Miss S Aris v Blossom Healthcare Ltd, T/a Curant Care: 6010127/2024
EMPLOYMENT TRIBUNALS
Case No 6010127/2024
Between
Miss S ArisClaimantBlossom Healthcare Ltd, trading as Curant CareRespondent
Before
Employment Judge RamsdenDate 6 January 2026
JUDGMENT
[1]The Claimant’s complaints of: a) Pregnancy discrimination, contrary to section 18 of the Equality Act 2010 (the 2010 Act); and b) Constructive automatic unfair dismissal for being dismissed for the reason, or the principal reason, if pregnancy pursuant to section 99 of the Employment Rights Act 1996, succeed.[2]The Claimant is awarded compensation in the total amount of £22,832.07, derived as follows: a) £2,340 by way of compensation for financial losses; b) £18,000 by way of compensation for injury to feelings; and c) £2,492.07 by way of interest on those amounts at the rate of 8% simple interest for 559 days from 26 June 2024 to the date of the hearing (5 January 2026).
REASONS
[3]These written reasons are provided at the request of the Respondent following oral reasons given on 5 January 2026. 1 of 19
Facts
[4]The Respondent is a home care company, which supplies carers to attend to clients in their homes.[5]The Claimant is a young woman, who has a health condition which, according to her unchallenged evidence, means it was unlikely that she would be able to get pregnant, and that any pregnancy would be deemed “high risk”.[6]The Claimant began working for the Respondent as a Care Worker on 29 May 2024. The Claimant initially reported to “A”, but at the time of the events concerned reported to “MR”.[7]On 18 June 2024, the Claimant informed MR that she was pregnant.[8]On 20 and 21 June 2024, the Claimant was absent from work due to pregnancyrelated nausea.[9]On 26 June 2024, when attending a patient in their home, the Claimant says she was pinched and hit in the stomach and hips by the patient – and this supported by a contemporaneous WhatsApp message from the Claimant to the Respondent’s “On Call” WhatsApp number. There was another care worker present on 26 June 2024, and the Respondent says that that care worker did not report the incident, but no evidence was given by the Respondent to that effect. In any event, the Claimant informed MR by WhatsApp message that she had been advised by her midwife to attend hospital to be checked. The client’s relative returned home so as to relieve the Claimant.[10]After some back-and-forth on WhatsApp on 26 June 2024, MR wrote: “we value your contribution to the team and I understand that in your currently situation you cannot help much, but it’s really concerning me you latest unreliability which is making a significant impact on our clients and also on other members of the staff.”[11]The Claimant challenged this: “My concern is my health and my pregnancy so that comes first So if that’s concerning you that’s fine I will find somewhere else to work who will understand I have to go to hospital because one of the clients has been violent and that’s a concern of my unavailability”[12]After some further back and forth, MR wrote: “You have been constatly called insick since you find out you were pregnan”.[13]The Claimant, in her Particulars of Claim, regards this as MR having reprimanded her for suffering with pregnancy-related illnesses, contrary to section 18 of the Equality Act 2010 (the 2010 Act). This allegation is referred to in this judgment as Complaint 1.[14]The Claimant replied: “Because I have been unwell Which is allowed I’m allowed to be unwell” 2 of 19[15]MR responded: “I’m still waiting from your doctor reports about you high risk pregnancy to do you risk assessment and make your rota according to your needs”.[16]The Claimant replied: “You won’t be getting anything from me anymore You need to hurry up and find another staff member as I am leaving with immediate effect !”[17]This resignation occurred on the same day (26 June 2024), and the Tribunal finds it was evidently in response to MR’s WhatsApp messages. This is said by the Claimant to have been a constructive dismissal, which was automatically unfair because it was contrary to section 99 of the Employment Rights Act 1996 (the 1996 Act), and this is referred to as Complaint 2.[18]The Claimant was deemed unfit for work by her doctor from 23 July 2024 until she gave birth to her twin daughters prematurely in December 2024.[19]After a period of ACAS Early Conciliation which began on 10 July and ended on 21 August, both of 2024, the Claimant presented a Claim Form to the Tribunal on 30 August 2024.[20]Notice of a Preliminary Hearing for Case Management was sent to the Parties by the Tribunal on 12 September 2024 – to the Respondent’s registered office at 11 Mill Street (the same address to which notice of the claim had been served). Suggested Case Management Orders were sent with that Notice, setting out deadlines for various preparatory steps (such as disclosure, agreeing a bundle for the Final Hearing, and exchanging witness statements), and including an explanation of the possible consequences for non-compliance with Tribunal Orders at paragraph 26. Those Suggested Case Management Orders stated that: “If any of these orders is not complied with, the Tribunal may:(a) waive or vary the requirement;(b) strike out the claim or the response;(c) bar or restrict participation in the proceedings; and/or(d) award costs in accordance with the Employment Tribunal Rules.”[21]The Respondent filed its Response to the Claim on 30 September 2024. The Respondent was not legally represented, and resisted the Claim, giving a brief explanation of its position as follows: “• We hold evidence that we had been a supportive employer to the claimant once we had been informed of the pregnancy.• Claimant had failed to attend an appointment to complete a pregnancy risk assessment booked for 20/06/2024. Assessment completed without claimant present to ensure of her safety.• [The patient the Claimant was caring for on 26 June 2024] is not known to be physically aggressive before the alleged incident nor has been since and claimant failed to complete an incident report, the claimant has a responsibility to complete records on the day of the alleged incident there was no report of any concerns of client hitting out nor from the second carer. 3 of 19• When the claimant requested to leave because of concerns with pregnancy, we acted immediately and the relative of client returned home to ensure that the claimant was able to leave,• We had offered to seek medical assistance for the claimant, ands this was denied as she said, “NO ill take myself”.• Before the claimant’s communicate to the office that she was pregnant, there have been some sickness/unreliability.”[22]In the ET3 Response Form the Respondent identified its point of contact as being Shaina Kumar, and its preferred mode of contact as being email to shaina.kumar@curantcare.co.uk.[23]In April 2025, Ms Kumar changed her name to Lara Ben Aicha, and started to use an email address bearing her changed name. She understood that the Respondent’s IT team had set up an automatic redirect of emails sent to her Shaina Kumar account to her new email address in the name of Lara Ben Aicha. It seems from what transpired, though, that it had not.[24]The Preliminary Hearing for Case Management took place on 3 July 2025. The Respondent did not attend, and nor did it provide any explanation – before or after that hearing – for its non-attendance. The Claimant did attend. The Employment Judge at that hearing: a) Listed the Claimant’s complaints and his understanding of the issues between the Parties based on the information before him; and b) Varied some of the deadlines for compliance with the preparatory steps that the Suggested Case Management Orders had described.[25]Those Case Management Orders provided that either Party could comment on the list of complaints and list of issues within 14 days of receiving his Orders – and neither did so. The Claimant now says that she was in error in not doing so, as those Orders did not accurately reflect the terms of her section 18 complaint. (This matter is described in The Hearing section of this judgment in more detail.) The Tribunal sent its Orders, as the Respondent directed, by email to Shaina Kumar, on 30 July 2025.[26]On 29 September 2025, two months after the deadline specified in the Case Management Orders, the Claimant sent her Schedule of Loss to the Respondent.[27]By 24 October 2025, the Claimant’s solicitor had gleaned that Ms Kumar had changed her name, and therefore her email address. It began corresponding with the Respondent using Ms Ben Aicha’s email address. On 24 October 2025, the Claimant’s solicitor sent to Ms Ben Aicha’s email address, and to the email address of the Respondent’s CEO, Sibi Kumar, various documents which included a draft hearing bundle. The draft hearing bundle included the Case Management Orders made at the Preliminary Hearing, and the Suggested Case Management Orders. The Tribunal therefore finds that, notwithstanding the Respondent’s failure to inform the Tribunal of its change of contact details, and notwithstanding the fact that the Respondent mistakenly believed that emails sent to Shaina Kumar would be redirected automatically to Ms Ben Aicha, by 24 October 2025 the Respondent was apprised of the terms of the Orders made at the Preliminary Hearing, and the fact that it had not complied with what it had been Ordered to do. 4 of 19[28]On 3 November 2025 the Claimant wrote to the Tribunal: a) Informing the Tribunal that the Respondent had not disclosed any documentation to the Claimant by that time, despite the deadline for it to do so having been 21 August 2025; b) The Claimant had chased the Respondent, reminding it of its obligations, by email and by recorded post (with confirmation received by the Claimant that the documentation had been delivered to the Respondent); and c) Seeking an Unless Order.[29]The Tribunal had not responded to that application by the time of sending its prehearing check on 25 November 2025.[30]The Claimant replied to that pre-hearing check on the date it was sent, reminding the Tribunal of the extant application for an Unless Order.[31]Regional Employment Judge Khalil sent a warning to the Respondent on 18 December 2025, threatening to strike-out its Response because the Respondent did not seem to be actively pursuing it.[32]The Respondent replied on the same date (indeed, within 30 minutes of the Tribunal’s email attaching the strike-out warning): a) Confirming that it did wish to continue to defend the Claim; b) Asking that its Response not be struck-out; c) Asking that the hearing to determine the case proceed, “so that all matters can be addressed fully”; and d) Expressing a willingness to comply with any directions issued by the Tribunal and to engage constructively in the process. 33. 22 December 2025 the Respondent disclosed the documents it wanted to rely on in the Final Hearing to the Claimant, and sent two written witness statements from two of its employees.[34]On 23 December 2025 the Claimant’s written witness statement was sent to the Respondent.[35]EJ Sudra replied on 31 December 2025, acknowledging the Respondent’s reply, but noting that the Respondent had failed to explain why it had not fully engaged in the process or why it had not complied with Case Management Orders. EJ Sudra Ordered that the Respondent would not be able to adduce any further documents, evidence or witness statements unless an Employment Judge expressly grants it permission to do so. EJ Sudra did not expressly address REJ Khalil’s strike-out warning, but appeared, by the terms of the letter of 31 December 2025, to determine not to strike-out the Respondent’s Response but to allow that Response to stand as the Respondent’s position in the Claim, subject to the Employment Judge at the Final Hearing granting it permission to provide any evidence. The hearing Adjustments
The hearing
[36]No adjustments were sought by either party. 5 of 19 Representation[37]The Claimant was represented by Mr Lloyd, a solicitor. The Respondent was represented in the hearing by Ms Ben Aicha, the Respondent’s Head of Operations (non-lawyer). Compliance with Case Management Orders[38]As described in the Facts above, the Respondent was unaware of the terms of the Orders made at the Preliminary Hearing for Case Management until 24 October 2025. It did not, from that point, start to comply with them, but began to do so following receipt of the strike-out warning from REJ Khalil.[39]The Claimant had chased the Respondent for compliance by it with various of Case Management Orders, but it also appears that the Claimant was tardy in her own compliance. List of Issues[40]The Claimant’s solicitor provided to the Tribunal a draft List of Issues which he had prepared ahead of the Preliminary Hearing for Case Management, as well as his attendance note of that hearing, which records that the Employment Judge conducting that hearing had essentially said he would adopt the Claimant’s draft List of issues, but rewording it a little to adhere more to the Tribunal’s standard form Orders. However, the Claimant says now that the Orders that followed erroneously failed to capture two incidents of detriment contrary to section 18 of the Equality Act 2010, namely: a) Whether, on or about 26 June 2024, MR offered no sympathy and ignored the Claimant’s message that she had been advised by her midwife to go to hospital for an urgent scan after she was struck by a service user; and b) Whether MR reprimanded the Claimant for asking to leave work to go for a scan, implying she was unreliable and constantly calling in sick since she announced her pregnancy.[41]The Employment Judge agreed that both of those factual matters were described in the Claimant’s Particulars of Claim, but it seemed to the Employment Judge that only the second identified in those Particulars as a complaint, and the first seemed to be more of background fact.[42]The Employment Judge explained to the Respondent that the scope of the Claimant’s claim is determined by the Claim Form and Particulars of Claim, not the list of issues. The Employment Judge said that, on a fair reading of the Claimant’s case, she considered that a complaint under section 18 relating to the allegation that MR had reprimanded the Claimant for her absence (i.e., b) above) “shouted out” from those documents (McLeary), and that the Employment Tribunal was obliged to determine the Claim the Claimant has brought (Price). The Employment Judge explained that a list of issues is case management tool, and does not determine the scope of the Claim brought (or the Response to it) (Parekh and Moustache). This is therefore referred to as Complaint 1 above.[43]The Employment Judge noted that the facts in relation to a) were outlined in the Claimant’s Particulars of Claim, but unlike b), that matter was not specifically identified as giving rise to a legal complaint. The Claimant’s solicitor confirmed that the Claimant would not pursue a) above, and was content if the Tribunal 6 of 19 would consider two complaints, being b) and the complaint of automatic unfair dismissal (Complaint 2).[44]As the terms of the WhatsApp messages are in evidence and not disputed, the issues for the Employment Judge to consider in respect of Complaint 1 were: a) Whether, by the terms of and context of the WhatsApp correspondence between MR and the Claimant on 26 June 2024, did MR treat the Claimant unfavourably by reprimanding her? b) If so, was that unfavourable treatment either:(i) Because of the Claimant’s pregnancy; or(ii) Because of illness suffered by the Claimant as a result of it?[45]It is accepted by the Parties the time this WhatsApp correspondence occurred when the Claimant was pregnant, and so this occurred in the “protected period” in respect of the Claimant, as described in section 18(6) of the 2010 Act. Documentary evidence[46]The Claimant prepared a hearing bundle of 131 pages, and sent that to the Respondent ahead of this hearing. That bundle was agreed by the Respondent to include all the documents the Respondent had served on the Claimant in December 2025. No further documents were sought to be admitted into evidence by the Parties. Witness evidence[47]The Tribunal heard evidence from the Claimant.[48]The Respondent provided written witness statements from two people: a) “A”; and b) “TN”.[49]Neither of the Respondent’s witnesses attended the hearing, and so the Employment Judge invited the Parties to make submissions on the weight to be given to those statements. In fact, those statements did not relate to the issues in the case, and so when neither Party made any representations about the weight to be attached to those statements, the Employment Judge did not ask for them. The statements were simply not relevant to what MR wrote by way of WhatsApp messages (which was not disputed), nor the relevant context in which they were rightly to be read by the Claimant. Submissions[50]Each of the Respondent and the Claimant made oral submissions in support of their respective positions. While the Employment Judge had indicated that they would have ten minutes apiece plus a right of reply, in fact both Parties took slightly longer, and the Employment Judge did not stop them. Law Scope of a pleaded claim; status of a list of issues
Law
[51]The scope of a claimant’s claim, and a respondent’s response, is defined by an objective analysis of the pleadings (Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185). The claim the claimant 7 of 19 has brought is set out in the Claim Form and any accompanying Grounds of Complaint. Altering that scope (besides by withdrawing all or some part of their claim or defence) requires the permission of the Tribunal by way of an amendment application.[52]A list of issues is not a pleading – it is a case management tool (Parekh v Brent LBC [2012] EWCA Civ 1630), the purpose of which is to summarise the existing pleadings, not to amend them (Moustache). A list of issues, even if devised by the parties, only becomes the list of issues in the case when adopted by the Tribunal. It is an extremely useful tool, but it is only that. The true scope of the claim, or the response, as appropriate, is determined by the relevant pleadings (and any subsequent permitted amendment).[53]The Tribunal conducting the Final Hearing is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence (Price v Surrey CC UKEAT/0450/10/SM). The Tribunal needs only decide enough to reach a conclusion on the claims that have been pressed (Moustache). It does not have a general duty to take pro-active steps to prompt some expansion or modification of the case advanced by a party where that might be to their advantage (Moustache).[54]However, a list of issues is designed to summarise the case in a way that enables the Tribunal to efficiently identify the nature of the case and the points that are agreed and those that are in issue between the parties. In time-limited hearings, and in the interests of the overriding objective, the list of issues is an immensely valuable tool. A Tribunal will usually be entitled to confine its attention to the issues on the list, but there are at least two categories of situation where it is necessary in the interests of justice to depart from the list of issues: a) Where a pleaded complaint has been omitted from the list in circumstances that do not amount to abandonment of the complaint (the case law in this regard concerns complaints that were obvious – where the pleaded case “shouted out”, for example, a discriminatory reason for dismissal – McLeary v One Housing Group Ltd UKEAT/0124/18); and b) Where a complaint has not been pleaded but it is so obvious on the facts of the case but the fundamental duty of fairness makes it necessary (essential) that it should be raised and considered – i.e., failing to consider that complaint was a perverse conclusion that no reasonable tribunal could have reached (Moustache). Pregnancy and maternity discrimination[55]Section 18(2) of the 2010 Act provides that: “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.”[56]The meaning of “the protected period” is set out in subsection (6): 8 of 19 “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;(b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.” Constructive unfair dismissal[57]The right not to be unfairly dismissed is set out in section 94 of the 1996 Act. For these purposes, an employee is dismissed by their employer if: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct” (section 95(1)(c) of the 1996 Act).[58]This treatment of the employee’s resignation as “constructive dismissal” predates the 1996 Act, and Lord Denning MR in the Court of Appeal decision in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 described the nature of the contractual breach which entitles the employee to accept that breach and treat the employer’s conduct as dismissing them: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”[59]Therefore there are three elements that an employee needs to prove to demonstrate that they have been constructively dismissed: a) A fundamental breach of the contract of employment between them on the part of the employer; b) A causal link between the employee’s resignation and that employer breach; and c) Evidence of the employee accepting that breach before any affirmation of the contract. Fundamental breach[60]The test of whether the term of the contract has been breached is an objective one. There will be no breach simply because the employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held (Omilaju v Waltham Forest London Borough Council [2005] ICR 481).[61]The term breached may be an express term of the contract, or an implied one. In the case of the implied term of trust and confidence: “A finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean inevitably that there has been a fundamental or repudiatory breach going necessarily to the root of the contract, 9 of 19 and entitling the employee to resign and claim constructive dismissal” (Morrow v Safeway Stores plc [2002] IRLR 9). Causal link[62]There must be a causal link between the breach by the employer and the employee’s resignation (one case example is that of the Court of Appeal decision in Meikle v Nottinghamshire County Council [2005] ICR 1). Automatic unfair dismissal where the reason or principal reason for dismissal is the pregnancy of the employee[63]Section 94(1) of the 1996 Act provides that: “An employee has the right not to be unfairly dismissed by his employer”.[64]Section 108 of the 1996 Act qualifies that right: “(1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination… (3) Subsection (1) does not apply if… (b) subsection (1) of section 99 (read with any regulations made under that section) applies”.[65]Section 99 of the 1996 Act concerns leave for family reasons: “(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if- … (b) the dismissal takes place in prescribed circumstances. … (3) A reason or set of circumstances prescribed under this section must relate to- (a) pregnancy, childbirth or maternity…”[66]Regulation 20 of the Maternity and Parental Leave etc Regulations 1999 sets out that: “(1) 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 kinds of reasons referred to in paragraphs (1) and (2) are reasons connected with- (a) the pregnancy of the employee…”[67]The words in Regulation 20(1)(a), referring to the “reason or principal reason” for dismissal, points the tribunal to examine the motivation of the decision maker to act as they did (Kong v Gulf International Bank UK Ltd [2022] IRLR 854). 10 of 19[68]The motivation of the employer is a question of fact for the tribunal to determine, on a consideration of all the evidence in the case (Kuzel v Roche Products Limited [2008] IRLR 530, CA). Unlawful discrimination: injury to feelings awards[69]The legislative provisions concerning compensating claimants for unlawful discrimination or victimisation appear at section 119 and 124 of the 2010 Act.[70]Section 119 includes the following: “(4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).”[71]Section 124: “(2) The tribunal may-(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;(b) order the respondent to pay compensation to the complainant;(c) make an appropriate recommendation…” (5) It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c)…”.[72]The task for the Tribunal, if an award of compensation is appropriate, is to assess the degree to which the claimant’s feelings have been injured by the unlawful discrimination, i.e., the effect of the discriminatory act upon the particular claimant (Eddie Stobart Ltd v Graham [2025] EAT 14), not the gravity of the acts of the respondent (see Komeng v Creative Support Ltd UKEAT/0275/18/JOJ).[73]As described in the case of Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871: “An injury to feelings award encompasses subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.”[74]There has to be some evidence of injury to feelings before an award could be made to compensate for that injury (Ministry of Defence v Cannock [1994] IRLR 509), and the burden of demonstrating that injury and the degree of it sits with the claimant (Graham), but the EAT has recognised that it is usual that some injury to feelings in every kind of discrimination case (London Borough of Hackney v Adams [2003] IRLR 402).[75]The questions for a tribunal are: a) Has the claimant proven with evidence that they have suffered an injury to feelings? In most cases, this will rest on the tribunal’s assessment of the claimant’s own words of how the unlawful treatment made them feel. Tribunals should take claimants as they find them, considering whether their individual circumstances make them more or less vulnerable to upset. Again, the focus is on the effect on the individual, not the heinousness of the discriminatory conduct. b) Was the unlawful discrimination the cause of that injury? 11 of 19 c) What level of award appropriately compensates the injury, without punishing the discriminator? If the claimant has satisfied the tribunal that they have suffered injury, but there is a dearth of evidence as to the degree of that injury, the tribunal may consider it appropriate to draw an inference from other evidence so as to assess the degree of injury.[76]The EAT in HM Prison Service v Johnson [1997] IRLR 162 summarised the legal principles relevant to attributing a value to an injury to feelings occasioned by unlawful discrimination as follows: a) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award; b) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation, but nor should they be excessive; c) Awards should bear some broad general similarity to the range of awards in personal injury cases; d) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings; and e) Tribunals should bear in mind the need for public respect for the level of awards made.[77]Some guidance as to degree of injury relative to the range of degrees of injury seen by the Employment Tribunal is provided by the Presidential Guidance entitled “Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Constructions (UK) Ltd [2017] EWCA Civ 879” from 5 September 2017, as supplemented by annual addenda thereafter. The upshot of those documents is that they set out “bands” of injury to feelings, and value ranges of compensation attaching to those bands. For a Claim Form presented on 30 August 2024, the bands are: a) The lower band (less serious cases): £1,200 to £11,700; b) The middle band (cases that do not merit an award in the upper band): £11,700 to £35,200; c) The upper band (most serious cases): £35,200 to £58,700; and d) Exceptional cases: sums exceeding £58,700.[78]These “Vento bands” are designed to ensure a measure of consistency and fairness in the way in which tribunals endeavour to transpose the degree of injury to feelings into monetary terms.[79]As the EAT noted in the Graham case, so long as the tribunal does not lose sight of the fact that it is compensating a claimant for the injury suffered rather than the manner of the discrimination, the latter can be a useful guide to inferring the former when evidence is otherwise sparse. In other words, the manner of discrimination may provide a means by which the tribunal can properly draw an 12 of 19 inference of secondary fact as to the degree of injury suffered by a claimant when there is little else to go on.[80]Other considerations that may be relevant to inferring the degree of injury on a claimant include: a) The duration of the injury to the claimant’s feelings (Graham); b) The effect of the injury on the claimant’s past, current and future work (Graham); c) The effect of the injury on the claimant's personal life or quality of life (Graham); d) Whether the discrimination can be described as “overt”, as that is more likely to cause distress and humiliation (Taylor v XLN Telecom Ltd [2010] IRLR 499); e) Whether the discrimination was played out in front of colleagues or others (Graham); f) If the discrimination is manifested in a way that depends on an asymmetry of power, influence or information, for example if it is expressed in disciplinary threats that create worry, or in exclusion which causes isolation (Graham); and g) The timing of the discrimination, which may add to its seriousness or impose additional stress, for example, in the case of pregnancy discrimination which may create stress for an expectant mother, or detract from the joy associated with the birth (Gilbank v Miles [2006] IRLR 538). Similarly, age discrimination affecting a claimant approaching retirement may taint their perception of their career and the worth of their working life. Adjustment to awards of compensation for unreasonable failure to comply with the ACAS Code of Practice on disciplinary and grievance procedures[81]Pursuant to section 207A and Schedule A2 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), awards in respect of complaints of (among other things), discrimination in work cases pursuant to the 2010 Act, may be increased or decreased by an amount which the tribunal considers “just and equitable in all the circumstances”, up to a maximum uplift or reduction of 25% if the tribunal considers that: a) The claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies – this includes the ACAS Code of Practice on disciplinary and grievance procedures (the ACAS Code); b) The employer or the employee (as applicable) has failed to comply with that Code in relation to that matter; and c) That failure was unreasonable (section 207A(2) and (3)). Interest[82]Regulation 2(1) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (the Interest Regulations) obliges the Tribunal, when making an award of damages for pregnancy discrimination 13 of 19 (among certain other kinds of awards) to consider whether to include interest on the sums awarded, without the need for any application by a party to the proceedings. The methodology for calculating any such interest awarded is set out in those Regulations.[83]In particular, Regulation 6 provides: “(1) Subject to the following paragraphs of this regulation-(a) in the case if any sum for injury to feelings, interest shall be for the period beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation;(b) in the case of all other sums of damages or compensation… interest shall be for the period beginning on the mid-point date and ending on the day of calculation… (3) Where the tribunal considers that in the circumstances, whether relating to the case as a whole or to a particular sum in an award, serious injustice would be caused if interest were to be awarded in respect of the period or periods in paragraphs (1) or (2), it may- (a) calculate interest, or as the case may be interest on the particular sum, for such different period, or (b) calculate interest for such different periods in respect of various sums in the award, as it considers appropriate in the circumstances, having regard to the provisions of these Regulations.”[84]The statutory rate of interest is 8% at present, and has been in the period since the Claimant’s dismissal and the date of the hearing. Application to the complaints here Complaint 1: unfavourable treatment because of pregnancy, contrary to section 18 of the 2010 Act[85]In order to determine this complaint, the Tribunal needs to determine: a) Whether, by the terms of the correspondence between MR and the Claimant in their WhatsApp correspondence of 26 June 2024, MR treated the Claimant unfavourably; and b) If so, was that unfavourable treatment either:(i) Because of the Claimant’s pregnancy; or(ii) Because of illness suffered by the Claimant as a result of it?[86]It is absolutely clear that MR did reprimand the Claimant by the terms of that correspondence, notably: “it’s really concerning me you latest unreliability which is making a significant impact on our clients and also on other members of the staff”; and “You have been constatly called insick since you find out you was pregnan”[87]Even MR’s request for the Claimant’s doctor’s reports comes across as critical of the Claimant for not having supplied them. 14 of 19[88]Moreover, it is plain that the reasons for these criticisms were because of: a) The Claimant’s sickness absence – for which the only evidence before the Tribunal is that it was because the Claimant had Covid (which the Respondent required the Claimant not to attend work while she tested positive) and later was pregnancy-related; b) The Claimant’s “unreliability”, which strongly appears to be related to the Claimant’s sickness absence (due to pregnancy) and antenatal appointments; and c) The Claimant’s failure to provide the Respondent with medical reports in relation to the Claimant’s high-risk pregnancy.[89]Complaint 1 therefore succeeds. Complaint 2: constructive automatic unfair dismissal, contrary to section 99 of the 1996 Act[90]The key question in relation to this allegation is whether the Claimant resigned in circumstances where she was entitled to resign without notice because of the conduct of the Respondent.[91]The Tribunal finds that it is absolutely plain from the Claimant’s resignation by WhatsApp that the Claimant was resigning in response to MR’s WhatsApp messages.[92]The WhatsApp messages from MR were unfeeling, ill-considered, and frankly, heartless. At a time when any woman considers she may be experiencing a miscarriage, whether caused by workplace injury or not, to write to her in the terms MR did was cruel. This showed a complete disregard for the Claimant, and certainly amounted to a fundamental breach of the term of mutual trust and confidence. This entitled the Claimant to resign in response, which she did.[93]The second question is whether the reason, or the principal reason, for that conduct was: a) The Claimant’s pregnancy; or b) Any illness the Claimant suffered as a result of her pregnancy?[94]The reason for that conduct was the Claimant’s absence from work due to pregnancy and pregnancy-related illness. Complaint 2 therefore also succeeds. Remedy Financial loss
Remedy
[95]In relation to discrimination and the automatic unfair dismissal claim, modest financial loss of four weeks’ earnings is sought by the Claimant, and that is awarded by the Tribunal. Injury to feelings[96]In respect of potential other compensation, only compensation for injury to feelings is sought.[97]The Claimant says that she considers the degree of her injury to sit in the middle Vento band. She relies on the following considerations: 15 of 19 a) This was the Claimant’s first pregnancy, in circumstances where she had been told that she probably would not be able to have children, and she was delighted to be pregnant (i.e., the discrimination occurred at a particularly special time in the Claimant’s life – recognised as a potentially relevant feature for making secondary findings of fact about the degree of injury to her feelings in the case of Gilbank); b) She had been injured in the course of her work by a client pinching and hitting her, and so the Respondent might have been expected to have more readily shared the concerns for the Claimant’s health; and c) She had started to bleed, and she was frightened that she was losing her baby, and this was not an unjustified fear given she had been advised by her midwife to go to hospital to be checked, and she was informing her employer expecting its understanding and support; which together meant that the reprimand that followed could not have come at a worse moment. Moreover: d) While the Respondent attempted to characterise MR’s later message asking for the Claimant’s doctor’s advice about her pregnancy being highrisk as being conciliatory, it is properly to be seen in the context of the messages being exchanged between the Claimant and MR as making further criticism of the Claimant; and e) The Claimant resigned promptly, in circumstances when she and her partner needed her to be working and earning, showing the degree of injury to her feelings.[98]The Tribunal agrees with all of the above, and adds only that the Respondent takes its ‘victim’ as it finds them – and in the Claimant’s case, this included both the state of the Claimant’s pre-existing mental health, and her pregnancy-related health. As for the former, the Claimant’s witness statement and oral evidence described how she had a history of anxiety, for which she had previously been prescribed sertraline, and had recently come off that drug due to her pregnancy. In relation to the latter, the messages from MR would have been additionally hurtful in the context of MR knowing that the Claimant’s pregnancy was high risk (as shown by MR’s request for the relevant documentation showing that).[99]The Claimant’s recovery from the injury to her feelings has taken time – her witness evidence shows that she still dwells on it now, and still feels hurt and angry about what happened 18 months after the event.[100]The Claimant said that she has been reluctant to apply for jobs in the care sector, given what happened, and care sector roles typically provide a ready source of employment. This evidence is of limited relevance, though, given the Claimant was relatively shortly thereafter deemed unfit for work by her doctor for the remainder of her pregnancy, and her twins have just turned a year old. (This evidence would be more relevant if the Claimant was claiming for more extensive financial losses than she is.)[101]The discrimination was overt, and was done in front of others – it was plain to be read in the WhatsApp chat with the on call coordinators for the Respondent.[102]While the messages all took place over the course of a single day, they were threatening – indicating that there was a problem with the Claimant’s employment 16 of 19 caused by her pregnancy-related absences, which implied that some disciplinary action may follow.[103]In this context, the Tribunal considers that an award of compensation for injury to feelings of £18,000 is appropriate. Adjustment for ACAS Code non-compliance[104]The Claimant has not satisfied the Tribunal that the Respondent unreasonably failed to comply with the ACAS Code. It is not clear that the Code applied to her, given that she was no longer an “employee” at the time she raised her grievance.[105]If the Tribunal is wrong about this, and the Code would apply to that grievance, the Tribunal concludes that it is not just and equitable to make an adjustment for the Respondent’s failure to comply with it, given the Respondent had tried to engage with the Claimant about the reasons for her leaving approximately two weeks after the Claimant’s resignation, when a member of the Respondent’s staff attempted to contact the Claimant about an exit interview. Interest[106]The Tribunal is obliged to consider whether to make further provision for interest to be added to the award, and in this case considers it appropriate to do so, so that the award maintains its real terms value.[107]Interest is awarded at the simple rate of 8% per annum for the period from 26 June 2024 to 5 January 2026. This means that 8% interest is calculated on the sums attributable to the compensation for the discriminatory conduct, being £2,340 by way of financial losses plus £18,000 by way of injury to feelings, so 8% of £20,340, over a period of 559 days (so 599/365 days). The Employment Judge discussed this calculation with the Parties, and no objection was made to the calculation of this sum as being £2,492.07. Total award[108]This means that the total award payable by the Respondent to the Claimant is £22,832.07.[109]This would normally be payable within 14 days of the date of 5 January 2026 (when oral judgment was given) pursuant to Rule 64 of the Employment Tribunal Procedure Rules 2024, but that deadline for payment is varied to be 30 days from 5 January 2026, in light of the Respondent’s financial difficulties. Approved by: