Ms E Thomson v Incovo Ltd and others: 4102751/2024
JUDGMENT
[1]The complaints of detriment on the basis of pregnancy, childbirth or maternity under section 47C and automatic unfair dismissal under section 99 of the Employment Rights Act 1996, and the complaints of both pregnancy, childbirth and maternity discrimination under section 18 and direct sex discrimination under section 13 of the Equality Act 2010 are unsuccessful and are dismissed;[2]The complaint of unfair dismissal under section 94 of the Employment Rights Act 1996 is successful and the first respondent is ordered to pay the claimant:a. A basic award of £3,215.00 andb. A compensatory award of £2,012.52.REASONS
[1]This claim was heard over two days. It was pursued against three respondents. The first is the company which employed the claimant, now in compulsory liquidation. The claimant obtained the consent of Falkirk Sheriff Court for this claim to proceed. The second respondent was Managing Director of the first respondent and was also a statutory director, i.e. registered as such at Companies House. The third respondent was the first respondent’s company secretary. He was not an employee of the first respondent and provided similar services to other businesses. He was not a statutory director.[2]For the sake of brevity, in this judgment the respondents are designated as R1, R2 and R3 respectively.[3]Evidence was heard from the claimant, R2 and R3, with R2 giving evidence before R3. The hearing took place in person but R3 gave evidence remotely. R1 was not represented at the hearing in any way despite the liquidators being notified.[4]The parties had prepared a joint bundle of documents which was referred to throughout the hearing. Numbers appearing in square brackets correspond to pages of that bundle.[5]After evidence was heard each party attending provided oral submissions which were noted and considered in preparing this judgment, although not reproduced here. Legal issues A list of issues was prepared and reproduced below with some minor changes for clarity in square brackets. Automatic Unfair Dismissal (section 99 ERA 1996)[1]Was the reason, or principal reason, for the Claimant’s dismissal:a. The Claimant’s pregnancy;b. That the Claimant sought to take the benefits of ordinary and/or additional maternity leave? Unfair Dismissal (sections 94 and 98 ERA 1996)[2]What was the reason or principal reason for the Claimant’s dismissal? Was it a potentially fair reason?[3]Did the [First] Respondent carry out reasonable consultation with the Claimant about the redundancy?[4]Was the selection process reasonable (in terms of the pool and the criteria applied to the pool)?[5]Did the [First] Respondent act reasonably in looking for alternative employment for the Claimant?[6]Was dismissal within the range of reasonable responses open to the [First] Respondent? Detriment (section 47C ERA 1996)[7]Did the Respondents [or any of them] subject the Claimant to detriment by way of the following acts:a. Informing the Claimant on 20 October 2023 that she was going to be made redundant?b. The failure to address the Claimant’s grievance of 15 November 2023?c. The failure to follow a fair and proper redundancy process?[8]Was the reason for the treatment:a. The Claimant’s pregnancy?b. That the Claimant sought to take the benefits of ordinary and/or additional maternity leave? Discrimination (section 18 EqA 2010)[9]Did the Respondents [or any of them] treat the unfavourably because of her Claimant pregnancy or because of an illness suffered as a result of it? The Claimant relies on:a. The conduct set out in paragraph 7 above.b. The Claimant’s dismissal. Direct Sex Discrimination (section 13 EqA 2010)[10]Did the Respondents [or any of them] treat the Claimant less favourably than it treats or would have treated others? The Claimant relies on the conduct set out at paragraph 9 above.[11]Was the less-favourable treatment accorded to the Claimant because of the Claimant’s sex?[12]What are the characteristics of an appropriate hypothetical comparator?[13]Are there facts from which the tribunal could decide, in the absence of any other explanation, that [any] Respondent discriminated against the Claimant?[14]If so, has [that] Respondent shown that it did not discriminate against the Claimant?Remedy
[15]What financial compensation is appropriate in all the circumstances?[16]What award for injury to feelings should be made?[17]What interest should be added to the award? Findings of fact The tribunal made the following findings of fact based on the evidence before it and on the balance of probability. Not every issue raised in evidence is included as the tribunal’s function is to focus on the evidence relating to the above legal issues which it has to determine and not every dispute of fact between the parties.Findings of fact
[1]The claimant began her service as an employee of R1 in January 2018. She started as a Helpdesk Administrator but in the years following took on more responsibilities and became Helpdesk Manager. By 2023, the time period with which the claim is concerned, she fielded telephone enquiries from clients and the public, dealt with minor client jobs, assigned other tasks to engineers in the field, prepared monthly client invoices and dealt with incoming emails. She worked from home. R1 had around nine employees at this time.[2]There were no issues with the claimant’s performance or conduct and she was considered a valued employee. R1 had a flat management structure and she reported directly to its Managing Director, Christopher Thomas (R2). The claimant and Mr Thomas got on very well. The company secretary of R1 was James Matheson (R3). He was not an employee nor a director.[3]In September 2019 and again in June 2022 the respondent granted a loan to the claimant. Each was documented [50,54]. One was to allow her to buy a director’s car and the other to assist with a house move. She was to pay the sums back by monthly instalments. This was indicative of collegiality and lack of formality which existed within the business.[4]The claimant took a period of maternity leave between 23 March and 25 August 2023. The respondent decided to enhance her maternity pay so that she received full pay for thirteen weeks followed by half pay for the next thirteen weeks, although she did not need to utilise all of the latter. This was another indicator of how valued an employee the claimant was. She used accrued annual leave up until an agreed return date of 6 November 2023.[5]The focus of the business of R1 changed over time. When the claimant joined it specialised in selling, installing and servicing printers and photocopiers as well as telephones and related supplies.[6]Around 2020 R1 noted a shift in the market away from its products and services, and sought to address this by moving into the field of Information Technology (IT) services. It merged with another company in that sector named ETA Delta Limited. The director of that company, a Mr Myles, became a director, employee and shareholder of R1. Two IT engineers were also taken on as employees.[7]The merger appeared at first to be beneficial to R1 and it acquired and serviced many of the clients of ETA Delta.[8]R1 acquired a second IT services business named RGB Solutions Limited in or around 2022, although there was less direct integration of staff. It retained its premises in Glasgow.[9]On 19 October 2023 the claimant emailed R2, R3 and others to confirm that she was expecting another child which was due in May 2024 [65]. She would submit a MatB1 form at around the 20-week point of her pregnancy. 10.Unknown to the claimant at that time, R2 had sought advice from R1’s external HR advisors on 20 September 2023 [63/64] in relation to making the claimant’s position redundant. In an email he said that he had been covering the role during the claimant's maternity leave and that he spent very little time doing it. He went on to say that she ‘would return to a completely different company and not have the same responsibilities, if any because they’ve been adapted within the business’. He finished by saying it was a ‘hard decision…but the helpdesk manager role is redundant in my opinion.’ 11.R2 was referring by his comments to developments within the business both during and to a lesser extent before the claimant’s maternity leave period. A number of changes affected her role. Those included that, since R1 took on the IT engineers from ETA Delta, client enquiries tended to be made directly to them and the claimant was less expert at dealing with them herself. Another factor was that the process of sending monthly invoices to clients had become almost entirely automated, removing the need for them to be prepared and issued individually, something the claimant undertook. 12.Later on 20 September 2023 the HR advisor replied to R2 by setting out two options, namely either to commence a formal redundancy consultation process or to offer a settlement as part of a protected or off-the-record discussion which, if successful, would lead to agreed termination documented by way of a settlement agreement. The advisor said the latter may be easier for R2 as it involved less time and procedure. 13.R2 had not acted further on this advice by the time that the claimant sent her email on 19 October 2023. The reason why was that he was dealing with a number of other pressing matters in the business, such as recruiting and supporting a new Head of IT and then two IT field engineers to replace those who had come from ETA Delta and had resigned shortly before, setting up in competition and attempting to entice R1’s clients. R2 was spending time trying to support the remaining clients without being an IT expert himself. He had concluded that the claimant’s role was redundant but had not decided precisely when he would raise this with her. He was aware however that she was scheduled to return to work on 6 November 2023. The claimant’s email prompted him to take action. The next day - 20 October 2023 - he asked by text message when the claimant was free to speak and they had a conversation that evening. 14.On the call R2 explained that the business was struggling and there had been a ‘falling out’ with Mr Myles. This related to a dispute over his contribution to the activities of the business which R2 considered was lacking. The dispute culminated in something of a stand-off as Mr Myles would not transfer or sell his minority shareholding in R1. He resigned as a director on 3 July 2023 and also ceased to be an employee around this time. His two ex-employees, the IT engineers, had also left. They had taken clients with them and there was a significant drop in revenue. The claimant had been aware there were ‘some issues’ she said in evidence, but did not know the whole picture. 15.R2 went on to say that her role was redundant and that she would either need to accept a financial offer and sign a settlement agreement, or wait and join the list of R1’s creditors as R1 was going to be put into liquidation. The claimant was surprised to hear how drastic things had become. She was also saddened as she had enjoyed her time working with R1 and with R2 particularly. 16.The claimant described R2’s tone as initially friendly. The call was around an hour in length and other more personal matters were discussed besides the redundancy of the claimant’s role. She felt that R2 became more formal when discussing the amount R1 would offer her. She believed that the call had been triggered by her announcement that she was again pregnant. She wondered if the respondents were concerned about her being absent again for a period months so soon after her initial maternity leave period. The claimant felt that the financial offer did not fully recognise the time she had invested in her role, but said she would give it consideration. 17.The claimant emailed the respondents on 21 October 2021. She said she had had a meeting to take advice on her position, and believed that she was in a protected position by virtue of her pregnancy and that the respondent had not followed its own redundancy policy (although there was not one) or ACAS guidance as to consultation. She proposed a higher settlement figure and provided a calculation to show how it was arrived at. She said she hoped the respondents would agree it was a fairer figure and that she did not want to ‘drag this out’. 18.At this point R3 took over communicating with the claimant in relation to settlement discussions. He emailed her on 24 October 2023 to say that there may have been a misunderstanding around whether her role was redundant, and that it was not. This was a matter of interpretation as R2 had said definitively that it was, both to his HR advisor and the claimant herself. R3 did however explain to the claimant how her role had diminished in her absence in terms of reduction in customer income, and that it may be necessary to follow a formal redundancy process although no decisions had been taken. The settlement agreement option was an alternative to this and the claimant was not obliged to accept it. However, the business was keen to conclude the matter and R3 proposed a Teams meeting for the following day. The claimant agreed to attend. 19.At the meeting R3 adopted a similar position to his email the day before. He apologised for R2 saying that she would simply become a creditor if agreement could not be reached, realising that although this was a possible outcome, it had not been sensitively put. He referred to RGB defaulting on an agreement to pay a sum of money to R1 which could render it insolvent. The claimant reiterated that she thought the offer was low and she wished to conclude discussions quickly also. R3 undertook to take the claimant’s counter-offer to the board for consideration. 20.There followed an exchange of emails between the claimant and R3 in which no real progress was made [70-73]. The claimant sought updates and R3 replied essentially to report that no further decision had been taken. This continued up to 3 November 2023 – the Friday before the claimant’s intended return to work the following Monday. R3 emailed her to say that ‘However, as you know there is no work for you to carry out at the moment so you may remain at home. There is therefore no need to report to anyone on Monday. We will be in touch next week to update you.’ 21.There was no further communication until 15 November 2023 when another series of emails were exchanged [75-77]. This began with R3 asking the claimant to confirm whether she was accepting or declining R1’s last offer. This was frustrating to her as she believed she was waiting on the respondents considering her own counter-offer. R3 said that the respondents had decided not to accept that (although it appeared that this had not been confirmed to her, hence her frustration). R3 mentioned at this point that ‘We did consider your alternative offer and decided that with your enhanced maternity pay and the way we treated the situation regarding your loans we have been very fair and that we are not increasing our original offer.’ The claimant argued that this was suggestive of the respondents being motivated by her pregnancy in how they were treating her. This was not established on the evidence. It was more probably R3 trying to persuade the claimant that the respondents were being reasonable by referring to occasions in the past when R1 had been particularly generous towards her. The loan terms had no relationship whatsoever with her pregnancy, as both individuals agreed. 22.The claimant emailed further that day. She revisited the process to date and said that she was a pregnant employee who had suffered discriminatory and unfair treatment. She concluded by saying that she was raising a grievance and would be in touch once she had legal advice on how to take it forward. R3 issued a short response, asking her merely to confirm whether or not she was accepting R1’s figure. 23.There was no further communication until the claimant checked her bank account on 30 November 2023. She noticed that her monthly pay was some £1,100 short. She emailed R3 that morning to ask for a copy of her payslip and an explanation for the lower figure. 24.R3 replied to say that ‘As you are aware, due to restructuring your position at Incovo Ltd is no longer required. As this is the situation, you are being made redundant from today, 30th November 2023.’ Enclosed were the claimant’s final payslip and a document breaking down her final salary payment. After routine deductions from her gross monthly pay a redundancy payment of £3,215 was added but then the figure of £4,555 was subtracted to cover the balance of her loans outstanding. The claimant accepted that the figure was correct but argued that her statutory redundancy payment should not have been subject to deduction. 25.In this way the claimant’s employment ended on 30 November 2023 without notice or payment in lieu of notice being provided. 26.The respondent appointed a provisional liquidator on 24 January 2024 and entered into compulsory liquidation on 6 February 2024 by an interlocutor of Falkirk Sheriff Court on that date. Discussion and decision Claim of automatically unfair dismissal – section 99 ERA 27.The claimant alleged that her dismissal was automatically unfair because the sole or principal reason for it was:a. Her pregnancy; and/orb. That she sought to take the benefits of ordinary maternity leave and/or additional maternity leave. 28.This was a complaint against R1 only as the claimant’s employer. R2 and R3 both argued that the sole reason for the dismissal was redundancy. 29.The claimant established in evidence that she was pregnant at the time of her dismissal, that all respondents knew she was and that at some point in the future, had she remained in employment, she would have utilised at least ordinary maternity leave as she did for her first pregnancy between March and August 2023. 30.The respondents accepted that R1 dismissed the claimant. The onus fell upon R1 to prove that the sole or principal reason for doing so was not either or both of the reasons she asserted. The respondents satisfied the tribunal on the evidence provided that the sole, or at least the principal, reason for dismissal was redundancy. That evidence in summary was: a. The nature of the company’s activities had changed over approximately 18 months and especially whilst the claimant was on maternity leave and annual leave from March 2023; b. Her role involved significantly fewer tasks and took less time to perform, for example because there were fewer clients to deal with, their queries tended to be referred directly to IT engineers rather than being fielded by a help desk, and invoicing had become almost completely automated;c. Mr Thomas had direct awareness of this as he had tended to cover the claimant’s work in her absence;d. The company was in a volatile situation with clients and struggling to achieve necessary turnover levels;e. Mr Thomas concluded around September 2023 that the claimant’s role was, or could be made, redundant, prompting his email to HR seeking advice on how to advance with that; andf. The claimant was not replaced. 31.The only apparent connection between the above factors and the claimant being pregnant was that it was in covering her role during her first maternity leave period that Mr Thomas gained an appreciation of how little of the role remained. That did not mean that the reason for dismissal was sufficiently related to pregnancy or the utilisation of maternity rights however. Unfair dismissal – section 94 ERA 32.Whether the claimant was unfairly dismissed in a more general sense involves a two-stage test. 33.The first test is whether the dismissal was for a potentially fair reason set out in section 98(1) or (2) ERA. The onus is on the former employer to prove that it was. Based on the findings made above that requirement was met – redundancy is a potentially fair reason per section 98(2)(c). 34.The second test is whether R1 as the claimant’s employer acted reasonably in all of the circumstances in treating that reason as justifying dismissal, under section 98(2). This test is concerned with the process followed and related circumstances rather than the reason itself. The onus in this assessment is neutral. 35.There is very little by way of further statutory guidance on how a dismissal for redundancy will be considered reasonable. A body of case law has developed which has crystallised around some key principles such as: a. Notifying the affected employee at an early stage that their role could be at risk; b. Providing adequate information about the situation and the proposed way of dealing with it; c. Allowing the employee time to reflect, consider any questions they may have and propose any alternatives; d. Application of neutral and objective selection criteria where not all of a given type of employee may be dismissed; e. Some form of consultation involving (usually) one or more meetings when the relevant issues are discussed; f. Reasonable consideration by the employer of any questions or suggested alternatives proposed by the employee and provision of a response;g. If dismissal is to take place, provision of a confirmatory letter which should also clarify the sums being paid. 36.None of the step above is necessary in all cases and a dismissal which follows will not automatically be unfair if it is absent, but an explanation will normally be required. The absence of more than one step multiplies the risk of the dismissal being unfair. 37.By the admission of R2 and R3 no such process was followed. Advice was given by HR on 20 September 2023 broadly consistent with the above, but the respondent chose to prioritise the second option of direct financial resolution. There was nothing untoward in it doing so at that time. The issue arose later as it became clear that the claimant sought a higher settlement than R1 was prepared to offer, and the discussions stalled around 15 November 2023. Rather than revert to the first advised option, the claimant was simply told on 30 November 2023 – after she had prompted R2 by raising a query about her monthly pay – that she was being dismissed on that date. No confirmatory letter followed, although she was at least sent a form P45 and a breakdown of her final salary payment. 38.This process, or lack of it, could only allow for a fair dismissal in only exceptional cases. There were no exceptional circumstances in this case however. There was no reason why, having received essentially the correct advice as to the process to be followed, R1 rejected that and simply dismissed the claimant without warning after settlement discussions had stalled, denying her the opportunity to ask questions, make representations or appeal the decision. A reasonable process might only have taken some two or three weeks given how clear-cut the underlying position appeared to be. The company was not so financially challenged at that time that to go on paying the claimant for its duration would have been prohibitive. 39.The claimant’s dismissal therefore was unfair. The requirements of section 98(2) had been met but not 98(4). This complaint succeeded against R1 only, the only party against whom it could competently have been made. Detriment for the prohibited reason of pregnancy, childbirth or maternity – section 47C(1)(a) ERA 40.The detriments alleged were: a. Informing the claimant on 20 October 2023 that she was going to be made redundant; b. The failure to address her grievance of 15 November 2023; and c. The failure to follow a fair and proper redundancy process. 41.The alleged basis of the detriment was that the claimant was pregnant and/or she intended to take the benefits of ordinary and/or additional maternity leave. 42.This complaint was made against all three respondents. R2 and R3 resisted it on the basis that the detriments did not occur as alleged, and that in any event any detriment which did occur was not ‘done for [a] prescribed reason’ relied on by the claimant, as section 47C(1) requires. 43.Each alleged detriment was considered as follows: a. Did it happen as alleged, or at all? b. If so was what happened a detriment and was it the claimant’s employer who subjected her to it? c. Was it for a prescribed reason – either or both as relied on by her. 44.In terms of (c) above, it is a ‘reason why’ test rather than a ‘but for’ test which applies when assessing any possible connection between the protected characteristic relied on and the alleged detriment. Even if the detriment would not have arisen had the claimant not been pregnant, that alone will not be enough. Her pregnancy or anticipated intention to take maternity leave must have influenced the decisions taken in some material way. Informing the claimant of redundancy on 20 October 2023 45.Dealing with each alleged detriment in turn, it was not disputed that the claimant was told by R2 during their telephone call on 20 October 2023 that she was going to be made redundant, in the sense that he told her that her role was redundant, that it would be removed, and that she herself would be dismissed as a consequence unless she reached agreement on terms for her employment to end in return for compensation via a settlement agreement. This was the claimant’s recollection, R2 agreed, and R3 had to accept their accounts as he was not a party to the call. 46.The statement was clearly a detriment as the claimant, expecting to return to work some two weeks later, was now being told that her employment would end. She needed income and recognised that to find another job whilst pregnant would be challenging. The act was also by her employer. R2 was speaking on behalf of R1 and had no personal liability to her in relation to her employment status. 47.The more difficult question was whether R2 made the statement for the reason that the claimant was pregnant, or was expected to exercise her right to maternity leave in the near future, or both. This could be viewed two ways, each relied on by the claimant and R2 respectively. 48.The claimant’s interpretation was that R2 acted quickly in response to her notification of her pregnancy by arranging a call the next day which had the sole purpose of bringing her employment to an end. She suspected that the respondents did not wish to go through the process of losing her services for six months or more so soon after her first pregnancy, whilst still paying her. She emphasised that despite R2 seeking advice on making her role redundant a month before, no steps were taken until some 24 hours after she confirmed she was pregnant. That was more likely to be the real reason why R2 decided both that her role would be made redundant and that further she would be dismissed unless she agreed terms for her departure, she believed. 49.R2 and R3 both emphasised that the erosion of the claimant’s role had been noted and discussed as early as July 2023 and that there were valid reasons why R2 did not act sooner in relation to the advice he received regarding implementing redundancy. In essence, those reasons related to the other challenges R1 faced, which occupied the time and attention of R2 with more immediate priorities. Those included a dispute with Mr Miles over his contribution to the business and what was to happen to his shareholding, the departure of the company’s two IT technicians who set up a new business in competition, the loss of customers which followed, attempts to service remaining customers despite a lack of IT expertise and steps to recruit new IT technicians. Against that background the claimant’s email of 19 October 2023 did not change the steps R2 was going to take, but made it more of a priority for him to speak to her about them. In essence, the only effect the claimant’s announcement had was to prompt him to raise the matter earlier than he would have done. 50.Of those two positions, the tribunal preferred that of the respondents. The evidence of R2, supported by R3, was from direct knowledge whereas the claimant’s understanding of what happened was more speculative. She did not know why there had been a gap of a month between R2 receiving advice and notifying her of her redundancy. At the time of the call she did not know that R2 had formed the view that her role was redundant over a month before and had sought advice on how to take action. It was natural for her to assume the content of the call was triggered by the information she gave the day before. She did not have the benefit of full knowledge of all that was going on within the business at the time. 51.The tribunal also took into account that R2 had tried to adopt an informal tone to the call in light of the close working relationship both had enjoyed. Their conversation took in matters other than the proposed redundancy and possible severance terms. That had been maintained until the value of the settlement figure was disclosed, which the claimant found to be disappointingly low. 52.In effect therefore, R2’s statement represented him delivering a difficult message which he had – consciously or subconsciously – been putting off until the claimant got back in touch with him. Although this represented a detriment to the claimant, only the timing changed. The tribunal considered that had he not raised the matter then, it would have been done shortly before she returned to work on 6 November 2023. There was no longer a role for her to come back to. This was a natural point when the need to deal with that would have come to a head. Having the conversation on that particular date was not a detriment sufficiently linked with her pregnancy for it to be unlawful. It happened then because she had gotten back in touch, reminding him this was a matter he could no longer put off, and not because she was pregnant. Failing to address the grievance of 15 November 2023 53.This complaint was made against all respondents, although the email in question was sent only to R3. R2 confirmed in evidence however that he was aware of it. 54.It was not beyond dispute that the email was a grievance. The only reference to such a process was in the last sentence in which the claimant said that she was raising a grievance in relation to her treatment and would be in touch once she had legal advice on how to take it forward, as she believed the respondents had no intention of doing so. 55.The email was not treated as a formal grievance by any respondent and nobody contacted the claimant further to make progress with it, for example by asking her to attend a meeting to discuss her concerns. Similarly, the claimant did not follow up the email with any further communication as she had said she would. 56.The tribunal was not satisfied given the claimant’s choice of words, and how they were interpreted by R2 and R3, that she had raised a grievance in the commonly understood sense of wishing to follow a semi-formal internal process aimed at resolution of specific concerns. However, the claimant had raised issues in the email and the tribunal considered whether any respondent’s response, or lack of response to those could nevertheless amount to a detriment. 57.The issues raised in the email boiled down to the following: a. R3 had contradicted what R2 had said by saying her role was not necessarily redundant, but there was no work for her to do and he would provide further information on what was to happen; b. It was disappointing that R2 had referred to the enhanced maternity pay she had received earlier in the year as part of the negotiations over a severance figure, as that did not appear to be relevant, and it created the impression for her that the respondents regretted having provided it; c. The discussions over settlement appeared not to be proceeding towards an agreement; d. She was a pregnant employee who had protected rights, but was not being properly consulted with. The treatment of her was discriminatory and unfair. 58.R3 responded to the email. He said that all the respondents were asking her was whether she would accept the settlement figure they had offered. The discussion ended there. 59.To determine whether the respondents’ reaction to the claimant’s email was detrimental it is necessary to consider what she was asking and what she could reasonably have expected by way of a response. The email is not explicit in this regard. It reads as an expression of frustration with the respondent’s stance on a settlement figure and the length of time the negotiations had taken. The points she raises, for example in relation to consultation and her legal rights, appear to be in support of a higher settlement figure rather than direct requests that certain procedures now be followed or other actions taken. 60.Reviewing R2’s reply in light of this, the tribunal accepted that this qualified as a detriment because what she wished for was agreement to her higher settlement figure, or at least an increased offer. Instead R2 indicated that there was no movement. A question potentially arises as to whether this was a detriment in the claimant’s employment, as opposed to something outside of it, given that these were discussions about ending it rather than being associated with how the contract of employment would be performed. However, the tribunal considered the issue to be sufficiently closely bound to her employment status for that ultimately not to be an impediment. 61.This detriment is narrower than the one alleged by the claimant. It is only just a detriment at all. There was no obligation to offer a higher figure. The respondent was not saying it would deny her contractual or statutory rights. 62.In any event, what detriment there was did not arise because of her pregnancy or intention to take maternity leave. It arose simply because the respondent had evaluated how much of a premium it was prepared to pay as an alternative to operating a redundancy process, and would not go any higher. The fact that the claimant’s assertions in the email effectively fell on deaf ears did not change that. Failure to follow a fair and proper redundancy process 63.The third and final alleged detriment within this claim was that the respondents had consciously avoided applying a fair redundancy process. For reasons given above in relation to the section 94 ERA complaint, it was correct that the respondents did not follow a fair process, or indeed one at all in any meaningful sense. None of the traditionally accepted features of a fair and reasonable procedure were present. R2 candidly explained that he saw that was one of two options he was advised were available on 20 September 2023, and chose the alternative which was to agree departure terms, documented by a settlement agreement. 64.The question was therefore whether this occurred because the claimant was pregnant, was expected to take up her maternity leave rights in the future, or both. 65.It is important to consider the timeline of events in this context. R2 decided to prioritise the settlement option first as he believed that would be beneficial to all parties if agreement could be reached on a figure. The claimant clearly agreed with this in principle and engaged in the negotiations, advocating for a higher settlement amount as she was entitled to do. This continued up to 15 November 2023 when her discussions with R3 broke off. The next exchange they had was on 30 November 2023, prompted by her noticing that her monthly pay was less than normal. It could therefore be taken that the decision to cease negotiating with her and to dismiss her instead came between those dates. To the best of R2 and R3’s recollection, the decision was reached at a board meeting which was closer to the later date. This makes sense as R3 had left its offer open for acceptance by the claimant in his last email to her, and so it can be assumed that the respondent allowed her at least some time after that to come back and accept it, if she changed her mind. 66.As a consequence of the above, the tribunal did not find that the claimant was subjected to a detriment by a redundancy process not commencing immediately, i.e. on or very shortly after 20 October 2023. The question only arose between 15 and 30 November of that year at the point the respondent concluded she would not accept its settlement offer. By that time it was clear that her role itself was redundant and no other viable options had been identified to retain her in another capacity. 67.Neither of R2 or R3 could fully explain why a redundancy consultation process was not started around that time. The essence of their evidence was that no point could be seen in doing so. The outcome was inevitable. They actively or constructively decided to accept any consequences of not following a process. This decision was indeed unfair and there were consequences, as detailed above in discussion of the section 94 ERA complaint. 68.However, none of these events connected the detriment to the claimant with her prescribed reasons relied on under section 47C. The respondents simply viewed the situation as one involving a redundant employee who would not accept a settlement offer, whose dismissal was inescapable and in respect of which it wished to conclude the process as soon as possible. On the balance of probability she was not going to be retained long enough to utilise her maternity leave rights and the fact that she was pregnant in the meantime made no appreciable difference. The issue was with her role against the background of the changes going on within the business, and not her. Section 18 EqA – pregnancy or maternity discrimination 69.The claimant relied on the three matters alleged as detriments within her section 47C ERA complaint as acts of pregnancy and/or maternity discrimination. She added a fourth, namely her dismissal. Again the complaints were made against all of the respondents and resisted by R2 and R3. 70.The legal tests contained within section 47C ERA and section 18 EqA are similarly worded. The former is concerned with a detriment for a prescribed reason, of which pregnancy, childbirth and maternity are examples. The latter deals with unfavourable treatment ‘because of’ pregnancy or seeking to take maternity leave (among other things). Despite the differences in words there is little or no distinction to be drawn between the two tests. Both involve, in this claim, unfair treatment because of, or by reason of, the same protected characteristics. 71.The tribunal did accept that there are slight differences between both types of complaint in how the onus of proof operates. Under sections 47C and 48(2), if a detriment is established then the onus passes to the respondent to show it was not for the prohibited reason. Section 18 requires that the claimant establish both the unfavourable treatment and primary facts suggesting that there is a connection to her pregnancy or maternity related rights or intentions. Then the onus passes to the respondent to prove that there was in fact no connection whatsoever between the two. 72.Noting both the similarities between those two tests and the important differences, the tribunal reached the same conclusions in relation to the first three allegations of discrimination of this type and for the same reasons. 73.More specifically, where a detriment was established under section 47C this was also unfavourable treatment under section 18. 74.Considering the additional element under section 18, namely the requirement that the claimant establish primary facts from which a conclusion of discrimination could provisionally be drawn, the tribunal accepted that she had done so in relation to the first allegation, namely being told on 20 October 2023 by R2 that her role was being made redundant. Coming the day after she had disclosed she was pregnant was provisionally suggestive of a connection. However, the respondents’ explanation of that act within the bigger picture of the circumstances of the business discharged the onus which fell upon them. 75.By contrast, the claimant did not establish primary facts suggesting a connection between any detriment and her protected characteristic in relation to her email of 15 November 2023 or the respondent’s decision not to follow a redundancy process. In particular, the evidence of reduction of her role and financial challenges the company was facing were especially clear. Against that background the claimant could not provisionally demonstrate why her treatment was related to her pregnancy rather than those factors. Had she done so, the evidence provided by the respondents would have discharged the onus in any event. 76.The fourth allegation was concerned with the claimant’s dismissal. Clearly this was a form of unfavourable treatment, but was it because of a protected characteristic? 77.The answer to this question followed from the tribunal’s findings in relation to the earlier detriments. The claimant’s role was redundant. No alternative role or duties were identified for her to take up. Shortly before 30 November 2023 when it became clear that she would not accept R1’s financial offer the only option remaining was dismissal, whether after a process of consultation or without one. She had been at home since 6 November 2023, with no work to do but being paid. 78.The claimant did not provide primary facts to suggest that her dismissal was because of her pregnancy. The only substantial evidence was that it was an inevitable consequence of the redundancy of her role when financial settlement was no longer deemed a possibility. The respondent would have been able to discharge the onus of proof on this point had it been required to do so. Direct sex discrimination – section 13 EqA 79.This complaint was made against all respondents. 80.The four unfavourable acts relied upon under section 18 were also put forward as alternative allegations of direct sex discrimination. As such, the legal test to be applied was the same, using her gender rather than pregnancy status and associated rights as the protected characteristic in question. 81.This complaint was weaker than the section 18 claim. There was no evidence at all of the claimant being unfavourably treated because she was a woman. She agreed with R2 that both had enjoyed a close working relationship which was akin to friendship at times. 82.Although she did not specifically nominate a comparator, a hypothetical one was presumed, i.e. a male employee who was on annual leave after a lengthier absence (say because of injury, to care for a dependant or on compassionate grounds) whose role had been covered by a manager in the interim, resulting it being recognised that their role had diminished to the point of redundancy. The tribunal saw no basis for concluding that such a person would have been treated any differently if they had intimated that they might need to take a further lengthy leave of absence at some point in the future. The restrictions applying to the respondent would have been the same and in all probability so would the outcome if agreement on a settlement figure could not have been reached. 83.It is difficult to see how any provisional act of discrimination on the basis of sex would have survived the evidence which the respondents brought and which successfully discharged any onus upon them in the section 18 complaint. Remedy 84.As a consequence of the above findings, the complaint of unfair dismissal under section 94 ERA is successful. The remaining complaints are unsuccessful and will be dismissed. It was not therefore necessary to consider apportionment of liability between the respondents. 85.The claimant’s evidence of losses she sustained and her attempts to mitigate those losses was not challenged by any respondent, and it is accepted by the tribunal. Accordingly the following are awarded in her favour, and which R1 is therefore ordered to pay (noting that it is in compulsory liquidation): a. Basic award – the claimant is awarded the full amount of her statutory redundancy payment which was withheld at the point of dismissal, namely £3,215.00 which should be paid without deductions; b. Compensatory award – the claimant is awarded the amount claimed in her schedule of loss, but only for a period of four weeks on the basis that that her role was genuinely redundant and the respondent could have followed a fair redundancy process within that time, beginning on 1 December 2023. Had it done so she would have been fairly dismissed. Her net weekly pay was £488.48 per week and the weekly value of employer pension contributions was £14.65. The sum of those multiplied by four is £2,012.52. This figure is claimed on the basis of net income and so deductions should not be made from it. 86.In making these awards the tribunal considers that it was probable that the claimant would have received enhanced maternity pay similar to that received during her first pregnancy, as asserted.