Case No 4100531/2024Venue EdinburghHearing 28th and 29th October 2024, 26th, 27th, 28th February and 13th March 2025
Between
Raheela ZanibClaimantAlmond Blossom Care LtdRespondent
Before
Employment Judge McFatridgeMs Okoro, Service for respondentManager for respondentDate 16 April 2025
JUDGMENT
The unanimous Judgment of the Tribunal is :(1) The respondents unlawfully withheld wages from the claimant in the sum of £3078.45 . The respondents shall pay to the claimant the said sum of £ 3078.45 in respect thereof. ETZ4(WR)(2) The claimant was due the sum of £1,523.25 on termination of her employment in respect of leave accrued but untaken as at that date. The respondents shall pay the said sum of £1,523.25 to the claimant.(3) that the claimant’s claim of pregnancy discrimination does not succeed and is dismissed.
REASONS
The claimant submitted a claim to the Tribunal on 26th January 2024 having[1]completed ACAS conciliation between 28th November 2023 and 9th January 2024. In section 8 of her ET1 form the claimant ticked the boxes for unfair dismissal and discrimination on the grounds of pregnancy or maternity and race. She also ticked the box to state she was owed holiday pay and other payments. The respondents submitted a response in which they denied the claims. The case was subject to a degree of case management with Preliminary Hearings taking place on 16th April and 15th May 2024. At the second Hearing on 15th May the claimant was assisted by an Interpreter. Following that Hearing it was noted that the claimant’s discrimination claim was restricted solely to a claim she had been discriminated against on the grounds of her pregnancy or maternity and the sole act of discrimination alleged was dismissal. It was therefore confirmed that the claims were for automatically unfair dismissal under section 99 of the Employment Rights Act 1996 and pregnancy discrimination under section 18 of the Equality Act 2010. The claimant did not have sufficient qualifying service to claim ordinary unfair dismissal. It was confirmed that there were no other discrimination claims other than the claim of pregnancy related dismissal as noted above. With regard to other financial claims it was noted that the claimant wished to pursue claims in respect of non payment of holiday pay and other payments. Her PH Agenda referred to non payment of sick pay. The claimant was ordered to provide further information within a set period including the amount claimed for non payment of holiday pay and non payment of sick pay and how this was calculated together with the contractual basis of any claim in respect of non payment of sick pay. Subsequent to this the claimant did submit a further letter to the Tribunal however it did not address the issue raised in a way which assisted the Tribunal to understand the claim. A Final Hearing was fixed to take place over 2 days in October. Unfortunately, on the first day of the Hearing it was clear that neither party was properly prepared. Neither had brought sufficient documents for the Tribunal’s use. The Hearing was adjourned for a time to allow parties to get their documents in order and the Tribunal administration assisted with photocopying documents. Unfortunately, even after this assistance it became clear that the claimant’s bundles did not all contain the same documents and that where the bundle did contain the same documents it had a different page number in each bundle. It was also clear that a number of documents which the Tribunal would have expected to have been lodged were missing. The claimant commenced her evidence however this was not completed in the time allowed. The Hearing was therefore adjourned to 3 days in February. Unfortunately, this still proved insufficient to conclude the examination of the respondents’ witnesses. The Tribunal finally concluded the evidence and heard submissions from the parties on 17th March. During the course of the Hearing the Tribunal heard evidence from the claimant and her husband. Evidence was led on behalf of the respondents from Ms Okoro (who also represented the respondents) and from David Ebuka who was the respondents’ Operations Manager and had been the claimant’s Supervisor. Throughout the Hearing both parties sought to lodge additional documents on an almost daily basis. In each case it was clear that the documents would be of assistance to the Tribunal and indeed should have been lodged from the outset. The Tribunal therefore permitted them to be lodged late. On the basis of the evidence and the productions the Tribunal found the following essential matters relevant to the claim to be proved or agreed. FINDINGS IN FACT[2]The respondents are a care company which provides domiciliary personal care to service users in their own homes. Their work overwhelmingly comes from Edinburgh City Council who closely control how they operate. They are supervised in their operations by the SSSC as well as by Edinburgh Council. The company was formed in or about 2015. They carry out their operations in Newcastle as well as Edinburgh and Midlothian. They were registered to provide care in Edinburgh and Midlothian from 2017 onwards. They have 83 full time carers working for them in Edinburgh together with office staff. Their care workers carry out around 600 domiciliary visits per day and provide over 5000 hours per week of domiciliary care. Almost all of this is paid for by Edinburgh City Council. They do have a facility for providing private care; for instance where this is needed short term after hospital discharge however currently they only have 1 service user in this category. The remainder are paid for by the local authority. The respondents are fully regulated both by the local authority and the Care Inspectorate.[3]Generally a new service user will be assessed by the local authority Occupational Therapy Department. A Care Plan will be produced setting out the type of care which is required. The respondents will then provide carers who attend in order to carry out what is on the Care Plan. A Carer will be allocated a certain number of visits per day with a certain number of tasks to be carried out for each service user and a certain amount of time allocated for this purpose. Carers are expected to follow the Care Plan closely and there are various set procedures as to how things are to be done. This includes, for example, moving and handling instructions where Carers are told that on no account must they seek to lift individuals. Where an individual cannot mobilise themselves then a hoist requires to be used. Generally speaking, visits will either be single handed or two handed. Where a hoist requires to be used visits will be two handed.[4]Carers are expected to travel to each service user’s house in their own time and using their own transport. The respondents provide a flat monthly fee of £30 to Carers to assist with this cost.[5]In order to monitor and manage Carers the respondents use a computerised system called “Care Line Live”. This consists of an app which each Carer is expected to download to their telephone. Carers will receive details of the service users they are to support including their Care Plan and the time that visits are supposed to happen on this app. They are then expected to log in to each service user by scanning a QR code which each service user keeps in their home. This keeps track of where each Carer is and there is also provision in the app for Carers to make case notes and handover notes setting out how they have interacted with the service user in each case. Some of this information is available to the respondents’ Managers in real time which means that if, for example, someone has not turned up they are able to send a backup. Usually for each service user there will be 2 main Carers and 1 backup Carer allocated.[6]For some years the respondents have sought to recruit Care Workers from overseas using a Home Office sponsorship programme. The respondents have received over 80 sponsorship licences which have allowed them to sponsor a large number of Care Workers to come from overseas. Such a sponsorship visa is highly sought after by those who seek to obtain the right to permanently reside in the UK. Generally speaking, a worker who comes over on such a sponsorship visa will have the right to reside in the UK for themselves and their family for the period of the visa which is usually 5 years. At the end of that period then it would be anticipated that they would qualify for permanent leave to remain in the UK. The respondents’ position is that unlike many in the care sector they do not make any charge to potential Care Workers for this service and it is their position that they have heard many companies in their position charge £10,000 or £15,000 to overseas applicants looking for sponsorship. One feature of the sponsorship visa is that if the employee leaves the employment of the sponsor within the 5 year period then they only have a short period (either 30 or 60 days) within which to either find another sponsor or leave the UK.[7]In early 2023 the claimant was in the UK completing a course of post graduate study in Psychology. She was present on a student visa as was her husband. She had a child however, due to the fact that the child did not have a visa and due to the restrictions on her student visa, the child had to remain in Pakistan with the claimant’s family. As well as completing her studies the claimant also had a part time job in a restaurant which was covered by her student visa.[8]The claimant became aware of the respondents through a friend of hers who worked for the respondent in Newcastle. The claimant contacted the respondent who offered her work. Normally the respondents preferred potential Carers to work with them for several months before they would apply for a sponsorship visa for them but in this case the respondents understood that because of the claimant’s immigration position she was extremely anxious to be sponsored and to change her visa to a regular tier 2 visa as soon as possible. The respondents therefore commenced the sponsorship process very shortly after the claimant started working for them.[9]Prior to starting work the claimant required to go through a fairly extensive training programme which was supervised by Mr Ebuka. The training included 3 modules on safeguarding, 2 modules on moving and handling, 1 module on dealing with aggression and control, 1 module on communication, 1 module on consent, 1 module on tissue viability, 1 module on food and nutrition and 1 module on hygiene. There were around 30 in total which required to be completed by the claimant before she commenced seeing service users. The claimant completed these modules and started seeing service users in or about May 2023. The respondents’ position was that they felt the claimant had a very good disposition. She appeared to take on board what she was being told and confirmed that she fully understood what she was doing. The claimant has limited English and the Tribunal considered that it was fairly likely that at this point the claimant was simply nodding and telling the respondents what they wanted to hear rather than taking in all of the training which she was being given.[10]During this initial period there were a couple of instances where Mr Ebuka was concerned about the claimant’s understanding. There was 1 incident where the claimant had turned up at a house and found the service user did not come to the door. As one would expect the respondents have a fairly clear protocol for this type of situation as it may be that the reason the service user has not come to the door is that they cannot because they have had some health episode. Instead of following the process the claimant simply left and only contacted Mr Ebuka later. Mr Ebuka had to instruct the claimant in following the correct protocol which was to get in contact with the police and indeed it proved that in this case the service user had had a health episode which had caused them to not be able to answer the door. There was another incident where Mr Ebuka became concerned that the claimant may need some remedial moving and handling instructions.[11]During the interview process the respondents had indicated to the claimant that they required her to have a driving licence and access to a car. The claimant had assured them that she did. It transpired that this was not in fact correct. The claimant’s husband had access to a car which he drove on night shift. It would appear that the claimant could only get to service users either by having her husband drive her there or by taking public transport or by riding a bike. The respondents were not aware of this at the time although it subsequently became clear to them that the claimant did not have access to a car and that occasionally she was arranging for her husband to drive her to service users’ homes. The respondents were concerned about privacy issues that were raised by this.[12]Ms Okoro who is the respondents’ Service Manager carries out supervision of the Carers from time to time. This takes the form of calling them in for a meeting at which they can discuss matters of mutual concern. Ms Okoro called the claimant in for a supervision meeting on or about 22nd May. At that meeting she said that in general terms they were very pleased with the claimant. There had been a couple of issues but they thought she was doing well. They felt that she had a cheerful disposition and the service users appeared to like her. Notes of the staff supervision on 22nd May 2023 were lodged (R8.1-R8.2). The 13. claimant commented that she was having difficulties with English but then went on to say everyone is so nice and cooperative when I face any problem. Everyone help me in my work. I have not any complaints. Thank you”. The respondents believed that the claimant had completed all her training and stated that they were very proud of her and she was appreciated and that she should keep up the good work.[14]A week or so prior to this the claimant had fallen off her bicycle whilst cycling to a service user. She had fractured her arm. Her wrist was in a plaster and bandage. During the course of supervision Ms Okoro noticed this for the first time. The claimant did not tell her that she had fallen off her bicycle but simply said that she had hurt her arm. Ms Okoro advised her that in future she should tell the respondents of any such incident since this could obviously affect her ability to carry out personal care. In any event the claimant assured her that it was no problem for her.[15]Whilst the claimant was attending her supervision she also spent time with Mr Ebuka who took the opportunity to give her some refresher training on moving and handling. The claimant indicated to Mr Ebuka that she fully understood the refresher training he had given her.[16]At that time the claimant was working for the respondent on a non sponsorship contract which was effectively a zero hours contract. Neither party lodged this original contract.[17]In June 2023 the claimant’s sponsorship and visa were confirmed by the Home Office. The claimant’s part of the sponsorship arrangements required her to sign a new contract which was not a zero hours contract. The contract was signed on 21st June by the claimant. A copy of the contract was lodged (R3). The contract was said to have started on 1st June 2023 and to continue until 1st June 2028 (section 3.1). The contract was specifically contingent on the claimant obtaining a Migrant Skill Worker Health Care Visa within the Care Workers and Home Carers Occupation Code 6145. Condition 4 of the Agreement set out that there was a probationary period starting on 1st June 2023. It is as well to set out the full terms of this. It stated: “The first 6 months of your employment will be a probationary period. During this period the sponsor will monitor your conduct, performance, skills and attitude. The sponsor may bring your employment to an end at any time during this period. The sponsor is not obliged to extend this probationary period due to the high quality and standard required in this field of work caring for the vulnerable. Depending on the circumstances the sponsor may consider granting an extended probationary period to enable further assessment should this not be sufficiently evidenced at the end of the original period. If the extended probationary period is unsuccessful your employment will be brought to an end.” (section 4)[18]Section 5 confirmed that the claimant’s place of work was the claimant’s Head Office but that she would be required to travel to service users’ homes. It was confirmed that she would not be paid for travel. It was confirmed that the paid time started when she arrived at the assigned client’s residence as per the rota.[19]Section 7 of the contract stated: “Your rate of pay for the position of Support Worker/Care Giver is £24,372 per annum at the rate of £10.90 per hour plus any enhancements that are applicable to the service in which you work. Any such enhancements will be detailed to you in writing. 7.2 If you work additional hours at any other service or in any other role at which the rate of pay for that service or that role is lower than your rate of pay, you will be paid the lower rate of pay applicable to that service or that role. . 7.4 A monthly allowance of £30 per month towards travelling costs to and from work will also be provided. You are expected to come in person to the office between the 5th and 8th of each month to sign and pick up the pass. No pass can be redeemed after the 8th.”[20]For hours of work it stated at section 8: “You will be expected to work a minimum of 43 hours per week, 172 hours per month (full time hours) on a flexible rota system, which may include evenings, nights, weekends and public/bank holidays as necessary in accordance with the needs of the services and people we support. The shift pattern is within 8am-10pm as per rota Monday to Sunday and be flexible to work any days of the week when required. Some of the people we support may request an early start between 6am and 7am visits or night shifts/sleepovers at the residence of the people we support. Our service is 24 hours service and operates 7 days per week. In addition you may be expected to work such additional hours or days as required within the needs of your service or to cover other staff holidays and sickness absence. A previously published rota can be changed at any time or day by the coordinator to reflect these needs. It is therefore important that you pay attention to your electronic device for daily and weekly rota updates. 8.3 You may be offered an opportunity to work additional hours more than your contracted hours as stated in Clause 8.1 in order to cover support requirements. The sponsor is not obliged to routinely offer you additional hours and save for exceptional circumstances. You will be paid at your normal rate of pay for any such additional hours worked subject to Clause 7.2 above. 8.4 Unless otherwise stated breaks will be unpaid. You are entitled to a 30 minute unpaid break in any 6 hours of continuous working. 8.5 The 48 hour limit on average weekly working time set out in the Working Time Regulations 1998 shall not apply to your employment. Should you wish the 48 hour limit to apply to your employment you should give written notice to your Line Manager and that will be arranged within 3 months of your letter.”[21]Section 9 relating to annual leave confirmed that the leave year ran between 1st April and 31st March in each year. It contained a standard Clause at section 9.5 noting that if an employee left during the leave year then they would be paid pro rata for any untaken leave in their final pay.[22]Section 10 dealt with sickness absence and stated: “10.1 In the event that you are unwell and unable to attend work, you are required to comply with the sponsor’s Sickness Absence Policy in respect of reporting your absence. 10.2 If you are absent from duty due to sickness or injury you will be paid Statutory Sick Pay (SSP) in accordance with the governing rules at the time. SSP is not payable for the first 3 days of a sickness absence, which are classed as waiting days. At the absolute discretion of the sponsor employees who reach 5 years service may be entitled to 1 week contractual pay within a 12 month rolling period. This entitlement is subject to having followed the sickness absence reporting process. 10.4 If a period of sickness absence is or appears to have been caused by the action to a third party in respect of which you may able to recover compensation e.g. a motor accident you must immediately notify the sponsor and provide such further information and cooperate in relation to any legal proceedings as the sponsor may reasonably require. Any sick pay the sponsor pays to you in respect of that period (other than SSP) will be repayable on demand provided the amount to be repaid does not exceed any compensation recovered. 10.5 Further conditions relating to absence are available in the Sickness Absence Management and Time Off Policies available on the sponsor’s staff folders.”.[23]Certain of the terms of the contract particularly those in relation to salary were required to be included as part of the sponsorship arrangements with the Home Office. In general terms the respondents understood the Home Office were not prepared to allow sponsorship where an individual was on a conventional zero hours contract. Despite this it appears that the respondent treated those who were given the new contract as if they were on a zero hours contract.[24]In practice, fact even where employees had a contract the same as the claimant’s which entitled them to a salary the respondents’ practice was that if the employee worked less than 43 hours per week then they would only be paid for the hours they worked and would not be paid at the rate of their salary. This was not an issue for most employees since many employees were keen to work and most in practice worked more than 43 hours per week. It did mean that where an employee worked less than 43 hours per week and were only paid at their hourly rate for the hours worked then, if like the claimant their contract had a clause entitling them to an annual salary then they were paid less than their entitlement. The respondents’ position was that at some stage after the claimant joined they changed the terms of their standard contract so as to bring this more in line with their actual practice however the claimant’s contract remained in the terms set out above.[25]In early June 2023 the claimant was allocated to work on a round which involved a lot of doubled up appointments. This was because certain of these service users required a hoist. One of these service users was an individual called RA.[26]RA’s Care Plan involved the claimant providing him with personal care/meal preparation and medication prompt. There were 2 people required because he required a hoist to be mobilised. The Moving and Handling Plan for RA was lodged (R2.0-R2.1). This shows the operation of the hoist.[27]The claimant was due to attend for an hour in the morning, an hour between 11 and 12 and an hour between 16:30 and 17:30 and again between 8pm and 9pm in the evenings.[28]On or about 4 June, the claimant was due to arrive for the afternoon visit at 16:30 but did not arrive until 17:03. By the time she arrived the other Care Worker had already been there and had left for another job.[29]In terms of the respondent’s procedures the claimant should not have tried to move RA herself or operate the hoist.[30]An incident took place where the claimant and one of RA’s family members who was also present attempted to move RA in the hoist. RA fell off the hoist and the claimant was unable to hold him on it because of her arm injury. RA fell to the floor.[31]In terms of the respondent’s procedures this should have been immediately reported to Mr Ebuka and escalated so that a proper assessment could be made and appropriate reporting carried out. The claimant did not do this.[32]An excerpt from the claimant’s records compiled from the app was lodged (R10). The claimant’s comment on the visit was “the visit went well”. In the handover note she stated “When we arrived at Robert home he was fine sit on the chair but down his son daughter and grandson was at home. We tried push up but not then we try with equipment. His daughter pushed chair. He fall down but he was fine and angry with daughter then we put and sit on the chair. He was fine when I left his house. He was eating food.”[33]The claimant is then recorded as visiting for the final visit of the day and noting that ‘all was fine’.[34]Although the claimant had put something in the handover note about the incident these handover notes are not routinely checked by management. They are for the benefit of the next person providing care which in this case was the claimant herself. The respondent’s management were therefore entirely unaware of this incident having taken place. On or about 14th June the respondents were contacted by RA’s Occupational 35. Health Advisor. They advised the respondents that RA had been admitted to hospital where it had been discovered that he had sustained a fall. The circumstances of the fall were being investigated and there was such concern that an investigation by the Care Inspectorate was being commenced. Mr Ebuka was extremely concerned about this particularly as the respondents knew nothing of the fall. He contacted the claimant and asked her to provide her with a statement. The claimant texted the statement to him on 15th June. This was lodged (C12). In it she stated: “Hi David I hope you are doing well. On 4th June at 4.30pm when I arrived at RA home there were 3 people, his daughter, his son and his grandson. He was down on the chair already and the family were trying to push it up but they couldn’t, when I arrived her daughter said to please push up my colleague was going next client home after I empty urine catheter. She was going next client. Me and his grandson tried to push it up but he was shouting in anger that don’t touch me. His grandson bringing equipment and said we can try this to lift him up and when we were about to lift him up in the chair her daughter mistakenly and unintentionally took the chair a bit on the side when he was about to fell off but he didn’t. Because me and his grandson grabbed him up before he falls on the floor and then we laid him on the floor. He didn’t get hurt in any way at all and also didn’t fall. Thank you.”[36]Mr Ebuka was obliged to complete a formal notification to the Care Inspectorate of this incident. A copy of his formal notification was lodged (R16). He noted that they had been notified of the incident on 15th June by the Occupational Therapists. He sets out what he was told in the second and third paragraphs on page 4. He states: “The OT spoke to RA’s son DA and received some feedback on a manual handling incident which took place. He did not want to raise a formal complaint and noted that he does not want the worker involved to get into trouble as he has no other issues with her performance and feels that this was a one off incident. RA’s son reported that the worker concerned had her arm strapped up that day. The care worker also appears to have said that using the sling and hoist should be a 2 man job but that she would go ahead with the grandson supporting. DA reports that he heard an almighty thump and on coming into the lounge found his father on the floor. The catheter bag had become unattached from the tubing and his dad was squealing a bit. All 3 then rolled Mr A to reposition the sling and used the hoist to raise Mr A back up onto his chair. The grandson noted that this time the strap was used differently and placed through the leg straps which appears to have been missed in the first manoeuvre. He reports that the care worker helped to clean the floor following the catheter incident then informed the family that due to the time she would have to move on so was unable to support with Mr A’s meal. He went on to note that the respondents were unaware of the incident at the time and did not find out about it until reported by the OT 11 days later. He went on to say that every visit was scheduled as a 2 person visit but that on this occasion the other Care Worker had arrived and then left after having changed RA’s catheter. He noted that there appeared to have been some arrangement made between the 2 Care Workers for this. He went on to confirm that the claimant had full training and had recently attended refresher training on moving and handling on 22nd May. He said that it had been noted that her arm was strapped and she had said how she had hurt her hand a few days previously but she was fine. He also noted that she had demonstrated to the Operations Manager that her hands were fine. He said that they were not informed that the Carer had any injury which would prevent her from carrying out her duties. If she had then she would have been given the time off to recover if required because they had sufficient and capable cover and bank Carers in the area. He went on to state that all Carers were aware of the Moving and Handling Plan for Mr A. He confirmed that he had specifically gone through this Plan with the Carers at Mr A’s home. He set out the claimant’s statement of the incident she had taken from her as being “On 4th of June I arrived at RA’s home quite late around 5pm and I informed my colleague that I was running late because she was waiting for me at RA’s home. When I arrived there were 3 people there, his daughter, son and grandson. RA’s son was in the kitchen and RA’s daughter and RA’s grandson were trying to move RA up the recliner chair because he had slipped a bit down the chair but they were unable to assist him to sit properly in the chair. RA was shouting for us not to touch him. The sling is usually left in the chair as instructed. While we were using the remote to adjust the chair it tilted to the left and RA slipped but he did not fall because his grandson and myself held him and helped him onto the floor. RA did not fall at all during this. RA’s grandson brought the equipment to try and lift RA that he will assist me to lift him up in the chair. I let them know that I couldn’t do this without my colleague, but the family helped and we eventually got him to sit properly on the chair with the grandson and the daughter assisting. Since that day we stopped using the chair because the chair is not good and usually tilts to 1 side. RA’s daughter SA also said it’s not good for her father’s recovery and he seems to be better and without pains in the bed.”[37]Mr Ebuka went on to note that “We have corrected the Carer and shared this with other Carers as well that these tasks should only be carried out with their colleague who is also trained and not even family members should participate in this.”. He went on to state: “We have called a meeting with all the Carers that support Mr Alexander to confirm that they understand the Moving and Handling Plan which they have all confirmed that they do. Even then updates and refresher training on the Plan were provided. We have reiterated that Carers must be on time for each visit and alert the office not just the service user, if they are running late so that we can advise on the proper actions on finding a replacement care staff operating in the area if required.”.[38]Following this incident the Care Inspectorate did not take any further action. The respondents also had to report the matter to Edinburgh City Council as the sponsoring body for RA. They also investigated the matter and took no action.[39]In the meantime, while this was going on the claimant’s husband contacted RA’s family and arranged for them to send a text to the respondents which stated: “Myself and my sister wish to make it clear that we accepted that whilst the incident with my dad shouldn’t have happened it was simply an accident. We made clear when we spoke to Almond Blossom that this was the case and we didn’t want to see Zanib getting into any trouble over it. ….”[40]The respondent did not take any formal disciplinary action against the claimant in respect of this incident. She received the additional training and discussion regarding moving and handling which was provided to the other Carers about the need to adhere to the Care Plan. The incident did however somewhat shake the respondent’s confidence in the claimant particularly as she had failed to advise them of the incident at the time.[41]The claimant continued to work during July but went off sick on 6 July. The claimant provided the respondent with a Fit Note dated 4th July 2023 confirming that she was unfit to work having had a viral illness. This Fit Note was lodged (R6). The Fit Note was in fact not provided by the claimant to the respondent until 6 July. By this time the claimant had in fact worked shifts on 4th, 5th and 6th July. She remained off sick until 12th July. This was shown in the calendar lodged by the respondents for July (R15). It noted that the period between 7th July to 12th July was “requested time off”. The claimant did not receive any payment of SSP during this period.[42]The record sheets for the claimant’s attendance during the month of July were lodged (R11, R17). These show that the claimant regularly arrived late or departed earlier than she was meant to in terms of the rota. As an example on 1st July she was meant to give 1 hour personal care from 7am until 8am. The record shows she arrived at 7.37 and departed at 7.45. In the afternoon she was meant to care between 16:30 and 17:30. She arrived at 17:04 and left at 17:18. For the course of the month it was noted that on average she provided 39 minutes and 10 seconds less care in each hour she was rostered to work. This meant that whereas the Care Plan suggested that she was to provide care for 1 hour she was in fact providing care for slightly under 21 minutes. There were also issues with punctuality. Ms Okoro who was managing the claimant became concerned. She noted that the claimant did not have access to a vehicle as she had promised. There appeared to be issues but when she contacted the claimant she claimed everything was well.[43]At this stage it would appear that the claimant’s principal concern was that if she admitted there were any problems then this might have an effect on her sponsorship and a knock on effect on her visa which could potentially mean that she and her husband would require to leave the country. By this time her husband’s continued presence in the UK depended on the claimant’s visa. There appears to have been a classic mismatch in that the claimant did not want to admit any problems because she was worried about her sponsorship and visa but on the other hand the respondent’s management were becoming concerned that the claimant did not appear to be frank and truthful.[44]During the month of July the claimant discovered that she was pregnant. The pregnancy was unplanned. She was around 11 weeks pregnant. She advised the respondents that she was pregnant on 29th July. She reported it initially to Mr Ebuka who told her to advise Ms Okoro the Service Manager. The claimant sent an email to Ms Okoro on 29th July (C24). This stated “Hi Ma’am I hope you’re doing well Ma’am. I am pregnant and this was unplanned baby. I don’t know I’m pregnant but now I’m not well. I’m not able at this time personal care and cleaning. I have need of help please if possible in my pregnancy. Give me single call in morning at Bruce home. During personal care start vomiting at client home. Really sorry but this is not in my hand. I speak with midwife. She said she give me letter for this. Please request I am not able double call and personal care during pregnancy if possible give me other clients when giving food and medication. I hope you understand my feeling. Thank you.”.[45]Ms Okoro contacted Mr Ebuka to confirm the position.[46]The respondents have a fairly set routine when workers become pregnant. Given the demographic from which their Care Workers are drawn this is an extremely common event. In 2023 out of their workforce of 80 they had 6 who went on pregnancy leave. Some of these had to stop work early due to medical complications and the respondents had absolutely no difficulty with this. Some, from earlier years who have been on maternity leave have now returned to work.[47]Whilst the claimant advised that she was only around 12 weeks pregnant and at that stage she had not provided the respondents with a MAT B1 form. Mr Ebuka, as per his usual practice carried out an informal risk assessment. He decided that it was inappropriate for the claimant to remain on the same round with the service users she was using. This was a 2 man round and some of the service users required the use of a hoist. Mr Ebuka felt this would be inappropriate given the claimant’s condition. He contacted the claimant over the next few days and she then changed to a new run.[48]Unfortunately the claimant became medically unwell and consulted with her GP on or about 4th August. The claimant worked on 1st and 2nd August. She was due to work on 3rd August but contacted Mr Ebuka to advise that she was unwell. She did not work on 3rd August. On 4th August the claimant sent the medical certificate to Mr Ebuka. The text 49. accompanying this stated: “Hi I hope you are doing well. This is my medical certificate. My doctor said I am not well for working yet I have need of rest for 2 weeks and take proper medication today again my emergency scan so please give me off from work according to this certificate because my mental health not well now a days I face depression and OCD and take 200 milligrams Sertraline antidepressant. I hope you understand my condition and cooperate with me. Thank you.”[50]The Fit Note attached to this text was 1 of 2 Fit Notes which were issued to the claimant bearing the date 2nd August. This text stated that the claimant was not fit for work until 15th August 2023. It stated that the claimant had been examined on 2nd August 23 and was suffering from “abdo pain”. On receipt of this Sick Note Mr Ebuka removed the claimant from the rota for the period from 3rd to 17th August. This was noted in the copy rota which was provided (R14) as “requested time off” [3-17th August 2023]. The claimant did not work during this period and did not receive any SSP or other payments from the respondent for this period.[51]At some point during her sickness absence the claimant contacted her GP again. Her GP provided her with another Fit Note which, although dated 2 August like the earlier fit note, was in different terms. This Fit Note was lodged at (C23). It stated that the claimant suffered from “abdo pain”. It stated that ‘the claimant may be fit for work taking account of the following advice”. The box below it stated “Amended Duties”. In the box it stated “and pregnant. Please could she not have heavy double calls.”. The start date is said to be 2nd August. The end date of 15th August has been entered in handwriting. The Tribunal’s view was that on the balance of probabilities the Fit Note had nothing put in this box when it left the doctor but that the claimant’s husband had written 15th August 2023 in his own handwriting at some point subsequent to this and prior to the document being submitted to the respondent. This separate Fit Note was not sent to Mr Ebuka but was sent to another member of the respondents’ management team called Collins. The text sent with this contradicted the text the claimant had sent earlier to Mr Ebuka. It stated: “Hi this is letter for double call because of condition I’m not well heavy work and double call after double call. My feeling not well 3 times I was sick on the duty time in the day 4 times I put and took 1 person. How not good in this condition. Bruce not standing without help and too much difficult carry and put so kindly I have request in this period of pregnancy give me single or easy call not able for personal care. I know you give me sponsorship but my life or my baby life is first. I hope you understand my condition because my mental health not well after delivery I will everything like before. I hope you understand. Thank you.”.[52]The position at this stage was that the claimant had already been taken off double call by Mr Ebuka. Mr Ebuka had then received the claimant’s other Fit Note which stated that she was unfit for work and had removed her from the rota for the period of the earlier Sick Note. No action appears to have been taken by the respondents specifically in response to this second Fit Note albeit it raised a number of questions.[53]During this period there were various discussions between the claimant and Mr Ebuka. Mr Ebuka began to feel that the claimant was giving him false information. She would say something and then contradict herself immediately afterwards.[54]Following the expiry of the Fit Note the claimant was rostered again to work on Friday 18th August, Saturday 19th August and Wednesday 23rd August. As per Mr Ebuka’s informal risk assessment the claimant remained on the round where she was not doing any double visits. Mr Ebuka’s understanding was that it would avoid the claimant having to do any heavy lifting and would take adequate account of her pregnancy. The claimant had difficulty in completing her shifts on all of those days. It would appear that she did 1 visit on 18th August and did not complete the visit she was supposed to do later in that day or the visits due on 19th August. The claimant had been sick during the visit she was supposed to do. On 21st August the claimant was due to come into the office but did not do so. 55. Mr Ebuka contacted her at 10:03 (text messages at C15]. “Good morning Zanib what time are you coming to the office today?” She responded saying “Morning I was called hospital now. I am waiting of call GP called me and give me letter I am fit for work so I just bring letter then office. David I am happy in EH16 so please now I will work in EH16 until the delivery of my baby thank you”. She then contacted him later saying “Until what time you are in the office today? Sorry I’m still waiting on GP’s call for letter”. The claimant’s reference to working in EH16 was a reference to returning to her previous route where she was required to do double calls. Mr Ebuka’s position was that this would not be appropriate because of the claimant’s pregnancy. He was waiting for the claimant to come in so that he could discuss this with her.[56]The respondent had previously asked the claimant to attend a foot care video training session at the office. The claimant had not attended this session at the original time fixed. On 21st August the respondents wrote again to the claimant asking her to attend at the office for the purpose of undergoing the video training either on 22nd or 23rd August. The claimant had agreed to go on 22nd August but in the event did not turn up. On 23rd August the claimant was due to work and Mr Ebuka was monitoring 57. the claimant’s arrival time because she had left early from her previous shift. He noted that the claimant had not turned up to a visit and texted her at 15:58 (C19). He said “Can you finish your shift today because there’s no one to cover the shift and you gave us a note that you are fit to work”. The claimant responded after that stating “Don’t worry today I finish I know don’t worry”. (C19). The claimant did not in fact finish her shift. Attendance records for that day are also found at R18.[58]There were discussions between the claimant and Mr Ebuka following the difficulties with the shift on 23 August. Mr Ebuka’s position was that he simply wanted the claimant to advise him in advance whether she was going to be able to do a shift or not. If she was not able to do a shift then there was absolutely no problem so far as the respondent was concerned. They had adequate cover and would simply allocate someone else. What they found difficult to deal with was the claimant being allocated a shift and then not turning up.[59]The next the respondent heard from the claimant was when she forwarded them a new Fit Note dated 25th August. This was sent to Mr Ebuka at 18:29 on 25th August. The copy of the Fit Note which was produced by the claimant is not completely legible however the Tribunal accepted the claimant was signed off for 1 month. There is a partial text lodged along with this which says “Hi David hope you are doing well today was my appointment with mental health nurse then GP. GP gave me letter for 1 month rest ….” The claimant’s Fit Note dated 25th August was due to run out on or about 60. 26th September. Prior to that however it would appear the claimant went back to her GP and obtained another Fit Note. This was dated 13th September 2023. It says that the claimant is diagnosed with a “stress related problem”. It says the claimant may be fit for work taking into account the following advice. The relevant section then stated: “Can now work from 16th onwards. Please disregard previous note that said not fit until the 25th September.”. This note bore to cover the period from 13th to 16th September 2023.[61]The claimant did not send this Fit Note to the respondents straight away. It would appear the respondents did not in fact receive it until around 29th September. In the meantime, however, the claimant did contact Mr Ebuka and say that she wanted to go back to work but only if she could work on her previous route which involved double manned calls. Mr Ebuka responded to the claimant that he could not allow this since the claimant was pregnant and in his view, having assessed the risk, it was not advisable for her to do this. On 29th September the claimant sent the amended Sick Note (showing she 62. was fit to do light work to Mr. Ebuka. It stated “I hope you are doing well David I will send doctor letter now. I am fit for work double call and everything so please give me rota for next week. If you need more any letters or anything from midwife or social worker please telling me. I speak with midwife and my social worker Georgia. She said if you have need any help or anything we help you. David I want to start work because you know I am hard worker and my all clients always happy with my work so please if you have need more any letter or any note I will provide you. Thank you.”[63]Mr Ebuka did not in fact put the claimant on the rota after this. He believed that there was an impasse because the claimant wanted to return to working double shifts and he could not allow this because of her pregnancy. He felt that the claimant was not telling the truth when she said that she was fit for work. Over this period Mr Ebuka spoke to the claimant by telephone on several occasions and also spoke to her husband. In at least 1 of these calls he told the claimant that the important thing for her was to look after her baby and stay fit and healthy and then return to work when she was fit or after the baby was born. During the period of the claimant’s absence from 25th August onwards the 64. claimant did not receive any SSP. She was paid on 16th September for the hours which she had worked (or been rostered to work) over the period from 16th to 23rd August. She did not receive any further payments from the respondent after this.[65]During this period the claimant raised with Mr Ebuka her desire to get back on the rota several times. Mr Ebuka did not do this since it was his view that the claimant was not telling him the truth when she said that she was fit for work. She raised the issue of sick pay and he told her to contact the Service Manager. The claimant did contact the Service Manager. There was a text exchange between the claimant and Mr Ebuka on 11th October 2023. The claimant said “Good morning hope you are well. As you know about my pregnancy and related sickness in the past few weeks I did provide you with my Sick Note but I haven’t got paid for them. Can I ask you why. Also there is no discrimination against a pregnant woman and any unfair treatment which I am getting by not uploading my rota and all stuff. You know this is my right. ACAS send me form said I fill in the form then they take legal action but I am not want take anything because I have 5 year contract with you and everybody is nice and cooperative especially David so I not want anything which create problem so please reply me why not paid my sick pay and why not upload my rota yet. I am still waiting from last weeks. Thank you”. Mr Ebuka’s response was “Hi Zanib I have informed you previously to discuss this with your Service Manager. Please do the needful and contact the Service Manager about any issues you might have. My role does not include anything to do with SSP and the like.” The clamant then contacted the Service Manager Ms Okoro also on 11th October 2023. The email was lodged (C25). She stated: “Hi Ma’am hope you are well. As you know about my pregnancy and related sickness in the past few weeks I did provide you with my Sick Note but I haven’t got paid for them. Can I ask you why. Also there is no discrimination against a pregnant woman and any unfair treatment which I am getting by not uploading my rota and all stuff you know this is my right. ACAS send me form and said I fill the form then they take legal action but I am not wanting to take anything. I have 5 year contract with you and everybody is nice and cooperative especially David so I not want anything which create problem so please reply me why not paid my sick pay and why not upload my rota yet. I’m still waiting from last 3 weeks. Thank you.”.[66]It would appear the claimant also sent a similar message by email on 12th October (C26).[67]The respondents did not make any substantive response to the claimant at this stage. Mr Ebuka’s position was that he did not feel he could put the claimant on a route involving double manned calls. His view was the claimant was not fit to do this work and that she was simply not telling him the truth when she said she was. He believed she was not willing to do the other route he had identified as being safe for her. His view was that the claimant was somehow trying to drag matters out by saying she was fit when she patently wasn’t. He believed that the claimant would eventually go off on maternity leave and would not return to work until after the baby was born. Ms Okoro’s position was that she understood that the claimant had not complied with the claimant’s sickness absence reporting procedures in some way. These procedures were not lodged. Her position was that the claimant should advise the respondent of the absence and then not produce a medical certificate until 3 days later. In any event it appears there was little to no discussion between Mr Ebuka and Ms Okoro at this time. Mr Ebuka was on leave for a period in October. On 27th October having heard nothing substantive from the respondent and 68. being in a position where she was not receiving any pay or SSP the claimant contacted ACAS. It is understood that ACAS contacted the respondents a few days after this. The respondents then contacted the claimant and invited her to attend a meeting in the office on 31st October. Ms Okoro conducted the meeting. Collins was also present. The claimant was not accompanied.[69]The meeting was a productive one. The claimant explained her position and that she was keen to work. The claimant handed over to the respondents her MAT B1 form. The respondent then carried out a written risk assessment which was lodged. This confirmed that the claimant was fit to work. The respondent carried out refresher training in terms of the sickness and absence procedure. The claimant signed a document confirming that she had received this training and that she would abide by the sickness and absence procedure going forward (R6). The document is entitled “Summary: Sickness/Absence Procedure” and it is probably as well to set this out in full. It states: Before “(1) Phone the house where you were due to be on shift first and as soon as you know you will not make it to work so that cover can be arranged. (2) Find out from them if the Senior Support Worker or Service Leader is on shift (rota) so that you can complete step 3 without calling someone who is off duty. (3) Phone either the Senior Support Worker or Service Leader to advise of your absence. Do not text or use social media; if for some reason you can’t call e.g. hospitalisation then it is acceptable for someone to call on your behalf. During Call daily to update as to your likely return and confirm this as soon as you know. After(1) Call/speak directly to the Senior Support Worker or Service Leader to confirm your return and so that they can have a return to work discussion with you.(2) Complete a self certificate form at the earliest opportunity and submit to Senior Support Worker or Service Leader.(3) Sign the return to work paperwork as soon as possible. A full copy of the Policy can be found on CLICK. If access to CLICK is difficult then ask Senior Support Worker or Service Leader for a copy. Please note that none of these steps are optional – all must be completed for reasons of health and safety as well so that we can ensure the best level of service possible to the people we support.”[70]At the end of the meeting the arrangement was that the claimant would be put on the rota and would be returning to work from 1st November onwards. The respondents’ position was that they thought the claimant now understood how she required to go about matters if it turned out she was unwell. Ms Okoro’s understanding from Mr Ebuka was that the problem in the past had been that the claimant was simply not turning up to allocated visits and this caused the respondent enormous problems. Ms Okoro felt that it had been a very positive meeting and given that she had initially hired the claimant because she thought she was a good employee she was happy that it now appeared that things would be back on an even keel until the claimant went off on her maternity leave.[71]The claimant left the office and returned shortly afterwards. She advised the claimant that she had not mentioned earlier that she had in fact arranged to go to Pakistan. She advised that she had booked tickets to travel to Pakistan on Sunday 5th November. She said that she intended to visit her child in Pakistan who was apparently ill.[72]This news caused the respondent some consternation. They felt that the claimant had seriously misled them. Ms Okoro felt that she had spent a considerable amount of time on 31st October trying to deal with the claimant’s outstanding issues. She thought they had reached a resolution and the claimant would be returning to work on 1 November. The fact that the claimant had agreed all this whilst all the time knowing well that she had already booked tickets to go to Pakistan came as a blow. Ms Okoro did not express any of her feelings to the claimant however but simply told the claimant to go back home and then to email and say what day she actually wanted to start.[73]On her way home the claimant became unwell on the bus. An ambulance had to be called to her.[74]Following the meeting Ms Okoro decided that the appropriate course of action was to dismiss the claimant. The view of the Tribunal was that she did so because she had no confidence in the claimant going forward. She was aware that the claimant had been extremely unreliable. Although she claimed that she understood how to do things properly she quite clearly did not. She appeared unable to follow procedures and processes. She had no confidence in the claimant’s integrity in that the claimant had spent the whole day telling the respondent that she was fit to work and would return early November and all the time knew that in fact she had already booked tickets to go to Pakistan and would not be there. She decided to dismiss the claimant.[75]The following day the respondent emailed the claimant confirming her dismissal. The email was lodged. It stated: “Termination of Employment Dear Raheela Zanib We regret to inform you that after careful consideration we have decided to terminate your contract with Almond Blossom Care to be effective on the 2nd November 2023. Your employment has been terminated due to the following reasons Repeated failure to abide by the Company’s policies and procedures Failed to pass the probationary stage. Given the severity of these violations and our efforts to work with you to rectify the situation we have determined that the termination of your employment is the only viable course of action. …”[76]Following receipt of this email the claimant contacted the respondent several times. Her emails were directed to Collins. She provided him with a copy of her ticket. The Tribunal’s view was that the ticket had been bought and paid for. Subsequently the claimant decided not to go to Pakistan. The travel agent initially refused to reimburse the fare and stated that they would only do so if the claimant provided medical evidence to say that she had in fact been unfit to travel. During the course of her discussions with the respondent the claimant indicated that she would not go to Pakistan and would stay and work if required. She made the point that her job and her visa were more important to her than travelling to Pakistan. The claimant’s baby was born on 29th January 2024. 77. Matters Arising From The Evidence[78]The Tribunal found this an extremely difficult case due to the fact that neither party appeared to have given any thought as to how to present the factual material supporting their case. As noted above the documentary evidence was not properly collated at the start of the Hearing and documents continued to be lodged up until the last day of evidence. Many documents were lodged several times and there was very little attempt by the parties to put their evidence in any kind of order. The pleadings on both sides were fairly unspecific and it took the Tribunal some time to establish exactly what each party’s case was. Matters were not helped by the fact that we found it difficult to pin down the witnesses as regards dates.[79]The claimant in particular was an extremely inaccurate historian. She gave her evidence via an interpreter although on occasions she would interrupt and seek to answer a question before the interpreter had finished. It was clear that her knowledge of English is not good. We feel this undoubtedly contributed to the apparent breakdown in communications which occurred between the parties at various times during her employment. Quite apart from this however we felt that on a number of occasions the claimant gave evidence which was simply untrue and incorrect. Indeed on a number of occasions the claimant gave evidence which directly contradicted earlier evidence she had given herself. We felt it was not possible to rely on the claimant’s evidence alone unless backed up by contemporary documentation. The claimant’s tendency to contradict herself was also noted by her GP in her medical notes. At the end of the day we have based our Findings in Fact partly on the evidence of the parties and partly on the evidence of the contemporary documents.[80]The claimant’s position was that she had not been properly trained. She eventually accepted that she had received an induction and had signed off various training modules. It appeared to the Tribunal that whilst these had been signed off by her there had been absolutely no internalisation of what was contained in her training. There was a dispute between the parties as to the precise circumstances under which the claimant had come to be sponsored by the respondent. The claimant’s position was that the respondents had been impressed by her work and had therefore sponsored her at an early stage. The respondent’s position was that they offered the claimant sponsorship because she had stated that she was absolutely desperate to receive a visa and this would eventually help her get her daughter back from Pakistan to live with her. The claimant’s evidence was extremely vague as to when she had advised the respondent of her pregnancy and how pregnant she was at that time. Given the date the claimant delivered her child and given the fact that at 1st November she repeated on several occasions that she was 25 weeks pregnant it was our view that the claimant was around 11 weeks pregnant when she advised the respondent of her pregnancy and that this happened on or about 29th July. There was no evidence it had happened earlier than this. The claimant in her evidence in chief said that she had sent the MAT B1 form to the respondent some time by email in August or September 2023. The MAT B1 form which was lodged is dated 3rd October and we therefore considered that her evidence was simply wrong in this respect. The respondent’s position was that she had given them the MAT B1 form when she called to attend the meeting on 31st October. With regard to the medical sick notes which were provided the claimant’s evidence in chief was frankly incomprehensible. During the first period she gave evidence it was her position that she had received 2 Fit Notes, 1 on around the 2nd of August and 1 a few days later. It was her position that the doctor had incorrectly put the wrong date on the second Fit Note so that this covered the same dates as the original one. At that time we were in some difficulty as we did not have good copies of either of these Fit Notes. Eventually when the Hearing recommenced in February the parties had lodged good copies of these Fit Notes. The claimant’s position then was that she had been anxious to get back to work and had therefore asked the doctor for a further Fit Note. She said that she had spoken to the doctor on the phone and that her husband had collected the Fit Note. Her original position was that the doctor had forgotten to fill out the end date of 15th August on this second Fit Note and that the doctor had then filled it in in handwriting. Subsequently during her cross examination she advised that her husband had filled in this date. The claimant in her evidence advised that on numerous occasions Mr Ebuka had threatened her with losing her visa if she did not go back to work. She was unable to be specific about this and having originally said that there were various Whatsapp and other messages confirming this she did not in the event produce any. Having heard the evidence from Mr Ebuka we felt that the claimant’s evidence was unlikely to be true in this respect. The claimant’s evidence was that she was expected to lift service users and she found this difficult first of all with a broken arm and then with her pregnancy. The Tribunal preferred the evidence of Mr Ebuka that the claimant had been given manual handling training at her induction and subsequently on 22nd May and that the respondents do not permit their Carers to lift service users. Service users must only be lifted by a hoist. The claimant lodged documentation in relation to a manual handling device which she says she was supposed to use. We were satisfied from the evidence of Mr Ebuka that this device is used so as to ensure that the service user lifts themselves and that at no time does a Carer require to lift a service user. With regard to the second medical certificate in September once again it would appear that the claimant obtained a medical certificate on 25th August. This followed an incident where she had been sick over a service user. On the balance of probabilities we thought this occurred on 18th or 19th August She had then left the service user early and not returned. At no time did the claimant work after 23rd August. She had subsequently obtained another fit note before the earlier one ran out which said that she was fit to work restricted duties but she did not send this to the respondent until 29 September by which time it had run out.[81]The claimant’s position with regard to her booked travel to Pakistan was that this had been booked and that she would have been prepared to cancel it. Her husband gave evidence to the effect that the travel had not been booked but that the travel agent had simply produced an indicative Schedule. This was directly contradicted by the written evidence which the claimant had already lodged showing that following her dismissal she had contacted the travel agent to cancel the booking and they had said they would only cancel it and give her a refund if she produced medical evidence to show that she was unfit to travel. The claimant’s husband gave evidence which at times did not coincide in any respect with the evidence given by the claimant. He confirmed that on various occasions he had accompanied the claimant on visits. He had also been in touch with the family of RA following the incident in order to obtain the text sent to the respondents in which they confirmed they did not wish to get the claimant into trouble. We found the claimant’s husband to be an unsatisfactory witness.[82]During the last day of the Hearing the claimant lodged in evidence a document which was a photograph which she had taken of part of the patient notes for patient RA. It was unclear why she wanted to lodge this but it appeared to relate to her contention that one of the things she was supposed to do was telephone the District Nurse if there were problems with this patient’s catheter. Since the respondent’s position was that this was part of her job we did not see it as a controversial point. In any event the photograph which she lodged also showed the QR code which was used by the respondent’s app to identify when a Carer had arrived at the service users house. The respondents explained that it was considered by them to be gross misconduct for a Carer to take a photograph of this bar code. They explained that there were instances of Carers taking a photograph of the bar code on 1 phone and then logging in to this bar code on the app using a second telephone. This meant that the Carer could potentially be recorded as present when they were not actually there. They advised that they had dismissed staff summarily for this offence and that all Carers had been advised that it was gross misconduct to do this. It was their position that had the claimant not been dismissed when she was then she would have been summarily dismissed at a later date once the respondents found out that she had taken this photograph. The Tribunal’s view was that the respondent’s position was fanciful. Whilst the claimant may have taken this photograph there was nothing to suggest that the claimant had used the photograph to log in inappropriately. Whilst the claimant may have been dismissed had the respondents found out. We considered it was unlikely that the respondents would have found out unless the claimant actually took active steps to log in inappropriately. They would not have known about this had the claimant not decided to lodge this document for her Tribunal.[83]Although Ms Okoro was less prone to contradicting herself than the claimant was we also found her evidence to be somewhat unsatisfactory in some respects. Her initial position was that the respondents had carried out a risk assessment immediately on receiving notification from the claimant that she was pregnant on or about 29th July. The Employment Judge asked her if the risk assessment was lodged and she said that she would arrange to have this lodged. When the document was lodged it was dated 31st October. She then explained that an informal risk assessment had been carried out at the end of July and the formal risk assessment carried out in October. It was also her position that here had been numerous occasions when the claimant had not turned up for visits that she was supposed to do. When questioned it transpired that, as expected, the respondents in fact have a fairly sophisticated data capture system which means that the timing of visits is recorded accurately. The respondents eventually lodged this documentation which showed that whilst in July the claimant had been unpunctual on numerous occasions and that as a general rule her visits had lasted around a third of the time they should have done there were no instances of the claimant failing to turn up for visits at all. It was only in August after the claimant was pregnant that this started to happen. Ms Okoro was also prone to make sweeping statements about the respondent’s policies and procedures which she could not subsequently back up when these procedures were lodged. It was her position that the claimant was in breach of the absence reporting procedure but when challenged on this all she could really point to was the fact that the claimant was producing her medical certificate after the first day of absence rather than wait 3 days for this. She gave evidence that she was the one who had made the decision to dismiss and said she did so because she had lost all trust in the claimant. She said that if the claimant had not come back in and said that she was going to Pakistan then the respondent’s position was that the claimant would have been rotaed to work shifts and there would have been no difficulty whatsoever with her employment continuing. She also was in a position to give detailed evidence about how the respondents deal with pregnant employees in general and we accepted her evidence that the respondents have dealt properly with a number of other employees who fell pregnant.[84]Mr Ebuka was probably the best of the 4 witnesses and we found his evidence to be generally credible and reliable. We were concerned that even during the Tribunal Hearing it was clear that he had very little time for the claimant and would on occasions treat her questions in a disrespectful and cavalier way. The Tribunal’s concern was that if he was doing this within the context of a Tribunal Hearing it is unlikely that he would have behaved in a more respectful way to the claimant during the course of her employment. We did however accept his evidence to the effect that he had absolutely no problem with the claimant being off on pregnancy related illness. This was particularly the case as he confirmed that it was the respondent’s standard practice only to pay employees for the actual hours they were rotaed to work even if this amounted to less than the 43 hours, even where the employee was said to be salaried as the claimant was. Essentially it was his position that whether the employee was on a zero hours contract or a salaried contract (required for sponsorship purposes) the respondents would treat them the same. He did say that the respondents were now aware of the difficulty and had changed their sponsorship contract as a result to more accurately reflect their practice. We accepted his evidence that he had become exasperated by the claimant saying that she was fit to work and wanted to do double shifts when his view was that she was clearly not fit to work and was certainly not fit to do double shifts. He said that he didn’t put her on the rota after 29th September because there was an apparent impasse. The claimant wanted to be allocated double shifts and he was not prepared to do this. He also did not want to allocate her shifts and then find that she did not turn up. It was his clear view that the claimant ought to be at home.[85]At the end of the day the Tribunal has constructed our Findings in Fact by piecing together what is most likely to have happened from the documentation and those parts of the evidence where all parties were in general agreement supplemented by our impression of the evidence of the respondents witnesses as to their motivation at certain points. One point that should be made regarding the documentary evidence is that the way this was provided means that the document numbers which I have set out in the text are the document numbers for the copy documents that I had as the Tribunal Judge. It is entirely possible that other bundles were numbered differently and in fact this became apparent during the course of the Hearing. It is also as well to report that on 2 occasions I arranged for the Tribunal staff to make a copy of the documents for the witness table. The first set of documents which was provided went missing which meant that a second set had to be provided. All parties seemed to be entirely oblivious to the difficulties which they were causing to the Tribunal by their lackadaisical attitude towards documents and complying with Tribunal Orders. Discussion and Decision[86]In this case the Tribunal considered there were 2 separate heads of claim. The first claim was a claim of pregnancy discrimination. This was clearly discussed by the Employment Judge at the second Preliminary Hearing in May 2024 as comprising a claim of discrimination on the grounds of pregnancy where the sole detriment alleged was the dismissal itself. The legal basis of the claim was set out in the Employment Judge’s Note. Whilst it could be argued that as the evidence came out there were hints at other detriments which may have been attributed to the claimant’s pregnancy the Tribunal felt that we would be going out on a frolic of our own if we were to investigate anything other than the issue of whether or not the claimant’s dismissal was discriminatory. This was the sole claim which was set out in the Note and which the claimant had agreed at the time as comprising her sole claim.[87]The second claim was in respect of financial sums which the claimant considered to be due to her. At the second Preliminary Hearing in May the claimant had been ordered to provide further specification of these sums. The claimant sent a letter to the Tribunal dated 27th May 2024. She stated “I claim for money £10,000. I was in contract with Almond Blossom Care for 5 years. I was give doctor’s letter in August and then I was give doctor’s letter unfit for work in middle of September and late September and October calls or messages again and again. Mr David Line Manager said your job and visa is secure. Because you are pregnant we give work. Please wait. I was wait September or October. Middle of October I was contact with my social worker then her give me contact number of ACAS when first conciliator contact with Service Manager her terminated me. Her terminated me when I got any other day job with big tummy. Her see my tummy. I have remembered other Manager who was in the meeting. He said not far your delivery. My meeting with her 1st of November and 29th of January was born my daughter my daughter. Not give me pay in September not sick pay. I give doctor letter but not give me any response when I asked Line Manager ? as Service Manager when I called message email her not to give me a reply according to ? I start job when my daughter 6 months old following my daughter’s date of birth 29th July complete 6 months ? September to July according 40 hours half pay is almost £10,000 because I face too much painful time in pregnancy and after delivery. Thank you.”.[88]Whilst the claimant completely failed to comply with the terms of the Order in providing any kind of calculation the Tribunal took from this that the claimant was claiming in respect of her sick pay and other payments for the period during which she had been at work but unable to work over the period of her employment up to the date of her dismissal. In her ET1 the claimant had ticked the box for holiday pay and other payments. We consider that she was therefore claiming her holiday pay also. With regard to the other payments we considered these to be SSP for the period during which she was signed off by the doctor and payment of salary for those periods when she was not signed off by the doctor but was able and willing to work but where the respondents were not providing her with work. We appreciate that some of these payments may technically be regarded as arrears of wages rather than “other payments”. However given the terms of the overriding objective and given that the claimant was unrepresented we consider that the terms of her letter put the respondents on adequate notice as to what it was that she was claiming. We shall deal with each of the claims separately below. Discussion and Decision[89]It is appropriate to deal with the payments head of claim first. The Tribunal was in no doubt that the claimant was entitled to SSP for the periods where she had been off sick. These were the dates where the claimant had provided a Fit Note showing she was unfit for work and did not work. In July the claimant had provided a Fit Note for the period 4th-12th July but in fact she worked on 4th, 5th and 6th July. She was therefore entitled to be paid SSP for the period 7th-12th July (6 days). In August she was absent from work for the period from 2nd-15th August. This90. was covered by a Fit Note saying she was unfit to work. The latter part was also covered by a Fit Note saying that she was fit to do light duties. The Tribunal’s view was that the truth of the matter was that she was absent from work during the whole of this period as she was unfit to work and is therefore entitled to SSP for the period 2nd-15th August. The claimant was then absent for a further period from 25th August to91. 25th September (31 days) and is due SSP for this period.[92]We note that the respondent’s reason for withholding SSP is that they said the claimant did not comply with their absence reporting procedure. The Tribunal were not satisfied that this was the case. The actual procedure was not lodged. The only issue which Ms Okoro was able to raise was that the claimant had lodged her medical certificate on day 1 rather than day 4. In our view this would not entitle the respondent to withhold SSP. If there was any breach of the absence reporting or absence management process then the appropriate remedy for an employer is to institute disciplinary proceedings. It is not entitled to withhold SSP. The claimant is not entitled to SSP for the first 3 days of these absences. She is however entitled to SSP at the rate of £118.75 per week thereafter. For the period in July the claimant is entitled to 2 days SSP at £23.75 per day (£118.75 ÷ 5). This amounts to £47.50. For the period in August she was entitled to £118.75 (5 days sick pay, plus 3 waiting days, plus 2 non working days). For the period in September she was entitled to 4 weeks SSP amounting to £475.[93]With regard to non payment of wages it is our view that the Contract of Employment clearly states that she is entitled to a salary and that the respondents are obliged to offer her at least 43 hours per week. It would appear that in the period up to the end of August taking into account the claimant’s sickness absence she was paid at least at the rate of her salary. From then onwards however it would appear she was not paid properly. She was entitled to be paid £24,372 per annum which equates to £2,031 gross per month. During the month of September she was available for work 6 days and was not paid or in receipt of ssp for these days. She is entitled to be paid her salary of £406.20 for those days since the respondents were under an obligation in terms of the Contract to offer her work and they did not. For the month of October the claimant is entitled to her full salary of £2,031. Adding up all of these sums (the SSP and the salary due) gives a total of £3,078.45. The respondents have withheld wages from the claimant in this amount and the claimant is entitled to payment of this sum.[94]With regard to holiday pay it appeared to the Tribunal that the claimant had not received any paid annual leave during the whole term of her employment. The claimant was employed between 5th April 2023 and 2nd November 2023. She was entitled to 5.6 weeks pay paid annual leave and took none. Her annual salary was £24,372. According to the government calculator she is entitled to 3.25 weeks paid leave during this period. She took no days paid leave. She is therefore entitled to £1,523.25.[95]With regard to the claim that the claimant’s dismissal was discriminatory on grounds relating to her pregnancy/maternity there are, as pointed out by the Employment Judge at the Preliminary Hearing 2 statutory provisions which require to be taken into account. The first of these is section 99 of the Employment Rights Act 1996 which states: “(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if –(a) the reason or the principal reason for the dismissal is of a prescribed kind or(b) the dismissal takes place in prescribed circumstances. (2) In this section prescribed means prescribed by Regulations made by the Secretary of State. (3) A reason or set of circumstances prescribed under this section must relate to (a) pregnancy, child birth or maternity …..”[96]The Regulations made by the Secretary of State which relate to this provision are contained in The Maternity and Parental Leave Regulations 1999. Regulation 20 sets out the circumstances in which a person may be regarded as automatically unfairly dismissed. It states: “An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if – (a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3) ….. (3) The kind of reason referred to in paragraphs 1 and 2 are reasons connected with – (a) the pregnancy of the employee .…”.[97]It is clear therefore that taking into account both the provisions of section 99 and the Regulations made thereunder the claimant’s dismissal would be automatically unfair if the sole or principal reason for the dismissal was one connected with her pregnancy.[98]The position is also covered by section 18 of the Equality Act which states: “(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity. (2) A person(a) (A) discriminates against a woman if in the protected period in relation to a pregnancy of hers A treats her unfavourably – (a) because of the pregnancy or(b) because of illness suffered by her as a result of it. …. (6) The protected period in relation to a woman’s pregnancy begins when the pregnancy begins and ends – (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy.”[99]The Tribunal accepted that the claimant was within the protected period when she was dismissed.[100]In relation to the provisions under the Equality Act, (but not the provisions relating to automatic unfair dismissal under the Employment Rights Act) the burden of proof provisions contained at section 136 of the Equality Act apply. Section 136 states: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts on which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned the Court must hold that the contravention occurred. (3) But sub section (2) does not apply if A shows that A did not contravene that provision.”[101]The reverse burden of proof provisions in the Equality Act reflect similar provisions made in previous anti discrimination legislation. The rationale for these provisions is that in general terms employers are often unwilling to admit that they had a discriminatory motive for their actings. It would be difficult for a claimant in those circumstances to convince a Tribunal that discrimination had taken place. The effect of the burden of proof provisions is that the burden of proof in discrimination cases can be reversed in certain circumstances. There is effectively a 3 stage process. The Tribunal must first of all decide on what are the facts of the case. Having decided what these facts are the Tribunal must decide whether these are facts from which the Tribunal could decide in the absence of any other explanation that a contravention of the Equality Act has occurred. At that stage, and only if that stage is reached, then the burden of proof shifts to the employer to show that there is an entirely non discriminatory explanation for what has occurred. The employer must show that the decision they made was in no sense whatsoever connected to the protected characteristic but if they are able to do this then they succeed in their defence. If they are not able to do this then the claimant succeeds. There have been many occasions where the higher courts have given guidance to Tribunals as to how the burden of proof provision should be applied. These include Igen Limited v Wong [2005] IRLR 258 CA. Hewage v Grampian Health Board [2012] IRLR 870 SC and Efobi v Royal Mail Group [2021] IRLR 811 SC. In the Efobi case the Court found that the rationale for placing the burden on the employer at the second stage is that the relevant information about the reasons for treating the claimant less favourably than a comparator is in its nature in the employer’s hands. A claimant can seek to draw inferences from outward conduct but cannot give any direct evidence about the employer’s objective motivation.[102]The tribunal’s view was that we should first consider the claim in terms of the s18 claim since the reverse burden of proof applies to this claim. If the claimant did not succeed under s18 where the reverse burden of proof applied then it was unlikely she would succeed under s 99 of the ERA where these provisions did not apply.[103]In this case the Tribunal were in no doubt that looking at the facts they could certainly decide in the absence of any other explanation that the claimant’s dismissal was discriminatory. The background to the meeting on 31st October was that the claimant was pregnant and well within the protected period. There is no doubt her dismissal amounted to unfavourable treatment. The meeting was called because the claimant had instituted ACAS conciliation. She was in a situation where she was saying she wanted to work and the respondent in the form of Mr Ebuka were not allocating her any work on their rota. This was against the background where it would appear the respondent’s standard practice was to ignore the written terms of the Contract and treat their workers as if they were working on a zero hours contract even if, as in the case of the claimant, they were quite clearly not. So far as the Tribunal was concerned the issue clearly moved on to the final stage where the Tribunal had to decide whether the respondent had shown that their decision to dismiss was in no sense whatsoever due to the claimant’s pregnancy. As the matter was put in the Efobi case; to discharge the burden, it is necessary for the respondent to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex since “no discrimination whatsoever” is compatible with the test.[104]The Tribunal’s position on this final part of the test was that the respondents did indeed just demonstrate that their decision was not in any way connected with the claimant’s pregnancy. We accepted Ms Okoro’s evidence that when the meeting on 31st October had ended she felt it had gone well. She felt that the respondents had sorted out their issues with the claimant. The claimant would be following the appropriate policies and procedures going forward and would be returning to work on or about 1st November. The respondents had spent some time carrying out a pregnancy risk assessment and giving the claimant retraining in their attendance management policies. The claimant had also watched the foot treatment training video which she had missed in August. By the end of the meeting all was well. In our view this was very strong evidence that when she decided to dismiss Ms Okoro was not motivated in any way by the claimant’s pregnancy. The Tribunal accepted Ms Okoro’s evidence that she decided to dismiss after the claimant came back and then announced that she had already booked tickets to go to Pakistan on 5th November and would therefore not be available to work. Our view was that this had absolutely nothing to do with the claimant’s pregnancy. The decision to dismiss was due to the fact that the claimant appeared to have deliberately misled Ms Okoro up to that point. She had allowed matters to get to the stage where plans were being made for her return to work and then went back in and completely destroyed them. The view of the Tribunal therefore was that the claimant’s claim of pregnancy discrimination did not succeed. We were also of the view that it did not succeed under the Employment Relations Act since the reason for dismissal was not one connected with pregnancy.[105]The final decision of the Tribunal therefore is that the claimant’s claim for unlawful deduction of wages and SSP succeeds as does the claim for holiday pay. Her complaints of pregnancy discrimination and automatic unfair dismissal relating to pregnancy do not succeed and are dismissed.