The claimant not having two years’ continuous employment with the respondent company, the Tribunal has no jurisdiction to hear her claim for unfair dismissal which claim is dismissed.
REASONS
[1]The claimant in her ET1 contended that she had been unfairly dismissed. She also made other claims. She also made other claims, pregnancy and maternity discrimination, notice pay and other payments. The claims were opposed and the respondent company who argued that the claimant did not have sufficient qualifying service to raise unfair dismissal proceedings. E.T. Z4 (WR)[2]A preliminary hearing took place on 20 December to determine whether or not the claimant had sufficient qualifying service to maintain her unfair dismissal claim.
Issues
[3]The issue for the Tribunal was whether or not the claimant had in fact left the respondent’s employment on 7 March 2022 to commence full-time employment elsewhere or whether there was an employment contract in place to ‘bridge’ this period until the claimant had to the respondent’s employment on 2 May 2022.[4]The Tribunal heard evidence from the claimant on her own behalf. The respondents led evidence from Hannah MacLeod, their Office Manager. The parties had prepared a Joint Bundle of Productions for the preliminary hearing. Mr Holmes had lodged written submissions prior to the hearing.
Evidence
[5]The Tribunal heard evidence from the claimant on her own behalf and from Ms MacLeod the Office Manager of the company. It considered the Bundles of Productions produced by parties. Facts[6]The claimant contacted the respondent when she came across an advertisement for a Receptionist on the “Indeed” website. The role was to act as a relief receptionist, as and when required, for the respondent’s clients. It was explained to the claimant that it was a “zero hours” contract and that work would not be guaranteed. The claimant for her part indicated that she was flexible and had no other commitments and she agreed to work when asked. Her only restriction was that she did not want to work at nights. The claimant was given no contractual documentation by the respondent company. In particular she was not given a contract of employment or statement of terms and conditions.[7]The respondent is a limited company which specialises in security and facility management. It provides ad-hoc staff to clients. It maintains a ‘bank5of such staff.[8]The claimant began working with the respondent. She only worked periodically. In January and February 2022 she was given very little work. She found it difficult to manage financially. Her job coach at the Job Centre suggested that she try and find an alternative employer who would give her full-time work. She looked for full time work.[9]The claimant enjoyed a good relationship with the respondent company in particular with the Office Manager Hannah MacLeod. They kept in contact through WhatsApp messages.[10]On 26 January the claimant exchanged text messages with Hannah MacLeod asking for work. The various text messages are produced from page 80 to 86.[11]The claimant texted Miss MacLeod on 3 March (p81 ) in the following terms: “Hi, Hannah! How are you? Hope all is fine at the office. I wanted to speak with you because, due to my financial situation I have to find a full-time job. I started to send my application to job offers and some interview this week. For me it is hard to write this as Apardion means a lot to me and you all gave me the best support all this time I worked with you and for you. I wish I didn’t have to do this, really.....I hope I will not cause any problems."[12]Ms MacLeod indicated in response that she perfectly understood the position and was sorry that they didn’t have any permanent or regular work.[13]On 7 March the claimant texted: “Hello Hannah! I’ve been accepted to work full-time at Plaza Hotel in Dyce. I will start the training and induction tomorrow. It’s a very bittersweet situation.. ...As far as I know I will have Sunday and Monday off. So I will be happy to cover for Apardion on these days, if you will need me."[14]The respondent responded: “Hi Lavinia congratulations! That’s brilliant news! I hope you will enjoy it! I am so sorry we couldn’t get you anything here but we all wish you nothing but the best![15]The ciaimant replied: “I will visit you some time, I will let you know in advance."[16]The parties remained in periodic contact. On 7 April 2022 the claimant texted: “Hi Hannah! Just wanted to mention that if you’ll even have a part-time job but permanent for me, would be happy to take it Full-time would be great too, but would not the case I can manage with a part-time permanent. It was good to catch up.....”[17]Ms MacLeod responded that they might have an administrative role with the company in their office in Aberdeen. This would be a permanent role. The claimant in a text on 26 April (JB86) said she was interested in this. The claimant subsequently started work as an administrator with the company on 22 May 2022.[18]When the claimant started work at the Plaza Hotel she remained “on the books” of the respondent in that her details remained on their computer system and payroll. She was not given any part-time assignments during this period from March until her return in May. The respondent company did not issue her with a P45. The claimant contact them seeking work. They did not reply to the claimant’s offer to work Mondays And Sundays.[19]The respondent company treated the claimant’s text on 7 March 2022 as a resignation. They did not write confirming their understanding of the position. Witnesses[20]The claimant was generally a credible and reliable witness. She gave her evidence in a straightforward manner. I found her generally to be credible and reliable. Ms MacLeod was also generally credible and reliable. However, she had a tendency of not answering the questions put to her directly and reverting to repeatedly repeating what was the company’s position. This detracted from otherwise was uncontentious evidence. Submissions[21]Mr Purdie set out his submissions briefly. The respondent company accepted that the claimant had been an employee and the issue was whether the employment contract had been brought to an end. The txt exchange was clear that the claimant was offering to continue to work on her days off. It was inconsistent with a resignation. The practical effect was that she was in the same contractual position as she had been before namely able to accept or refuse work. The txt should be given it’s natural meaning. The references to ‘bittersweet’ and “alternative work” should not be given any particular weight in the whole circumstances.[22]Mr Homes had prepared written submissions. It was up to the claimant to demonstrate that she had continuity of employment. He referred to the sort of language used in the txt messages. It was all indicative of a resignation and saying goodbye. The fact the claimant had to seek “alternative ” work, this was “bittersweet”, she would try and visit and “all the best’. It was all indicative of the ending of a relationship and disengagement. The claimant tentatively offered to work on Mondays and Sundays. She would not have done this had she thought she was likely to be asked to work in the future and she did not seek to chase up any possible work in the intervening couple of months.[23]There was he submitted an unambiguous resignation shown by the fact that both parties understood at the time what the position was. If the was an ambiguous resignation then any ambiguity should be read against the claimant. There was in his submission no mutuality of obligations between the parties, to give or accept work, in the period running up to her joining as a permanent full time employee. Discussion and decision[24]The starting point is that the factual background is not really in dispute although there is a different interpretation put on events. Essentially Mr Purdie’s position was that the claimant had not severed her relationship with the respondent company. He did not dwell on what that relationship was but his client had accepted that she had a ‘zero hours’ contract and knew what this entailed. She’d indicated in her txt of the 7 March that she was available for work on Sundays and Mondays. There was, he suggested, no legal difference in her status before and after she took the job at the Hotel. She was still free to accept or decline work. It simply restricted the basis on which she could take work. Accordingly, his position was that there was a contract of employment which spanned the gap irrespective of the fact that the claimant did not actually work during this period.[25]In terms of Section 210(4) of the Employment Rights Act 1996 an employee’s continuity of employment will be broken if there is no contract of employment in place. I accept that the words used in a resignation should generally be taken at their face value (Southern v. Franks Charlesley & Co [1981] IRLR 278CA). The language uses by the claimant was all redolent of her leaving. It was notable that when she joined the hotel as a full time staff member she said she did not know for sure what her days off would be. She ended by saying she might be available on her days off "if you will need me”. As a matter of fact she did not tell the respondent at a later date what her days off were or seek work which all tends to show she did not expect to be given work during this period. This tends to suggest that the resignation was understood by both sides as being a parting of the ways.[26]I accept the submission that the construction put on any correspondence should not be technical. It should reflect what an ordinary reasonable employee would understand by the words used. This also applies to a reasonable employer. Even if the words used by the claimant are treated as ambiguous that does not fit well with the prevailing surrounding circumstances. I accept that any ambiguity should be construed against the claimant (Graham Group Plc v. Garrett EAT 161/97).[27]However, crucially it seems to me that there was no mutuality of obligation between the parties during the period from the 7 March until her employment in May. She did not expect work during this period as is evidenced from the fact that she did not confirm her days off at the hotel nor chase up the lack of any assignments. The fact that her details “remained on the books” was not in my view significant and probably caused by inertia or oversight. Neither was the failure to issue a P45 significant I noted that despite the end of the tax year arriving there appeared to have been no P60 issued either. 28. in order to make a claim for unfair dismissal the claimant needs two years’ service and she has been unable to demonstrate that she has the required service. Accordingly, her claim must be dismissed.[29]It is unfortunate that the respondent company did not have more robust processes in place and did not clarify the claimant’s status either at the outset of her beginning work for them or in March 2022 when she left. If they had it might have avoided considerable time and expense.
Summary
[30]In the more recent case of Ahir v British Airways pic [2017] EWCA Civ 1392, Underhill LJ said as follows: "16. ... Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ' little reasonable prospect of success'."[31]The Tribunal concluded that the claims for notice claim and claim for unlawful deductions should be dismissed as they had no reasonable prospects of success. The claimant had not articulated viable claims. It seemed to the Tribunal that the claim for notice was misconceived.[32]The claim over the incorrect allocation of PAYE was unclear and the claimant at the hearing despite being given an opportunity to do so, could not articulate what sums she believed were still outstanding. The impression the Tribunal was left with was that these sums had probably now been paid but the claimant was trying to seek compensation for the original error and the difficulties she had no doubt experienced.[33]In relation to the race discrimination claim it was clear from what the claimant had said both in her pleadings and during the hearing that the claim she hoped to make was one of harassment. It was out of time. The claimant seemed to have made a conscious decision not to pursue any claim at the time and had only raised it when her employment ended. The claimant had not prepared a written amendment clarifying her claim, nevertheless, the Tribunal considered that it had the essence of her amendment which she had articulated during the hearing. Amendment[34]The claimant in her email dated 16 April had asked to add further allegations. The first was about being asked to work as a Security Guard without proper accreditation. This occurred prior to her receiving her Licence in December 2022. The second allegation was that asking the claimant to work as a Security Guard in early February 2023 just after her miscarriage had a ‘huge impact” on her physical health. We could not see how these matters could add to the claims the claimant already had. Asking her to work without proper accreditation occurred prior to her pregnancy. It is not clear what claim would arise. The claimant did not resign and seemed to have carried out the work willingly. The second matter was also new and again the Tribunal was unconvinced what the actual employment claim might be. The respondent’s position was that this was especially chosen ‘light work’ which the claimant as asked to do and did voluntarily.[35]The second amendment related to further incidents involving he Security Guard referred to by the claimant in her ET1.[36]The Tribunal has wide powers of amendment. The fact that an allegation might be time barred is only one factor in the Tribunal considering any amendment. The second amendment was not, despite the guidance given, reduced to writing by the clamant but it was short. All she could say is that the Security Guard, would try and engage her in conversation regularly (once a week or so) about where she came from including when putting call through to her. She had no dates or times. She had not complained about this at the time and there was no corroboration.[37]The starting point is with the proposed amendment. They both come very late in the day. The second one on the second day of the hearing. We considered the balance of hardship or prejudice in granting or not granting the application. We considered the principles set out in the case of Selkent and also the recent guidance in the case of (Choudhury v Cerberus Security and Monitoring Services Limited [2022] EAT 172}. S/S000162/2023 Page 14[38]Although the proposed amendments were short it they had far reaching consequences. There was a lack of detail which would make investigation difficult. It was unclear of there were legal wrongs being alleged in relation to the emailed amendment. They would all cause the respondent to suffer prejudice if allowed. They might have been able to refute the allegations involving the transfer of calls if these allegations had been made earlier and the transcripts retained and examined. The claimant had decided at the time not to pursue such a claim despite being upset by the Guards actions. The claimant was unsure of the exact legal basis of any claim but was clear that the behaviour was unwanted and made her feel uncomfortable.[39]The Tribunal was not convinced that the claimant had persuaded it to allow the amendments at this late stage for several reasons. The additional incidents were out of time. The incidents were not particularised. It was mindful that allowing an amendment at this stage would require the allegations to be formulated in more detail and this would almost certainly lead to an adjournment, as Mr Homes suggested, to allow the claimant to better particularise her claim and for the respondent to then make further enquiries and instruct their solicitors appropriately. We accepted that there would be real prejudice to the respondent not only in expense and delay but because of the deletion of the telephone recordings. Strike Out/Sex Discrimination[40]In relation to the claim for sex discrimination either direct (Section 13) or Section 18 the Tribunal was conscious that the authorities suggest that’s only in the most obvious cases that claims for discrimination should be dismissed. It considered that the claimant was not legally qualified and had been unrepresented when she had “ticked” the box marked pregnancy/maternity. She was doing no more than indicating that she thought that she had been discriminated against or treated unfairly because of her pregnancy. In exploring this and considering the pleadings the claimant’s position seemed to be that she was unaware of any difficulties in her work that could justify her dismissal. She thought that her work was up to scratch and of good quality. She believed that the only matter that had changed was her pregnancy and that the conjunction of events was significant. She told us that she had a discussion briefly with a second Security Guard in the office where she discussed with him that she wanted to continue to try and have a child. She believed that this would have got back to her employers who did not want to employ someone who might leave work on maternity leave. She believed that her managers were unhappy with the fact that she was off ill and only able to work half days and that this all related to her pregnancy.[41]The pleadings contained some basis for a claim but on a different basis. Paragraph 15 (p.56) it stated: “She believes that the respondents were seeking to replace her due to the perceived impact her miscarriage had on her. n and paragraph 16: “The claimant avers that the decision to threaten the claimant with a capability procedure was motivated by concerns about her health following her miscarriage”[42]We accept that there are deficiencies with this claim but the common thread for the claimant is that there was no basis for the disciplinary matters and her suspicions that the respondent’s manager were concerned at the absences that had occurred and if aware of her hope to try and have a child the future the prospect of her absence on maternity leave. Crucial to this is the claimant’s belief that the disciplinary issues were a sham. The claimant believes that she was discriminated against for these reasons and that by receiving by e-mail on 7 February threatening her with the capability process (which she believed was wholly unjustified) or inviting her to resign was discrimination. Although we accept that the respondent is correct that the difficulty with a Section 18 claim is that the protections afforded to the claimant by that section would have elapsed by the time of the email dated 7 February depending on when decisions were made it could possibly be argued that the claimant might be able to show some detriment occurred in the protected period and that even if she couldn’t there might be a remedy under Section 13.[43]On this basis, and with some considerable hesitation, we indicated that we had concluded that we could not say that this such a claim had no reasonable prospects of success. The evidence of the respondent’s manager would be vital to show when and why he had taken the actions he had.[44]We then proceeded to hear evidence from the claimant. Following the claimant’s evidence Mr Holmes called Mr Neilson who gave evidence on behalf of the respondent. We would add that Mr O Dalagh latterly asked for Miss MacLeod, the Office Manager, to give evidence. She was the claimant’s line manager and the author of the e-mails. However, we took the view that she would add little to the factual background that we had to consider and as the decision maker who authorised the e-mails was Mr Neilson his evidence was the crucial evidence we had to consider. Mr O Dalagh also indicated that he wanted to lead evidence in relation to the deletion of the claimant’s emails on 29 December and in relation and issue that had arisen from Mr Neilson’s evidence in relation to the whereabouts of the “pile of papers” that Mr Neilson said had not been dealt with by the claimant. The Tribunal rejected this application: firstly, these events took place prior to anyone being aware of the claimant’s pregnancy and secondly, such matters seemed to be of relatively little relevance.
Facts
[45]The Tribunal found the following facts established or agreed.[46]The claimant is Romanian. She has good command of spoken and written English. She had worked at Apardion as a Security Guard/Receptionist in 2020.[47]In July 2022 she was asked to fulfil the role as Administrator at their office in Aberdeen. This was a junior role, It involved straightforward and simple administrative tasks. The first two sets of tasks involved reporting to clients any alarms that had been set off in their premises overnight and secondly, reporting on any maintenance issues needed for vacant properties (Vacant Property Inspection Reports). There would generally be four or five alarms each night and it was important for these to be intimated quickly to clients. The respondents wanted this done by 10.30am in the morning. They wanted the Vacant Inspection Reports to be done by 12 o’clock. The claimant also had to process paperwork to ensure new employees were paid.[48]The claimant had a good relationship with Hannah Macleod the Office Manager. They initially shared an office together. It was easy for the claimant to ask Miss MacLeod questions and for her to provide support. There was a re-organisation in the office which led to Miss MacLeod being given her own room and the claimant working in a room generally on her own. The claimant found it more difficult to ask Miss McLeod routine questions about work.[49]The claimant would often become anxious or stressed about her work and this led to her finding it difficult to make decisions.[50]The claimant had a good and supportive relationship with Miss MacLeod.[51]Unknown to the claimant prior to the end of 2022 Miss MacLeod and Mr Neilson had become aware of difficulties with the claimant’s work. She seemed to be unable to deal with the work quickly. Difficulties had arisen on occasion when she had to take telephone messages. She did not accurately relay the information from the call to the intended recipient.[52]The claimant went on holiday in mid December. While on holiday Miss MacLeod discovered the claimant had left work uncompleted. The papers contained miscellaneous administrative work including information required by payroll for new employees and information required for Security Guards’ Certification which had not been dealt with. As a consequence of this Miss MacLeod spoke to Mr Neilson and it was agreed that they would reluctantly have to put matters on a more formal footing. They both liked the claimant and had made allowances for her in the past as she was relatively new to the job but believed that they now had to act. Mr Neilson instructed Miss MacLeod to contact the claimant about their concerns and expectations.[53]As a consequence, Miss MacLeod e-mailed the claimant on 9 January 2022 (JBp.134). The e-mail was in the following terms:- “Hi Lavinia, As discussed, / would like to summarise what we went over this morning so we are all on the same page.• Morning reports - Morning reports are taking too much time, but Lavinia is prioritising the alarm activation reports and there are no issues regarding saving/sending/recording these reports. Student call outs are sent out after. A reasonable deadline for the next week at least is to have all reports sent to clients before 10.30am in the morning with the intention of reducing this time over the next month. Editing should be done on Big Change, if any editing needs done.• VPI’s - The property inspections are a source of stress for Lavinia, as she is concerned with the timings of them and worried about missing reports. The VPI’s in Aberdeen have now been scheduled on a Monday, so the majority of them should be completed before the end of the week. Editing reports is taking too much time. Editing requirements need to be identified, as it may be a template issue, which can be sorted quickly which will save time for future reports. It has been recommended that if there content that needs editing, that it is done on Big Change as it is quicker than Adobe. Another goal set for Lavinia is to try and get VPI’s sent out before 12.30pm, which again, the intent is to reduce this time if possible.• Personnel forms have been neglected over the last few months, which have meant that many employees have not been vetted quick enough, their documents have not been collected on time which had an effect on payroll, and employees who have worked for months do not have a completed pack. I will write up a procedure on all of the steps on how to manage the personnel forms. Every security office needs to be vetted, their files to be sent to FRG ASAP. A deadline of two weeks has been put in place, from the time a starter pack has been handed in to when it needs to be completed if the employee has been deployed. * A phone template message has been created by Derek to help record messages, which has been helpful so for. Lavinia needs to keep calm on the phone, and the templates will hopefully increase her confidence. * Overall focus needs to be kept on admin tasks, not so much what is happening in other areas of the business. General security responsibilities do not lie with Lavinia, but with the security team. For the time being, these are the areas we will be monitoring over the next week, I will carry out a review on Monday the 16th of January. The overall aim is to help Lavinia manage her time more effectively and keep stress levels to a minimum and improve her organization with the aim to be taking on more work. Lavinia, if there is anything here you don’t agree with, please let me know. In the meantime, before the next review, if there is any support you need, please let me know. Thank you Hannah Hannah MacLeod Office Managed[54]The claimant responded to the e-mail of 9 January on 10 January (JBp.133) in the following terms: “H/ Hannah Thank you for your review and ongoing support. TH try my best to get better and successfully meet the requirements below. I understand the impact of my limitations, especially regarding the stress, which I fail to manage. I apologise for any inconvenience created. Kind regards, Lavinia Marin Administrator[55]Unfortunately, shortly after receiving the email from the respondent the claimant became aware that she was pregnant and suffering a miscarriage. This occurred on 12 January. The claimant reported this to her employers and Miss MacLeod e-mailed her on the morning of 13 January: “Mobile told me what happened last night, I’m so sorry to hear that. I know the next while is going to be difficult for you. I can’t imagine what you’re going through right now. Please take as much time as you need, if there is anything that we can do for you please let me know.”[56]Miss MacLeod kept in contact with the claimant through WhatsApp.The claimant told her that she was still unwell. On 20 January the claimant indicated that she was thinking of coming back to work on Monday. Miss MacLeod responded: “Ok let me know if you feel up to it on Monday.”[57]On 23 January the claimant texted that she didn’t feel well enough to come back to work. Miss MacLeod asked if she would be off for the rest of the week.[58]Miss MacLeod txted the claimant on 24 January. In response the claimant indicating that she was going to come back to work on 25th: “/ was wondering if you wanted to come back and do halfdays? Just for a while, I don’t want you to be uncomfortable ”[59]The claimant accepted this and returned to work half days. The claimant’s duties were reduced. She wasn’t given any reporting to do. She asked for more work. On one occasion she was still in the office until 4 in the afternoon. Mr Neilson became aware of this and was told by Miss MacLeod that this was the second occasion where the claimant had effectively worked for a full day. He was surprised at this and told her to go home.[60]The claimant had Security Guard Certification allowed her to work as a Security Guard. When she was fit enough to return to work she was asked to work in this role at premises at AB1 in Aberdeen for a short period. She agreed to do so. The duties were ‘Tight” involving the claimant working with a small team and guarding a secondary entrance. The claimant gave no indication that she would find the work difficult.[61]In the interim period Miss MacLeod had reported to Mr Neilson that there had been no improvement in the claimant’s work. She discussed with him the fact that during her latest period off work she’d discovered further papers which had not been dealt with. She believed that the claimant was responsible. As a consequence the business took advice prepared an e-mail dated 7 February (JBp. 136) the e-mail is in the following terms: “Hi Lavinia, I hope you are well, Thank you again for covering AB1 this week, it has been a great help to us. Following on from our conversation we had a few weeks ago regarding your work performance, I have been monitoring your work in general and I am sad to find that things haven’t improved. Targets were set, which were agreed were reasonable, but don’t seem to be met. Furthermore, I found a large amount of important paperwork that was concealed in your cupboard that contained personnel files and check lists that had been left unattended which caused a lot of work to go through and bring up-to-date, since then I have had to fulfill this part of your job myself. After seeking advice from a Human Resources consultant, we have been advised to look at two options. The first option is that we arrange with you, a capability hearing. This is a meeting, which will be arranged with at least 48 hours’ notice where we go over your role, the targets and why they are not being met, which can possibly result in a disciplinary hearing regarding overall performance and failure to carry out your job description. The second option is that due to your loyalty and service to Apardion, we would pay your full-time wages up to February 17th and end your employment with immediate effect. You would not have to work these hours we would just pay you up until that date. I understand that neither of these may be appealing to you, so we will go with your preferred option of course. We feel given the time you have been in post that Apardion cannot offer any changes to your role, mentoring or additional training that would have a significant impact on your ability to carry out this role, so we have had no option other than to look at ways to address this. Thank you Hannah Hannah MacLeod Office Manager”[62]The claimant responded on the 8 February 2022 indicating that she understood and would bring in her office keys and other items which she did (JB p138). The respondent took this as her resignation. Witnesses[63]The respondent’s witness Mr Neilson was a credible and reliable witness who gave his evidence in a clear and straightforward manner. He showed no antipathy towards the claimant. Indeed, quite the reverse it was clear that the claimant was well thought of, hardworking and well liked.[64]The claimant held honest and trenchant views. She did not believe that there was aby difficulty with her work and accordingly was searching for answers as to why she ended up losing her job. Although claims were made for discrimination it would be fair to say that in her evidence she said that in fact she was not sure what was behind events. We also noted that she did not seek to argue at any point with the criticisms of her work responding to the email dated 9 January (JBp133) that she understood the impact of her limitations. The claimant argued that she was not a confrontational person but her failure to challenge the criticisms went further than not being confrontational it seemed an acceptance of them and was taken as such by the employer. Overall, we did not find her evidence persuasive. Submissions 65, The respondent’s solicitor first of all pointed out that the claimant had not been dismissed. She had chosen to resign. There was no dismissal. She could have persevered with the competency process. The claimant could not demonstrate less favourable treatment on the grounds of her sex. Ther was no detriment she could point to. The only evidence suggestive of discrimination that the claimant could point to was the timing of the email about difficulties in her work with the unfortunate miscarriage she had. The matters were unrelated. The txts, emails and evidence of Mr Neilson and indeed of the claimant herself show that there was a good relationship between the claimant and Miss MacLeod and Mr Neilson. He referred to the strike out application and to the cases of Madarassy and Efobi to which it referred. There was he submitted no “something more”.[66]Mr O Daiagh made a brief response. The claimant’s position was that there was no cause to put her on a competency process and no forewarning of her about any alleged difficulties before January. These emails had a huge psychological impact on the claimant. The email she received effectively forced her to resign and was oppressive. Discussion and Decision[67]Section 13 of the EA is in these terms: “13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 68, The relevant parts of Section 18 of the EA are in these terms: “8 Pregnancy and maternity discrimination: work cases (1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.(2) person (A) discriminates against a woman if, in or after 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 in that protected period as a result of the pregnancy.(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave or on equivalent compulsory maternity leave.(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave or a right to equivalent maternity leave. (5). ...... ................... (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; (aa) if she does not have that right, but has a right to equivalent maternity leave, at the end of that leave period, or (if earlier) when she returns to work after the pregnancy; (b) if she does not have a right as described in paragraph (a) or (aa), at the end of the period of 2 weeks beginning with the end of the pregnancy".[69]The Tribunal had little difficulty in concluding that the respondent company believed that they had cause to raise work issues with the claimant. This happened before anyone knew of the pregnancy. We accepted Mr Neilson’s evidence that Miss MacLeod had previously brought problems with the claimants work to him but because the claimant was popular and well thought of it had been hoped that her performance would improve in time. He was at pains to stress that there was no doubt that the claimant was conscientious and hardworking but seemed to get stuck on routine tasks. This seems to accord with the claimant’s own views expressed in her email (JBp133) where she makes reference to her own limitations and to stress that she cannot manage.[70]The claimant’s own BFP that were lodged when she had legal assistance were somewhat unclear as to what the role her pregnancy had played in the respondents actions referring as it does (JB56) in paragraph 15 to “perceived impact her miscarriage had” and at 16 “a capability procedure was motivated by concerns about her health following her miscarriage” These assertions run contrary to the evidence we accepted and indeed to the emails and texts that were produced which disclose a generally friendly and supportive environment.[71]The claimant had to show that the competency process was driven/caused by discriminatory attitudes. The difficulty she had was that the process started before the pregnancy. We find no evidence that the claimant’s sex or pregnancy had played any part in events that led to her resignation. The claimant’s resignation was not forced on her. She was given the option of arguing her case at an interna! hearing and chose not to do this. We appreciate that she was in a dilemma not wanting to be dismissed and preferring to leave but that it is still surprising that if she believed that she had done nothing to deserve these criticisms then why did she not argue her case. At the hearing she denied responsibility for any work that had not been done saying that it must have occurred when she was on leave and another employee covering her role. She could not show that the competency process was baseless or trivial or being conducted in bad faith or being used against her because of a discriminatory motivation on the part of her managers. We did not have to consider the burden of proof in this case because the claimant was unable to demonstrate that she had a prima facie case of discrimination. She also lacked the “something more” that the law requires to indicate discrimination. In these circumstances the claims must fail.