endorsements by the Respondent’s solicitor which attracted legal professional privilege, they had agreed that the document should not be put in evidence. Mr Milne had alluded to such a document in his oral evidence that the endorsements were made on the grievance as part of his investigation but he had not reached an outcome.[105]Accordingly, the Tribunal concluded that it was taken no further forward by reference to this undisclosed and unadmitted document.[106]There was no reliable evidence that Mr Milne and Mrs Murphy made a decision to delay the investigation of the grievance until after the Claimant gave birth. Nor was there any reliable evidence that the Respondent had any intention of providing a prompt or reasonable response to the grievance. The only substantive response to the grievance came from the Respondent’s solicitor in the letter dated 31 August 2016. Page 16 of 18 12. On 12 May 2016 the grievance investigator threatened the Claimant with disciplinary action.[107]The Tribunal found as a fact that this event occurred.[108]It was not conduct related to the Claimant’s pregnancy but it did amount to a breach of contract. There was no reasonable and proper cause for referring to the incorrect payment of technicians’ wages in response to the Claimant’s grievance and mention of a formal investigatory meeting following on after the grievance hearing. It was an entirely separate matter and it was unwarranted in such a response. 13. On 15 August 2016 the Claimant resigned.[109]The Tribunal found as a fact that this event occurred. Unfair Constructive Dismissal[110]The Tribunal found that the Respondent’s conduct in withdrawing the Claimant’s keys, raising unrelated allegations amounting to a threat of disciplinary action in response to the grievance and failure to progress the grievance in any meaningful way over a period of three months amounted cumulatively to a breach of trust and confidence which was a fundamental breach of contract. The Claimant resigned in response to this conduct.[111]She stated in her resignation letter: “I wrote on 31 May 2016. In that letter I complained that you were effectively ignoring my grievance and were instead intent on turning my complaint into a disciplinary process based on entirely spurious and made up allegations. I said these attacks mounted to victimisation. I asked that you treat this letter as a further complaint and also asked that you deal with my complaints by paper. I warned you that if you failed to deal with my grievances properly I may have no choice but to resign. That was nearly 2 months ago and I have heard nothing from you. I am therefore forced to resign.”[112]The Claimant also mentioned the removal of her keys in the letter.[113]The conduct of the Respondent was such that the Claimant was entitled to resign without notice. It was a constructive dismissal within the meaning of section 95(1)(c) Employment Rights Act 1996.[114]There was no reasonable and proper cause for the Respondent’s conduct. The constructive dismissal was therefore unfair.[115]The complaint of unfair constructive dismissal was well founded. Page 17 of 18 Pregnancy Discrimination[116]The Respondent’s conduct towards the Claimant was unreasonable, but discrimination cannot be inferred from unreasonable conduct alone. It is widely understood that it is unlikely in discrimination cases there will be direct, overt and decisive evidence that a Claimant has been treated less favourably because of a protected characteristic. Decisions may, therefore, be based upon inferences drawn from actual findings of fact. No such facts, however, were apparent.[117]The Tribunal could find no evidence of any animosity by the Respondent’s witnesses in respect of the Claimant’s pregnancy. Her pregnancy in 2012 proceeded without incident and there was additionally no evidence of any animosity towards Alison Dewey’s pregnancy announced at almost the same time as the Claimant’s. The Respondent was fully aware that the payment of maternity pay would not cause any financial liability and there were contingency plans in place to cover the Claimant’s duties during maternity leave.[118]There was clearly serious disagreement and mistrust between the Claimant and Mr Murphy over several matters but that arose as a result of the Claimant’s cake company, her use of the Respondent’s computer system for that purpose, her unauthorised advances of salary and her propensity to take additional smoke breaks away from the office. Those matters were well documented. The Tribunal found that they formed the basis for the Respondent’s unreasonable conduct.[119]In none of the circumstances of the events described above did the Tribunal find that there were facts proved from which the Tribunal could conclude in the absence of an explanation from the Respondent that discrimination had occurred.[120]The complaint of pregnancy discrimination was not well founded.