Ms Z Thorlu-Bangura v UK Health Security Agency: 8001337/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001337/2025

Venue Glasgow by CVP

Hearing 21 July 2025

Between

Ms Z Thorlu-BanguraClaimant

UK Health Security AgencyRespondent

Before

Employment Judge L Murphy

Ms A Brocklebank (instructed by Solicitor) for respondent

Date 11 March 2026

JUDGMENT

[1]The claimant was not unfairly dismissed under section 99 of the Employment Rights Act 1996;

[2]The respondent did not treat the claimant unfavourably because of her pregnancy or illness as a result of pregnancy contrary to section 18 of the Equality Act 2010; and the Claim is accordingly dismissed.

REASONS

[1]This was a Final Hearing held in person at the Aberdeen Tribunal into claims made by the claimant against the respondent.

[2]There had been a Preliminary Hearing on 21 July 2025 before EJ Murphy after which case management orders were made. The Note of that hearing E.T. Z4 (WR) also set out a List of Issues, which the parties confirmed at the start of the hearing remained those which were appropriate. They are referred to below.

[3]Following that hearing certain claims made by the claimant were dismissed on withdrawal. The claims remaining were of automatic unfair dismissal under section 99 of the Employment Rights Act 1996, and unfavourable treatment because of pregnancy or illness connected with pregnancy under section 18 of the Equality Act 2010. The claimant had prepared a Schedule of Loss which sought a sum of approximately £65,000.

[4]An earlier Final Hearing in October 2025 had required to be postponed because of lack of judicial resource and the present hearing fixed in its place. The claimant represented herself, and the respondent was represented by Ms Brocklebank.

[5]Before the hearing started the Judge explained about how it would be conducted, how evidence would be given by each witness, and that there would then be cross-examination, any Tribunal questions and then reexamination, the details as to which he set out. He explained that documents relied on should be referred to in oral evidence and explained, as otherwise they would not be read, and that save in exceptional circumstances no further document would be admitted into evidence once the evidence for each party had concluded. He explained that after the evidence was heard each party would be able to make submissions after which the Tribunal would consider matters and issue a Judgment, which would be sent to parties and later added to the Register of Judgments maintained online.

The evidence

[6]A Bundle of Documents had been prepared, most of which was spoken to. The parties had agreed that the respondent would give its evidence first, and that was with Mrs Ruth Lofts, the claimant’s line manager, Mr Axel MacDonald who decided on dismissal and Mr Stephen Jackson a member of the appeal panel. The claimant then gave her evidence, and was her sole witness.

The facts

[7]The Tribunal held that the following facts, material to the issues, had been proved: Parties

[8]The claimant is Ms Zareen Thorlu-Bangura.

[9]The respondent is the UK Health Security Agency. It is an executive government agency of the Department of Health and Social Care. Its principal purpose is to prepare for and respond to infectious diseases and environmental hazards. Contract and role

[10]The claimant was initially employed by the respondent on a fixed term contract on 30 August 2023, which expired on 31 March 2024.

[11]The claimant commenced a new and different role with the respondent on 22 April 2024 as a Dental Consultancy Report Writer (DCRW) within the Dental X-Ray Protection Service (DXPS) of the respondent. She entered into a written contract of employment with the respondent. Its terms included as to probation which was for six months but may be extended by a further 3 months.

[12]A Job Description was provided to her for the title of “Higher Radiation Protection Scientist”. That was a description applicable to a number of roles one of which was DCRW. The job summary stated that it was predominantly undertaking the writing of consultancy reports for DXPS.

[13]The role principally involved writing consultancy reports for dental practices. Dental practices provided documentation to the respondent through an online portal. The staff of the respondent accessed that documentation remotely. They assessed compliance by the practice with the Ionising Radiation Regulations 2017 and the Ionising Radiation (Medical Exposure) Regulations 2017, having regard to Guidance Notes that had been issued to address the position of dental practices specifically. Those provisions regulated the safe use of X-ray equipment and related matters for staff and patients.

[14]The respondent had developed a series of template reports to use as the basis for their consultancy reports. The member of staff concerned required to examine the documentation provided, assess that against the Regulations and Guidance Notes, and report on compliance or what was required for that to the dental practice, making comments and giving advice where appropriate. The work could include either assessing or drafting for the practice Local Rules, which were a form of standard operating procedure for the use of such equipment by the practice. The work was undertaken remotely and in the claimant’s case from her home.

[15]Fees were charged for those reports. The average time to complete them was intended to be about four hours and the fee payable was set on that basis. The procedures involved the report prepared by a member of staff being checked by someone more senior. The expectation was that the check be conducted within 15 minutes once the person drafting it had been deemed competent. The procedures for quality assurance were to the effect that a report should be issued within 20 days of receipt.

[16]The claimant’s role also included (to a substantially lesser extent than the consultancy report writing) assessing X-ray equipment used by dental practices, including a form of 3D equipment known as cone B, which involved a site visit and then writing a report. The process was known as CBCT. The claimant conducted visits with an experienced colleague to learn how to do so. Normally six such visits took place before the person being trained was deemed competent to do so alone. The claimant was being trained so that there was cover when the principal person doing so was on leave or otherwise not available.

[17]The claimant was principally a home worker but occasionally required to visit one of the dental practices she was writing a CBCT report for, or one of the respondent’s offices for training. The closest office for her home was in Glasgow, and she attended that office once and the Leeds office once.

[18]The claimant’s line manager was Mrs Ruth Lofts, who was based in Leeds. Probation

[19]When the claimant commenced the role she was placed on a six month probationary period.

[20]The claimant was provided with a variety of training courses and exercises to carry out in accordance with a standard training plan for such a role. The expectation was that by the end of the probationary period she would have demonstrated competence on report writing and other tasks of her role. Other members of staff have completed that training and probationary period successfully. Competence was demonstrated by the employee completing reports timeously with only up to a few minor amendments being required by the person checking it.

[21]The respondent had a written process for management of such probationary periods. It referred to a probation policy, [which was not before the Tribunal]. Under the terms of the process document there was required to be a monthly review meeting with the line manager. Mrs Lofts did not carry out the meetings which ought to have been undertaken in the first two months of employment, but commenced such meetings on the third month after commencement of employment.

[22]The first such meeting was on 25 July 2024, and was recorded on a written probation review form, which involved completing a template. Mrs Lofts noted from work of the claimant that she had seen, and comments from others who reviewed that those persons being known as checkers, that the claimant had been slow to progress. The claimant had completed some CBCT reports but not the full consultancy report. Objectives and an action plan were set.

[23]The second probation review meeting was on 4 September 2024. The claimant’s performance was not regarded as satisfactory by Mrs Lofts from her own assessment of reports she had seen and from feedback from those other checkers who had been checking her work, which included that some reports required a lot of work as corrections, the claimant was not completing the full review reports in the required timescales, and was taking too long to complete the work. The claimant was taking materially longer than the four hours referred to above. She was taking longer on occasion than the 20 days expected for the report to be sent to the dental practice. Her work often required to be amended after the first check, and then sent for a second check. All that took the checkers time to complete. Further objectives and action plan details were set.

[24]The third probation review meeting was on 3 October 2024. By that time it had been learned that the claimant had not passed an X-ray radiation protection service assessment. Her first attempt to do so had a mark of 54% which did not meet the pass mark of 65%. She took a resit, but did not pass that either, although her score had increased to 63%. The same general issues over the standard of the claimant’s work in writing reports and the time taken to complete it were identified. The requirement noted on the form was “Be competent at writing full file review reports – issue within QA timescale and complete a ‘typical’ report in roughly 4 -5 hours.” Under future development/improvement was stated “Standard of reports submitted for checking need significant improvement and the pace at which the work is undertaken also needs improving.“

[25]A number of steps were proposed at that meeting and recorded in an Action Plan to seek to help the claimant to pass probation, including further training courses and assistance from managers and others. The claimant was to keep a daily log of work and time taken for each task, to assist her time management. There was discussion over extending the claimant’s probation for three months to allow her to pass the examination and demonstrate competence. The objectives and action plan reflected the matters discussed.

[26]The claimant and Mrs Lofts met on 18 October 2024 to review her probation period at its end, after an invitation letter for the same dated 11 October 2024. [No written record of that meeting was before the Tribunal]. During that meeting there was another discussion about extending the probation period for three months.

[27]On 6 November 2024 Mrs Lofts emailed the claimant about a report the claimant had prepared, in which Mrs Lofts said that she was a little disappointed, and that there had been lots of errors. The claimant acknowledged errors had been made by her in her reply.

[28]Mrs Lofts formally confirmed the extension of three months by letter dated 8 November 2024. It stated that the probation period was being extended by three months “to give you time to complete the action plan and improve your performance up to the required standard.” Although it did not set an end date, the extended probationary period was up to 22 January 2025.

[29]The claimant emailed Mrs Lofts on 11 November 2024 with regard to sickness, and she was absent until 13 November 2024.

[30]On 26 November 2024 Mrs Lofts emailed the claimant about another report which she said still needed a lot of work, and that some errors were made as the claimant had not looked at things carefully enough.

[31]No review of the claimant’s probation took place in November 2024.

[32]On 5 December 2024 Mrs Lofts emailed the claimant about another report noting that there were “still a lot of careless errors and things [she] don’t seem to have considered fully”.

[33]A further message from Mrs Lofts on 9 December 2024 noted “still quite a few errors” in the report the claimant had prepared. Intimation of pregnancy

[34]On 11 December 2024 the claimant emailed Mrs Lofts and informed her that she was pregnant, with the baby due in June 2025. The claimant raised an issue of conducting surveys of X-ray equipment, which she did not wish to carry out when pregnant on advice from her midwife.

[35]Mrs Lofts raised that request with her line manager Ms Rebecca Fannin, who asked her to obtain further information from the claimant. Mrs Lofts made a Teams call to the claimant later on the afternoon of 11 December 2024 to ask why she had made the request, and the claimant confirmed that it was because of concern over X-rays, although the claimant accepted that there would not be a breach of any regulations in relation to the same. Mrs Lofts mentioned that the claimant was wearing sickness bands on her wrists, and the claimant confirmed that she had been suffering from morning sickness because of her pregnancy, or words to that effect. Mrs Lofts mentioned that other staff had worked on CBCT work when pregnant, and that the exposure of the foetus to radiation when doing so was below applicable limits. The claimant said that she had received advice from her midwife not to do the work, and had a concern if equipment was not working as it should, or the shielding was not adequate.

[36]Mrs Lofts relayed that the claimant had a concern over radiation exposure which is why she asked not to do the CBCT work to Ms Fannin. Neither of them had experience of handling such a request. Pregnant women in the claimant’s role had continued to carry out such CBCT survey work throughout pregnancy. A meeting was arranged between Mrs Lofts, Ms Fannin, and Ms Fannin’s managers to discuss matters.

[37]On 13 December 2024 the claimant emailed Mrs Lofts about feeling sick and asking for time off. Mrs Lofts acknowledged the message.

[38]As the claimant’s line manager, Mrs Lofts ought to have carried out a pregnancy risk assessment for the claimant within 14 days of being informed of her pregnancy. Doing so is required by the respondent’s written policy on pregnancy. Mrs Lofts did not do so. She had forgotten about the need to do so. No one from Human Resources, or any other manager, asked Mrs Lofts about the absence of the risk assessment at any stage.

[39]The risk assessment processes of the respondent include as a matter to address the issue of fatigue leading to errors. Further probation reviews

[40]On 16 December 2024 a further probationary review meeting was held. Mrs Lofts raised with the claimant her performance continuing to be less than required. It was identified that the same general issues with the quality of the claimant’s work, and time being taken to complete it, remained. The claimant’s reports required improvement to a material extent, and the pace at which they were done required improvement. The action plan was again amended to seek to assist the claimant meet the objectives, which included the claimant being able to speak to checkers before a report was completed to check that she was pursuing it on the right lines. It was noted that significant improvement was required by the end of the extended probationary period, which was to end on 22 January 2025.

[41]On 17 December 2024 Mrs Lofts checked with HR whether the claimant was required to be in a probation period, and was informed that she did. She relayed that to Ms Fannin that day, referring to continuing with probation, logging a request for HR support and that “at the moment it is doubtful whether Zareen is going to meet the grade”.

[42]On 18 December 2024 a meeting of managers to discuss the claimant’s request took place, after which Mrs Lofts confirmed to the claimant by email on 19 December 2024 that as they were sympathetic to her feelings her request was granted. No CBCT surveys were carried out by the claimant from and after 11 December 2024.

[43]On 3 January 2025 Mrs Lofts emailed Ms Fannin with regard to information on the claimant’s progress. She noted that the claimant was taking about a day to prepare reports. She expressed her view of being worried about the claimant’s making careless mistakes and lack of understanding of the Guidance Notes.

[44]On 8 January 2025 the claimant met Ms Fannin for a monthly review meeting as Mrs Lofts was on annual leave. Following that meeting the claimant and Ms Fannin exchanged emails about the process at the end of the probation period. Ms Fannin explained that the claimant had to the end of that period to meet her objectives.

[45]The claimant continued to carry out work for the respondent. She submitted reports for checking and received comments from checkers during January 2025. In January 2025 her reports were checked by Mrs Lofts, Ms Joanne Shaw and Mr Philip Judd. Four reports the claimant had prepared were returned to her with a material level of corrections and comments. The amendments were required to provide correct advice to the dental practice concerned as to its compliance with the relevant Regulations and Guidance Notes.

[46]The claimant maintained a daily log of work including the hours spent on tasks, and a spreadsheet recording the progress of the work including the date referred to her, the date she sent it to be checked, the date of the checker’s response, and whether a further check by a checker was needed. The claimant received three instructions for reports to be done for others in the team in the days prior to 22 January 2025.

[47]On 22 January 2025 a meeting to review the position at the end of the claimant’s extension of probation took place with Mrs Lofts. Mrs Lofts reviewed matters in light of her own experience of the claimant’s work and the feedback she had received from other checkers. She noted some improvement but did not consider that the claimant’s performance met the standard required. She held that view because of the number and extent of the amendments and comments from checkers. She considered that at that stage there should be only a few minor such amendments and comments. Mrs Lofts explained to the claimant that she would refer matters to her line manager for a decision to be taken. Mrs Lofts did so and sent a document to Ms Fannin with her views of the position. Absence and end of probation review meeting

[48]On 23 January 2025 the claimant commenced a period of absence on account of sick leave. She later provided GP fit notes for the absence which referred to “stress at work”. They were dated 22 January 2025, 2 February 2025 and 14 February 2025 and covered the period from 22 January to 2 March 2025.

[49]On 24 January 2025 Ms Fannin wrote to the claimant for an end of probation review meeting and invited her to attend that on 4 February 2025. The letter made her aware that one possible outcome could be termination of her employment.

[50]On 27 January 2025 the claimant emailed Ms Fannin to provide a sick note and state that she was still off sick. Ms Fannin replied on 29 January 2025 to state that the meeting was rescheduled, and a letter of that date confirmed that it was for 6 February 2025. The meeting to review matters was delayed by the claimant being off sick. Ms Fannin was to be leaving her post at or around this time.

[51]By letter dated 5 February 2025 the meeting was re-scheduled for 19 February 2025 with Mr MacDonald attending in place of Ms Fannin.

[52]On 11 February 2025 Mrs Lofts emailed the claimant at her home email address. It referred to the fact that the claimant had not responded to Ms Fannin and the meeting rescheduled to be with Mr MacDonald. She asked if there was anything she could do to support her such as refer her to Occupational Health.

[53]The claimant replied on 17 February 2025 providing the sick note, confirmed that it had extended the absence to 2 March 2025 and said that she would appreciate a referral to Occupational Health. Mr MacDonald replied to that message, having been copied into it, that same day stating “we will get the ball rolling on an occupational health referral.” He referred to the rescheduled meeting when the claimant may feel better and able to attend and if she was unable to attend she could send “relevant feedback you have on your work over the probation period”. He said that the decision of whether she passed probation or not would be made at that meeting.

[54]On 18 February 2025 Mrs Lofts referred the claimant to Occupational Health. They responded on 24 February 2025 and arranged a telephone meeting for 28 February 2025. Dismissal

[55]The meeting with Mr Axel MacDonald was again rescheduled, for 21 February 2025. The claimant did not attend the meeting, but sent comments to him beforehand by email on 19 February 2025 which stated her belief that she had met all the objectives in her probation review and there was no reason why she should not pass probation. She attached documentation in support. She referred to her pregnancy, but did not suggest in terms that pregnancy or a pregnancy related illness had affected her performance at work in that email.

[56]The meeting proceeded in her absence. At the time of it no Occupational Health report had been received. A minute of that meeting is a reasonably accurate record of it.

[57]Mr MacDonald decided that the claimant’s employment should be terminated after he read and reviewed four of the recent reports that the claimant had prepared which had been checked by three different checkers. He considered that the claimant had not met the standard to pass probation. He considered that beyond grammatical or similar errors there were in each of the four reports a series of errors of the advice that was given. That included matters which were wrong, or had been omitted, such as did not comply with the Guidance Notes including in matters of radiation prevention safety where the safety of patients or staff could be affected detrimentally.

[58]He prepared a document recording the decision which concluded “There has been some evidence of improvements but the number of mistakes, factual details missed and output indicates that she still does not meet the post’s criteria and hence her probation cannot be signed of as successful.”

[59]On 25 February 2025 Mr MacDonald wrote to the claimant to provide the outcome of the probation review, which was her dismissal on the basis that she had not passed her extended probationary period. She received five weeks’ pay in lieu of notice. She was told of the right to appeal. The letter was sent to her by email that day, and separately by post.

[60]The claimant had been told that there would be an OH discussion with her on 28 February 2025 and waited for that to take place remotely. It did not. On 1 March 2025 she emailed OH about that, and was told that it had been cancelled after they had been informed of the termination of employment. They apologised for not informing her of that. Appeal

[61]The claimant appealed the dismissal by letter of 6 March 2025. It was acknowledged by Mr MacDonald on 13 March 2025. He sent updates on 14 April and 14 May 2025. Early Conciliation

[62]The claimant commenced Early Conciliation on 23 March 2025. The Certificate for the same was issued on 30 April 2025. The claimant presented the Claim Form on 27 May 2025. Appeal Hearing

[63]There was a delay to the progressing of the claimant’s appeal letter whilst a panel of three persons was organised. The third member of the panel Mr Stephen Jackson, Group Leader, was not contacted until May 2025. The other panel members were Dr Adam Lowe and Mr Nigel Cridland, who were the Heads of Department on a job share arrangement.

[64]An invitation letter was sent to the claimant on 5 June 2025 for an appeal hearing on 9 July 2025. She replied to request another date as that was close to the expected date of birth.

[65]The claimant’s baby was born on 5 July 2025.

[66]Messages were exchanged to arrange the hearing, and it took place remotely on 30 July 2025. The panel members considered documentation including reviewing the recent reports that had been checked and had been considered by Mr MacDonald. Minutes of the meeting were sent to the claimant thereafter which are a reasonably accurate record of it. The panel spoke to Mr MacDonald and Mrs Lofts as part of further investigation.

[67]On 13 August 2025 Dr Lowe wrote to the claimant to inform her that her appeal had been refused. Submissions

[68]The parties each made written submissions of which the following are a very basic summary. The claimant argued that she had demonstrated a prima facie case, from the timeline of events, the change in her treatment after the disclosure of pregnancy, the lack of the pregnancy risk assessment, and changes to how the probation requirements were assessed. She submitted that the respondent had not met the onus on them. She suggested that the respondent’s evidence should be treated with caution, and referred to matters of evidence particularly for Mrs Lofts and Mr MacDonald. She set out her proposed remedy. On jurisdiction she argued that there was conduct extending over a period which failing that it was just and equitable to allow the claims made.

[69]The respondent argued that the onus had not shifted, or that if it had it had been discharged. The respondent invited the Tribunal to accept the respondent’s evidence, and noted that the claimant had not stated to the respondent during employment that her pregnancy or sickness related to it had affected her performance. She had been dismissed as she had not passed probation, with it being evident before and after disclosure of pregnancy that the claimant was not meeting the standard required. The respondent submitted that the claim should be dismissed. It was also argued that jurisdiction did not exist for matters before 24 December 2024.

The law

[70]Section 99 of the Employment Rights Act 1996 states as follows: “99 Leave for family reasons(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— (a) the reason or principal reason for the dismissal is of a prescribed kind, or (b) the dismissal takes place in prescribed circumstances.

(2) In this section ‘prescribed’ means prescribed by regulations made by the Secretary of State.

(3) A reason or set of circumstances prescribed under this section must relate to— (a) pregnancy, childbirth or maternity…… and it may also relate to redundancy or other factors.”

[71]The Maternity and Parental Leave etc Regulations 1999 (“the MAPLE 1999 Regulations) provide in Regulation 20 as follows: “20 Unfair dismissal(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 reason referred to in paragraphs (1) and

(2) are reasons connected with— (a) the pregnancy of the employee;…….”

[72]Section 18 of the Equality Act 2010 provides as follows: “18 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) A 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………….. (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.”

[73]Section 39, within Part 5 Work, provides as follows: “39 Employees and applicants ……. (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment. …….”

[74]Section 123 of the Act provides as follows: “123 Time limits (1) Subject to section 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable……. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.”

[75]Section 136 provides as follows: “136 Burden of proof If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.”

[76]Provisions as to the effect of Early Conciliation are set out in section 140B. Reason for dismissal

[77]In Abernethy v Mott Hay and Anderson

[1974] ICR 323

, the following guidance was given by Lord Justice Cairns: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”

[78]These words were approved by the House of Lords in W Devis & Sons Ltd v Atkins

[1977] AC 931

. In Beatt v Croydon Health Services NHS Trust

[2017] IRLR 748

, Lord Justice Underhill observed that Lord Justice Cairns’ precise wording was directed to the particular issue before that court, and it may not be perfectly apt in every case. However, he stated that the essential point is that the 'reason' for a dismissal connotes the factor or factors operating on the mind of the decision-maker which caused him or her to take that decision. Automatic unfairness

[79]For section 99 to apply it was held in Del Monte Ltd v Mundon

1980 ICR 694

, that it must be shown that “the employers knew or believed that the woman was pregnant or that they were dismissing her for a reason connected with her pregnancy …[such that] the employers have either the knowledge of, or a belief in, the pregnancy, or knowledge of the facts, and their connection with the pregnancy, if there is some other reason than the pregnancy, which is the reason for the dismissal”.

[80]In Atkins v Coyle Personnel

[2008] IRLR 420

the EAT held a causal connection was required between the pregnancy or pregnancy related sickness for what is now Regulation 20 of the MAPLE 1999 Regulations. It was to be approached in a pragmatic commonsense fashion.

[81]If section 99 is engaged a dismissal is automatically unfair. The social policy behind the terms of section 99 (and the Regulations) was made clear in a decision of the House of Lords in Brown v Stockton-on-Tees Borough Council

[1988] IRLR 263

. It was held, in relation to predecessor provisions and in the different context of a dismissal for redundancy that ''[Section 99] must be seen as part of social legislation passed for the specific protection of women and to put them on an equal footing with men.”

[82]Section 99 and the related MAPLE 1999 Regulations were introduced to give effect in UK law to the Pregnant Workers Directive 92/85/EEC, which is part of assimilated law under the European Union (Withdrawal) Act 2018 as amended by the Retained EU Law (Revocation and Reform) Act 2023. The provisions are construed purposively in that context. Pregnancy discrimination

[83]Section 18 of the 2010 Act requires a connection between the reason for the unfavourable treatment and pregnancy. It is not sufficient for pregnancy to be part of the background context. That was addressed in the case of Interserve FM Ltd v Tuleikyte

[2017] IRLR 615

. The EAT held that any discrimination could only arise from a finding that the claimant's maternity leave (the issue in that case) was the reason (conscious or unconscious) for the treatment. The principle applies also to pregnancy or pregnancy related sickness. The decision was approved by the Court of Appeal in City of London Police v Geldart

[2021] IRLR 749

[84]The issue of causation is a matter of determining the reason why an act said to be a detriment, or the dismissal itself, took place – Indigo Design Build and Management Ltd v Martinez

UKEAT/0020/14

. The position as to causation was further reviewed by the EAT in Tuleikyte where it was held that a tribunal must apply the same distinction as in direct discrimination cases between ‘criterion type cases’ and ‘reason why cases’. The difference between the two is explained by Lady Hale in R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS

[2010] IRLR 136

at paragraph 64. For a criterion type case there must be an exact correspondence between the advantaged and disadvantaged groups and the protected characteristic.

[85]James v Eastleigh Borough Council

[1990] IRLR 288

is an example of a criterion type case in the context of direct discrimination, in which the grounds or reason for the treatment complained of is inherent in the act itself. It was a case brought under section 29 of the Sex Discrimination Act 1975. The claimant was charged on entry to a public swimming pool whilst his wife was allowed in free. The Council's policy was to provide free entrance to the pool for those who had reached pensionable age – at the time 65 for men and 60 for women. Had the claimant been a woman he would have been given free entry. The House of Lords considered that the test was a causative one: the question was would he have received the same treatment as a woman but for his sex? The answer was inevitably, yes, and the claim of direct discrimination was upheld.

[86]The EAT in Tuleikyte summarised matters as follows, with that case concerning maternity leave but the principle applying equally to pregnancy or pregnancy related illness, as noted above: “It follows that it is necessary to show that the reason or grounds for the treatment – whether conscious or subconscious – must be absence on maternity leave and the mere fact that a woman happens to be on maternity leave when unfavourable treatment occurs is not enough to establish unlawful direct discrimination under s.18. In cases that do not involve the application of any inherently discriminatory criterion and where the discriminatory reason or grounds exist because of a protected characteristic that has operated on the discriminator's mind or thought processes to some extent (whether consciously or subconsciously) the discriminatory reason for the conduct need not be the sole or even the principal reason for the impugned treatment. It is enough that it is a contributing cause in the sense of a significant influence.” Detriment

[87]The word “detriment” is defined in section 212 only as “detriment does not subject to subsection (5) include conduct which amounts to harassment”. Subsection (5) is where a prohibition on harassment is disapplied. Detriment is otherwise not defined.

[88]In Ministry of Defence v Jeremiah

[1980] ICR 13

, the Court of Appeal held that a detriment exists “if a reasonable worker would take the view that the treatment was to his detriment”. There is a need to show that any alleged detriment is objectively regarded as such as discussed by the House of Lords in St Helens Metropolitan Borough Council v Derbyshire

[2007] ICR 841

[89]In Warburton v Chief Constable of Northamptonshire Police

[2022] ICR 925

the EAT summarised the principles as being that detriment is to be interpreted widely and it is not necessary to establish any physical or economic consequence. It is enough that a reasonable worker might take such a view, such that the bar is not particularly high. Burden of proof

[90]Section 136 of the 2010 Act implemented the Burden of Proof Directive 1997/80/EC which remains of effect as assimilated law. There is a twostage process in applying the burden of proof provisions in discrimination and victimisation claims, arising in relation to whether the decisions challenged were “because of” the relevant protected characteristic, as explained in the authorities of Igen v Wong

[2005] IRLR 258

, and Madarassy v Nomura International Plc

[2007] IRLR 246

, both from the Court of Appeal. The claimant must first establish a first base or prima facie case by reference to the facts made out. If she does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the tribunal to conclude that the claimant’s allegation in this regard is to be upheld. If the explanation is adequate, that conclusion is not reached. In Hewage v Grampian Health Board

2012 IRLR 870

the Supreme Court approved the guidance from those authorities.

[91]In Ayodele v Citylink Ltd

[2018] ICR 748

, the Court of Appeal rejected an argument that the Igen and Madarassy authorities could no longer apply as a matter of European law, and held that the onus did remain with the claimant at the first stage. That it was for the claimant to establish primary facts from which the inference of discrimination could properly be drawn, at the first stage, was then confirmed in Royal Mail Group Ltd v Efobi

[2019] IRLR 352

at the Court of Appeal, and upheld at the Supreme Court, reported at

[2021] IRLR 811

. The Supreme Court said the following in relation to the terms of section 136(2): “At the first stage the tribunal must consider what inferences can be drawn in the absence of any explanation for the treatment complained of. That is what the legislation requires. Whether the employer has in fact offered an explanation and, if so, what that explanation is must therefore be left out of account.”

[92]In Igen the Court of Appeal had said the following in relation to the requirement on the respondent to discharge the burden of proof if a prima facie case was established, the second stage of the process if the burden of proof passes from the claimant to the respondent: “To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.”

[93]The same principle applies where other protected characteristics are relied on. Efobi at the Supreme Court also addressed the issue of the failure to call a witness, and in summary stated that whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are, the court said, inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.

[94]The Tribunal must also consider the possibility of unconscious bias, as addressed in Geller v Yeshurun Hebrew Congregation

[2016] ICR 1028

. It was an issue addressed in Nagarajan.

[95]Unreasonable behaviour of itself is not sufficient to found discrimination, but it may be inferred if there is no explanation for unreasonable behaviour (The Law Society v Bahl

[2003] IRLR 640

(EAT), upheld by the Court of Appeal at

[2004] IRLR 799

[96]In Chapman v Simon

[1994] IRLR 124

the Court of Appeal gave guidance about drawing an inference of discrimination, which must be from primary facts that have been found, Lord Justice Longmore stating: “In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference. If there are no such findings, then there can be no inference: what is done can at best be speculation.” Lord Justice Peter Gibson stating: “It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. An intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion.”

[97]The Supreme Court considered the drawing of inferences in the Tribunal in Efobi in which Lord Leggatt stated that drawing inferences was a matter of ordinary rationality and that Employment Tribunals should be free to draw, or decline to draw, inferences using their common sense.

[98]The Tribunal considers that that guidance applies both to the claims under the 1996 Act and the 2010 Act, and that essentially the same issues as to the burden of proof apply to the former Act although it does not contain a specific provision for burden of proof, as it does under section 136 of the latter Act. Jurisdiction

[99]Whether there is conduct extending over a period was considered to include where an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant - Barclays Bank plc v Kapur

[1989] IRLR 387

. The Court of Appeal has cautioned tribunals against applying the concepts of “policy, rule, practice, scheme or regime” too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period (Hendricks v Metropolitan Police Commissioner,

[2003] IRLR 96

[100]Where a claim is submitted out of time, there is no formal burden of proof for a claimant to show that it is just and equitable to allow it to be received is on the claimant, but there is a burden on a claimant to persuade the Tribunal to exercise its discretion (Polystar Plastic Ltd v Liepa

[2023] EAT 100

[101]The Inner House reviewed the just and equitable provision in the case of Malcolm v Dundee City Council 2012 SLT 457 and held that the issue of whether a fair trial was possible was “one of the most significant factors” in the exercise of the discretion that the section confers. It is not, however determinative of its own.

[102]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

the Court of Appeal emphasised the width of the discretion given to the Tribunal. That was emphasised further in Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

, which discouraged use of what has become known as the Keeble factors as form of template for the exercise of discretion.

[103]The EAT recently reviewed the issue in Jones v Secretary of State for Health and Social Care

[2025] EAT 76

. Observations on the evidence

[104]We considered that Mrs Lofts was a credible and generally a reliable witness. In our view she had attempted to assist the claimant to succeed in the role throughout the probation process. That was evidenced by the various steps she took throughout it to assist her, which included(i) providing additional training and assistance both internally and externally

(ii) extending the probation period

(iii) giving her suggestions of how to improve her time management such as by use of daily logs and

(iv) although having doubts as to whether the claimant would pass probation not seeking to terminate it earlier than the end of the three month extension.

[105]She did however fail to address the issue of pregnancy as she should. She was not aware of the requirement for a pregnancy risk assessment within two weeks. That was a serious omission, and it is very surprising that it was not picked up by anyone in HR or otherwise. Mrs Lofts stated that HR advice was taken at various points, for example her email to Ms Fannin on 3 January 2025 refers to having a meeting with HR that day, but no one from HR gave evidence.

[106]The claimant said that Mrs Lofts asked her about sickness bands she was wearing when they had a Teams call on 11 December 2024, and we preferred the claimant’s evidence on that, as Mrs Lofts said that she did not remember it but it appears to us likely to have happened and that Mrs Lofts had forgotten about that.

[107]Mr MacDonald was we considered a credible and reliable witness. In our view he made a careful assessment of the claimant’s performance. He looked at four more recent reports she had carried out and been checked from January 2025. He explained that as the most recent ones they would be expected to be the best ones. He was taken through them in detail, and explained the various issues with them. Some were more minor such as the words used but there were many that were more material. As an example, one concerned X-ray equipment which was directed at a door, which was a safety issue the claimant did not mention and was commented on by the checker. That was not a minor matter, but the kind of error that the claimant ought not to have been making at the end of an extended probation period in the respondent’s view. We considered that that was their genuine view, held for good reasons. The role is an important one as part of radiation prevention procedures and compliance. There were many other examples of errors of advice or not noticing material matters in the documentation reviewed, that the checkers referred to in their amendments to the reports or the comments about them. That there was not a reference for a second check is not determinative of whether the claimant met the standard, and we accepted Mr MacDonald’s evidence on these matters in preference to her own view. He is a very experienced person in this area, who undertook a thorough and independent assessment of matters himself, separately to the views of others especially Mrs Lofts.

[108]Mr Jackson gave evidence of the appeal process and decision. The reports were examined by the panel, which included two Heads of Department on a job share, such that three experienced senior managers reviewed the same reports that Mr MacDonald had reviewed, and came to the same conclusion as he had. That gives some support to Mr MacDonald’s evidence.

[109]The claimant we considered to be a credible and generally reliable witness. There were some areas where we preferred the evidence of Mr MacDonald as noted above. The claimant had been permitted to use an aide memoire. She gave her evidence very clearly and candidly. She set out her own belief that she had met the standard to pass probation. She explained about her pregnancy and the sickness she had experienced during it. We had a great deal of sympathy for her. She had tried very hard to succeed in the role, she had worked through the difficulties with morning sickness, and had done her best to meet the standard. She had undergone the extra training offered, and tried to do what was required of her.

[110]We concluded however that on the issue of whether or not she had met the standard to pass probation her evidence should not be accepted. She was not the person best qualified to assess that, as is obvious from her being on probation. Mr MacDonald as a very experienced person in this field was. His assessment from the reports he viewed was that she was quite far from meeting the standard. He denied that her pregnancy or sickness related to her pregnancy had any impact on the decision, and we accepted his evidence in preference to that of the claimant on this. The claimant had not claimed in her email of 19 February 2025 that sickness had impacted on her performance. He had noted her very limited sickness record.

[111]The claimant answered several questions about her claim of detriment or dismissal because of either pregnancy, or pregnancy related illness, where it was suggested that they could not be the reason that she could not say that for sure, or words to similar effect. That was not a strong basis for her claim. She did not give clear evidence as to the impact in fact of pregnancy related sickness on her report writing, but that in general terms she was affected by fatigue and the effects of morning sickness, with nausea and sickness during the day. As a general matter we accepted that sickness and nausea could cause her difficulties, but we did not find evidence of an impact on the quality of the product she produced. There were a series of errors made, as we address below, which were of the same nature as those made during her period of employment prior to her pregnancy or disclosure of it, which had been addressed in the period prior to her disclosure of pregnancy and prior to when she commenced to feel such symptoms in November 2024.

[112]What was also we considered of significance is the lack of any intimation to her employer of her sickness and related symptoms affecting her performance at work. She might have been expected to have done so at the meetings on 16 December 2024, 8 January 2025, and 22 January 2025. These were all when her performance was being assessed during an extended probation period. Whilst she might have thought that her performance was sufficient, that view required to have been reconsidered when Mrs Lofts said that she did not consider that the claimant met the standard to pass probation at the meeting on 22 January 2025.

[113]After that, a meeting was arranged with Mr MacDonald. It was specifically stated that there was a risk of dismissal. By the time the claimant came to write her email of 19 February 2025 that risk of dismissal was or ought to have been entirely clear. We consider that at that stage the claimant would be expected to put forward any argument that her sickness impacted performance in some way if that was the position. But she did not. The email referred to pregnancy, but not that it had in any way impacted her performance.

[114]We did however accept that she tried to work when she could despite the sickness, nausea and fatigue, and tried very hard to meet the standard required of her. She genuinely believed that the standard of her work had improved sufficiently to be passed for the probation period.

Discussion

[115]We require to consider the claim before us, against the List of Issues that has been identified. The claim is not one of unfair dismissal under sections 94 and 98 of the Employment Rights Act 1996, and the fairness of what happened is not therefore a matter we can decide. The focus is on the decision to dismiss, and whether that was because of pregnancy or pregnancy-related sickness. It is therefore largely a matter as to causation, where the evidence of Mr MacDonald as decision-maker is of primary significance. We require to consider whether consciously or unconsciously either of those factors influenced his decision to a significant extent.

[116]We have also considered the issue of detriment and dismissal under section 18 of the 2010 Act, and the various arguments put forward by the claimant. We shall address each of the issues from the List of Issues identified at the Preliminary Hearing, excluding those relating to remedy: 1. Was the reason or principal reason for the dismissal a reason related to pregnancy?

[117]For reasons we address further below in the context of the 2010 Act claim we consider that the burden did shift to the respondent. The burden of proof in detriment cases is governed by section 48, which places the onus on the respondent to show the reason for the treatment in issue where there is a detriment short of dismissal. The decision of the Court of Appeal in NHS Manchester v Fecitt

[2012] IRLR 64

which was in a different statutory context suggests that that same approach should be taken to the issue of dismissal. That is also consistent with the European Union Directive as to burden of proof and related case law, which as noted above remains assimilated law. We proceed on the basis that, from the facts proved by the claimant as we address below, the burden falls on the respondent to prove what the reason for the dismissal was, and that it was in no way whatsoever related to the claimant’s pregnancy.

[118]We have accepted the evidence of Mr MacDonald, which is supported by that of Mrs Lofts and Mr Jackson to an extent, that the sole reason for the dismissal was that the claimant had not met the standard required to pass probation. That standard was, in summary, was not that she was required to produce reports with no comments or amendments at all, but that those comments and amendments were to be few in number and minor in nature such that the check by the checker could take around 15 minutes. That is what was meant by the word “competent” when used in probation review meetings, in our view. Perfection was not required, but competency was.

[119]That had been made clear for example in the probation review document of 3 October 2024, where it was recorded that significant improvement was needed. It was also set out in the review on 16 December 2024. It had been mentioned in four emails from Mrs Lofts in November and December 2024 prior to the disclosure of pregnancy as to the errors that the claimant was making. One referred to her being “a little disappointed”.

[120]That message continued into the meeting on 16 December 2024 which noted the requirement as being competent at report writing, with the standard of reports still needing “significant improvement.” There were detailed comments in the Action Plan and suggestions on how to meet that standard. It included the comment that “Report writing (quality and pace) need significant improvement by end of extended probation period (22/1/25 – 2024 is stated but clearly in error) in order for Zareen to pass her probation. Further extension of the probation period is not appropriate.”

[121]The nature and extent of the changes required to the reports that Mr MacDonald then considered, and gave evidence on, did not meet such a test as to competency. There were four of them, and each had a reasonably large number of such amendments and comments, and many of those were not properly described as minor. Some were clear issues as to patient or staff safety. Others were clear issues to do with compliance with the relevant Regulations and Guidance Notes. We also address the detail of some of that further below.

[122]We considered from the evidence Mr MacDonald gave that the sole reason for his decision was that the claimant was not competently completing the reports. They required materially longer than 15 minutes to check because of the number and extent of the errors within them. The claimant’s pregnancy or pregnancy related illness played no part whatsoever in his decision making, either consciously or subconsciously.

[123]In our view, the respondent has discharged the burden of proving that the claimant’s pregnancy or matters related to it played no part whatsoever in the decision to dismiss. We answer this issue in the negative. 2. Discrimination complaints – time bar Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 2. If not, was there conduct extending over a period? 3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable?

[124]We did not consider that there had been conduct extending over a period, but in all the circumstances we considered that it was just and equitable to accept jurisdiction in so far as what were alleged to be detriments occurred before 24 December 2024. There was no suggestion that there was not a fair trial of the issues. The Tribunal does have jurisdiction for those matters, which in reality cover the period 11 – 19 December 2024, and therefore a very short period of time. 3. Did R treat C unfavourably by doing the following things? a. Ms R Lofts subjecting C’s performance to increased and intense scrutiny from around the first week in December 2024 until C went off sick in January 2025? C says in this period, R Lofts was scrutinizing the daily logs accounting for C’s time and the reports C was doing and wanting to know the feedback C was getting from others for all the reports C submitted during that period. C says the intensity of this scrutiny increased in this period compared with the prior period.

[125]Mrs Lofts accepted that there was an increase in scrutiny as the extended probation period progressed, but the respondent argued that it was not unfavourable treatment. In our view it was, however. That is because within that scrutiny there were comments that were critical of the claimant’s performance and a reasonable person would regard that as a detriment. A sense of increased scrutiny of itself is also liable to cause a person who is subject to that to feel a degree of pressure from that. On these bases we find for the claimant in this regard. b. On the same date in early December 2024, did R Lofts, C’s line manager, respond dismissively to C’s request to cease performing dental X-ray testing further to a recommendation by her midwife on 25 November 2024?

[126]We did not consider that the allegation was established. Mrs Lofts sought further information as to the reason for the request, discussed it with managers as she told the claimant she would need to do, and then wrote 8 days later to confirm that the request had been granted. It referred specifically to being sympathetic to the claimant, and that was on the basis that the respondent did not consider that there was any risk of breach of any regulations or similar, but that the claimant had her own concerns. In our view this is not unfavourable treatment. Mrs Lofts was not dismissive as alleged. The claimant clearly thought that it did not need to take that process or time, but we accepted Mrs Lofts evidence on this aspect, that discussions with Ms Fannin led then to discussions with more senior managers, who agreed that the application should be granted. That was then actioned and intimated to the claimant. We did not consider that that sequence of events amounted to less favourable treatment, nor that Mrs Lofts could properly be said to be dismissive of the application the claimant made.

[127]In this regard we did consider the evidence the claimant gave that when she had had a Teams call with Mrs Lofts the latter had remarked on her wearing sickness bands, and that the claimant had referred to having morning sickness. Mrs Lofts did not recall that conversation but we considered that it is more likely that it occurred, as noted below. But we did not consider that that issue caused us to doubt Mrs Lofts’ evidence on the reason for her response or how that had been handled. We considered that she had honestly said that she had forgotten that aspect.

[128]We answer this sub-issue in the negative. c. Failing between the date C disclosed her pregnancy during the first week of December 2024 and 21 February 2025 to carry out a pregnancy risk assessment for C?

[129]This issue is not quite correctly stated as the disclosure was on 11 December 2024 and not therefore in the first week of that month. But the respondent accepted that it had not carried out a pregnancy risk assessment, and that that was required by its own procedure, quite apart from under statutory regulation being Regulation 16 of the Management of Health and Safety at Work Regulations 1999 (“the Management Regulations 1999”). The Tribunal does not have jurisdiction over any issue under the Management Regulations 1999 which means that wholly properly no claim for that breach was made before this Tribunal.

[130]This has been established as a detriment in our view as a reasonable person would regard the failure to carry that out as a matter of significance. That is all the more so when the processes of the respondent for that risk assessment referred to matters such as fatigue affecting performance for example. Under the procedure it ought to have been carried out within 14 days, and in effect therefore before the Christmas break. It was less favourable treatment. The answer to this sub-issue is in the affirmative. d. By subjecting C to negative performance review meetings on 16 December 2024, 22 January 2025 and 21 February 2025?

[131]In our view the comments in these meetings were negative ones, and to that extent can be regarded as unfavourable treatment. This sub-issue is answered in the affirmative. e. Dismissing C on 21 February 2025?

[132]The claimant was dismissed, purportedly on 21 February 2025 although she was not informed of that until 25 February 2025 when the letter stating that was emailed to her. Dismissal is obviously unfavourable treatment. This sub-issue is answered in the affirmative. 4. If so, did the unfavourable treatment take place in a protected period?

[133]In all respects the answer is yes as each act took place when the claimant was pregnant. 5. Was the unfavourable treatment because of pregnancy or pregnancyrelated illness? C says that during that period she suffered from morning sickness but still attended work. She also says her stressrelated illness which caused her absence in January 2025 was related to pregnancy.

[134]We considered firstly whether the onus shifted to the respondent. That involves considering the facts as established but not taking account of any explanation from the respondent. We considered that the claimant had proved primary facts from which discrimination could be inferred such that the onus did shift. That arose from firstly the failure to comply with the respondent’s own policy as to a pregnancy risk assessment, secondly that the respondent was aware of the pregnancy from 11 December 2024 and during a discussion that day Mrs Lofts referred to the claimant wearing sickness bands but had not recalled that in her evidence, thirdly that HR was involved in the process to an extent, for example Mrs Lofts referred to seeking their advice and having a meeting on 8 January 2025 with them, but no evidence that the absence of a risk assessment was addressed by them or others was placed before us, fourthly that the final meeting and decision to dismiss took place when the claimant was signed off sick, and finally that the respondent had offered an OH report, the claimant had accepted that offer, arrangements were being made and referred to by Mr MacDonald on 17 February 2025, but matters proceeded and a decision taken before obtaining the report.

[135]It is accordingly for the respondent to prove in each aspect of unfavourable treatment that either pregnancy or a pregnancy related illness was in no way whatsoever the reason for the detriment, or dismissal. (a) Increased scrutiny

[136]We addressed firstly the matter as to increased scrutiny. In our view it is clear that that was simply as the end of the extended probation was becoming ever closer, and the claimant’s performance was not apparently improving. The messages from Mrs Lofts at times betrayed her disappointment, indicating a sense of frustration, using the phrase “a little disappointed” noted above shortly before pregnancy was disclosed, yet she had made several attempts to help the claimant to pass by the various measures set out in Action Plans. She did so both before and after the disclosure of pregnancy. We found no evidence of a tailing off of support after the disclosure. She kept making suggestions to try and help the claimant meet the standard, including on 16 December 2024. Whilst some parts of the form for claimant comment are not completed, as the claimant referred to in her submission, there is additional detail within the Action Plan section, and reading it as a whole we do not consider that that document betrays any change of stance or attitude towards the claimant.

[137]The comment by Mrs Lofts privately made to Ms Fannin doubting if the claimant was going to pass probation, which the claimant also sought to found on, was not in our view any suggestion of prejudgment. Rather it was based on the recent experience, and at that time the limited period left before a decision. The process allowed for one extension of up to three months. There was the time limiting factor both of the Christmas holiday, and Mrs Lofts having her own annual leave early in January 2025. Her recent reviews of work did not suggest the significant improvement she had identified both on 3 October and 16 December 2024 as being required. We did not consider that this was building a case for dismissal as the claimant argued it was.

[138]It is in our view inevitable that some language changed between 3 October and 16 December 2024 reviews. The former was before extension, the latter during it. The window of time for the clamant to demonstrate her competence was narrowing. We did not consider that the timeline per se demonstrated that the respondent decided dismissal to any extent because of pregnancy or pregnancy related illness.

[139]The claimant further argued that her performance was being considered by Mrs Lofts against another new starter, whose name in evidence was given only as Yasmin, who was a qualified dentist. One of the summaries produced by Mrs Lofts showed the significantly higher levels of reports and emails from Yasmin as against the claimant. At best that was a crude measure, and Yasmin was not someone who from the evidence was pregnant, but we did not consider that this was a matter that affected our assessment of whether the respondent had discharged the onus. Mr MacDonald specifically did not undertake any similar comparative exercise. It is we consider part of the background of the claimant taking too long to complete reports, a matter that had been raised with her in the probation reviews. It is obvious that if she completed them more quickly, she would be able to complete more of them.

[140]In our view the respondent had proved that the claimant’s pregnancy or pregnancy-related illness played no part whatsoever in that increased level of scrutiny. (b) Pregnancy risk assessment

[141]Secondly so far as the failure to carry out the pregnancy risk assessment was concerned we first considered whether this was a criterion type of case (although this had not been the claimant’s argument). We concluded that it was not. It requires an exact correspondence between the advantaged and disadvantaged groups and the protected characteristics, as explained by Lady Hale as had been quoted by the then Mrs Justice Simler in Tuleikyte. James is an example of it. The policy of the respondent requiring a pregnancy risk assessment within 14 days of disclosure did not cause the failure to do so – that is contrary to common sense. It set out a requirement for what had to be done, in the context of statutory duty, and a procedure to follow. The issue arises because that procedure was not followed. A criterion type case is, we consider, in the context of this case where following the procedure (another way of putting the application of the criterion) causes disadvantage to those who are pregnant. That is not the circumstance of the present case. We did not consider that the criterion type case applied in this case, and that it had therefore to be assessed on the basis of the reason why test.

[142]In our view the failure to carry out the pregnancy risk assessment was not to any extent whatsoever because of pregnancy, or pregnancy related illness, rather it was a mistake Mrs Lofts made. She had not read the policy, she said, for 14 years. The claimant was, at the stage of disclosure of her pregnancy, not doing the CBCT work at the time with that scheduled for her not taking place, and by 19 December 2024 her application not to do so at all during pregnancy was granted. None of that form of work took place from the disclosure of her pregnancy onwards. She was working from home. Mrs Lofts had not thought about whether a risk assessment was required in these circumstances. She should have done but that failure was not influenced at all whether consciously or subconsciously by the claimant’s pregnancy or any pregnancy related illness.

[143]Whilst a pregnancy risk assessment clearly was required, there being no exclusion from the requirement in the policy for those home working for example, quite apart from it being a statutory requirement, and the failure was a serious one as we shall come to, the only reason why it did not take place was that Mrs Lofts did not consider whether it was required. Whilst the onus was not on the claimant to raise it or carry it out she had not raised that with Mrs Lofts or other managers thereafter. That is not to say that she required to, but had she done so that would have been a factor to have taken into account.

[144]We took into account the evidence noted above from the claimant that she had been wearing sickness bands and that Mrs Lofts had made reference to that in the Teams call, but we did not consider that that aspect affected our assessment of credibility on this aspect. Whilst Mrs Lofts had forgotten the detail we did not consider that that aspect meant that the reliability of her evidence was materially affected.

[145]We also considered the matter of the absence of any apparent notice of this by HR or others. That was at the least surprising, and suggests a failure of process at the least. But it is clear from the maternity policy that the responsibility falls on the manager, in this case Mrs Lofts. There was no suggestion of anyone raising with Mrs Lofts this failure. Had there been and she had ignored it that would have raised at least the possibility of the reason why test being met by the claimant.

[146]Having regard to all the evidence we accepted Mrs Lofts evidence as to why there had not been that risk assessment conducted, it was wholly unconnected to pregnancy or a pregnancy-related illness and we concluded that the respondent had discharged the onus in this regard. (c) Performance reviews

[147]Thirdly on the various reviews of performance referred to we considered that the sole reason for negative comments was the claimant’s performance. Pregnancy played no part whatsoever in the decision. In that regard we took into account that the performance issues started well before the pregnancy, and continued to the end of the extended probation period. The issues were in essence the same. There were errors made, some from a form of carelessness and others from apparently not fully understanding the relevant provisions and in particular the Guidance Notes. This was not merely the view of Mrs Lofts, but also from the documents before us of other checkers to whom Mrs Lofts spoke, and it is supported by the four later reports Mr MacDonald reviewed, which the claimant considered adequate, but which for reasons we shall come to were not.

[148]That was also in the context that the claimant had taken two re-sits for the examination. The respondent had extended probation to facilitate her taking it a third time, when she passed. The claimant had been given additional support in a number of respects, for example further formal training externally and internally on a variety of matters, and an informal session with Ms Shaw one to one on report writing. Mrs Lofts made further suggestions to her in the 16 December 2025 review meeting, including that she speak to managers before completing some work to check that she was on the right track. She had proposed a daily log of times, and that had been done before the pregnancy was disclosed, such that it was not because of the pregnancy and in any event was done to seek to support her.

[149]The claimant alleged that her passing the exam had not been appropriately acknowledged, but it was referred to on the form for the 16 December 2024 review, such that that had been acknowledged. Whilst that was to the claimant’s credit, and without it she would not have passed probation, that was far from sufficient for her to pass it.

[150]Had Mrs Lofts had some form of mindset against the claimant because of her pregnancy or a pregnancy related illness we do not consider that she would have raised the issue of whether probation was required at all on 17 December 2024. She would not have continued to make new suggestions to help the claimant after being told of the pregnancy on 11 December 2024. In our view the evidence showed a manager trying all she reasonably could to assist the claimant to meet the standard, both before and after that disclosure.

[151]It was also evident that the claimant did not have material time off work after the pregnancy was disclosed. All that there was in that regard was a half day.

[152]On 22 January 2025 being the last day of extended probation Mrs Lofts thought from her own knowledge and the comments of other checkers that the claimant had not passed probation as a professional opinion based on the evidence before her. That is the only reason why she referred matters to her manager for a decision. At times the claimant appears to have accepted that her work was below the standard, for example doing so in November 2024 or stating that she was making progress towards meeting the standard. At other times, including latterly, the claimant argued that she had met the standard. On this aspect however, for reasons we address further below, we considered that the claimant’s evidence was not reliable, and we preferred that of Mrs Lofts. (d) Dismissal

[153]Fourthly as to the dismissal Mr MacDonald came in to address matters when Ms Fannin left. He did so independently, having not earlier been involved. His were a new set of eyes. He was clearly in a position to make the assessment, and took us through the reports which he had looked at being four reports from January 2025. They were the recent ones, which he thought should show the most improvement. Whilst he said that he had not taken account of all of the probation and the passing of the exams or work on CBCT in our view he was essentially seeking to test whether the claimant had passed probation, which meant demonstrating the competency we have described. Doing so by looking at four reports with checker comments and amendments was as objective a way of doing so as we considered existed. It was in our view an entirely sensible way for him to proceed, and his doing so in that manner does not show any suggestion of discrimination on the grounds alleged.

[154]Nothing was said by the claimant in any message to the respondent to suggest that her pregnancy had adversely affected performance at all. That is so particularly in her email to him of 19 February 2025. He did consider absence, but as noted there was very little of that. What the claimant argued in her email was that she had met the performance standard required.

[155]The reports he examined were the reason for his decision. His evidence was that the claimant was quite far from meeting the standard given the number of and the nature of the checkers amendments and comments. He was taken through them in some detail in examination in chief, and was not subjected to cross examination on that detail. His evidence was clear and compelling that the amendments and comments were not minor, but included a number of examples of incorrect advice on issues as to radiation safety. There was a clear evidential basis to support his decision.

[156]The claimant argued that there were three emails latterly sent to her by checkers which did not require a second check to be done. She argued that that meant that her work had been passed as meeting the standard by those checkers. In our view that evidence and argument is not correct. We considered a report checked by Ms Shaw. Ms Shaw had made a series of amendments herself, in effect doing work that the claimant might have done in the original draft.

[157]As simply one example of the nature of that change the claimant had originally written “The arrangements in the surgeries/rooms have not changed, they still provide adequate protection.” Ms Shaw amended that to “The arrangements in the X-ray room have not changed, it still provides adequate protection providing that you continue to reposition the patient so that the primary intra-oral beam is never directed towards the door where the operator stands.” The comment she made was “The beam could be towards the operator so we need to say this, as in the last report.”

[158]Another example again from Ms Shaw was to delete the original wording from the claimant of “You have been completing some image quality audits and the number of rejected images is acceptable” She substituted “You have not entered any audits of image quality since 2020. These image quality audits should be carried out at regular intervals as part of your quality assurance programme.” At best for the claimant she had missed that failure to comply with the requirement.

[159]Another example was an omission by the claimant of reference to a Nomad X-ray set, a form of mobile handheld set, and details as to a panoramic X-ray set, both of which required amendments to wording in the report and signage in order to manage the use of that equipment safely. In order to make those amendments the checker required to have read the case file submitted by the dental practice, and noted reference to those two items of equipment. The claimant had failed to notice that herself.

[160]What the probation review form from 3 October 2024 and 16 December 2024 had specifically required was competency, not the absence of a second check which was a gloss put on them by the claimant, and the checkers had amended the detail within the report when making the amendments, in a sense doing the claimant’s work for her. The Tribunal did not consider that the claimant’s argument that no second check being required meant that the work was at a competent standard was correct.

[161]The first example of amendment given above was one that in our view, and from the evidence, was about staff safety. The detail had been in the previous report that would have been available to the claimant. Her wording as she had drafted it was not sufficient. The other two examples are also matters involving staff and patient safety, and are matters that involve compliance with either Regulation or Guidance Notes which is what these reports highlight. That is their purpose – to allow dental practices to show compliance with what are in effect safety rules.

[162]In that context it is obviously the case that accuracy and reliability of the reports are essential. The process of probation was a period for the employee to demonstrate that she could do so to a reasonable standard, such that material amounts of work to check and correct her reports was not required. But material amounts of such work were still required.

[163]Mr MacDonald in our view was supported by this and quite a large number of similar examples in the four reports that there were not only minor errors of the kind that met the standard to pass probation. Each of those he spoke to collectively supported his evidence that the claimant was quite far from meeting that standard.

[164]The claimant did not seek to cross examine him on this detail, suggesting for example that they were only minor matters, or ones of use of grammar, or ones that did not involve safety either of staff or patients, or that she had in fact followed the Guidance Notes, or otherwise. His evidence in this aspect was therefore unchallenged.

[165]That a second check was not required does not impact on our assessment of the evidence of Mr MacDonald, nor the basis on which he took the decision. Consideration not just of the covering email from Ms Shaw to the claimant but the report itself supports his view, and his evidence to us, as to the lack of competent report writing and there is nothing within that that suggests that pregnancy or pregnancy related illness was in any way whatsoever a factor in his decision whether consciously or unconsciously.

[166]We then considered the decision to proceed notwithstanding the fit note and outstanding OH report. Doing so is not consistent with best practice. But that is not the test. Mr MacDonald considered that it was necessary to take a decision, that had been referred to in an email to the claimant, and it was consistent with the policy as to probation which was that there would be one adjournment if the employee did not attend, of up to seven days, after which it would proceed in absence. Whilst the period of the delay exceeded that, and it could therefore have been exceeded a little further to get the OH report, we did not consider that that fact caused us to doubt the evidence we heard from him as to the reason for dismissal.

[167]Mr MacDonald was asked in cross examination a little about the pregnancy risk assessment. It had not been done, and he did not enquire about it. But the claimant had not suggested in her email of 19 February 2025 that that was a matter that should be considered.

[168]The appeal included a review of those same reports that Mr MacDonald had considered, and the panel members had the same view as Mr MacDonald all as spoken to by Mr Jackson. That is a further albeit minor level of support for his decision, were that to be required.

[169]We consider it relevant that when the claimant initiated her appeal by letter dated 6 March 2025 she did not positively suggest that her performance had been impacted by her pregnancy or sickness related to it, nor did she rely on the absence of the pregnancy risk assessment. She wrote that “Following the disclosure of my pregnancy during the final three months of my probation it does not appear that any consideration was given to how this may have impacted my performance, particularly in relation to report writing.” The claimant did not suggest that it had done so, only that it might have done, but she was and is best placed to have set out what any impact there may have been if that had been the case. Not to have done so at a time when she was aware both of the dismissal and that no OH report would be prepared is we consider evidence that there was no material impact on her performance during that period from pregnancy or pregnancy related sickness.

[170]We further noted that when asked about the position in cross examination her answer was to the effect that she could not exclude pregnancy or pregnancy related illness as affecting performance, rather than positively assert that it had done so and to explain in what respect and in what circumstance.

[171]To her credit she had tried to complete the tasks during the months of December 2024 and January 2025, and she had thought that she had done so effectively so as to pass probation. That remained her own view in evidence. Whilst it might be argued that had she not been pregnant and had not suffered morning sickness and related symptoms her performance might have been better that is a matter of possibility, and not something on which we had proof on the balance of probabilities. In any event it had not been raised with Mr MacDonald in the email to him of 19 February 2025. He was effectively unaware of that, and whilst aware of the pregnancy did not do other than assess the performance from the reports he saw, against the standard to pass probation. There was nothing before him to suggest that performance had been affected by pregnancy or pregnancy related illness at all.

[172]It is also relevant in our view that Mr MacDonald had asked the claimant specifically in his message of 17 February 2025 for feedback on her work during her probation period. If the claimant had thought that pregnancy or pregnancy related sickness had affected her performance that comment by Mr MacDonald might be thought to have led her to set that out in circumstances where her continued position was clearly at risk. Instead she argued that she had met all of the objectives, which included the issue as to competency addressed above. Her argument in effect was that she had shown the significant improvements referred to in the earlier probation review meetings, and therefore that her performance had been better, not worse, after pregnancy.

[173]Similarly she did not reference the OH issue in her email of 19 February 2025. She did not for example suggest that it might lead to evidence material to the decision. She did not require to do so, but the absence of a comment of that nature is one of the factors to weigh in the balance. That was also in the context that the probation process did not provide for further extension, and that Mr MacDonald had indicated in his message to the claimant that a decision would be taken on 21 January 2025.

[174]Having regard to all of the evidence we did not consider that the failure to wait for whatever an OH report might have stated meant that the respondent had not discharged the onus on it. (e) Overall consideration

[175]We then considered all of the evidence in the round, not simply the individual sub-issues. There were two matters which were the strongest arguments for the claimant. The first is the failure of Mrs Lofts to undertake the pregnancy risk assessment. She required in law to have done so, albeit a matter outwith our jurisdiction directly, and that was also required by the respondent’s own procedures. That it was required in the specific context of pregnancy is material. But we accepted Mrs Lofts’ evidence that the failure to undertake it was, in simple terms, a mistake that she made. It was not done, consciously or subconsciously, because of the pregnancy. What might have happened had it been carried out we had no evidence on. It could only be speculation without an evidential base, which is not a proper basis for us to proceed. But the fact of the risk assessment not being carried out did not cause us to consider that the onus of proof on the respondent had not been met.

[176]The second matter was the decision made to dismiss in the absence of the OH report which was being actioned. Mr MacDonald referred in an email to the claimant to getting the ball rolling in that regard, but decided to dismiss before that ball had stopped rolling. That was clearly unfair in the general sense but this case is not one as to fairness as the claimant does not have the service for a claim under section 94 of the 1996 Act. Mr MacDonald considered that a decision should be taken on the basis of the reports he reviewed, and his decision to do so both in general and specifically at that time was not affected to any extent at all by the claimant’s pregnancy or illness connected to it, whether consciously or subconsciously. It is also relevant that the fit notes from the GP referred to stress at work, not specifically to pregnancy or a matter related to it. The absence period started after the 22 January 2025 review meeting, from which it was clearly the case that the claimant’s continued employment was in doubt. There was no suggestion by the claimant at the time that stress at work was caused by pregnancy, or that it had affected her performance detrimentally.

[177]It is also we consider relevant when assessing the overall picture to have regard to the aspect of the evidence concerning the several occasions on which the claimant’s less than competent preparation of reports were addressed. That took place not only in the formal absence review meetings but also by a series of emails from Mrs Lofts in November and December 2024 before the pregnancy was disclosed. The evidence from that, and from Mr MacDonald as to the reports the claimant had prepared which we were taken to in his evidence, showed that unfortunately the claimant continued to make material errors in her reports in January 2025, as she had done in the earlier months. She rather underplayed that evidence in her submission, for reasons that are entirely understandable. We have addressed her own view of the reports as against that of the respondents above. It was we consider clear that she had not demonstrated the competence the role required at the end of the extended probation period. The importance of accurate reports we have also already addressed.

[178]Having regard to all of the evidence we heard we answer this issue in the negative, and this claim therefore does not succeed. The Tribunal decision in that regard is unanimous.

[179]As our conclusion is that both the claims made do not succeed we do not address the issues as to remedy.

Conclusion

[180]In these circumstances we are required to dismiss the Claim.

[181]We wish to record our appreciation for the way in which the claimant and Ms Brocklebank conducted the hearing, and for the steps taken to have the evidence heard within the three days allotted for the Final Hearing. The Tribunal commenced earlier and sat later than normal to do so. Evidence concluded at about 4pm on 12 February 2025. The parties preferred to make written submissions and they were provided as agreed by 4pm on 16 February 2025, and both were most helpful to us.

[182]The claimant as a party litigant conducted the case with no little skill. Her written submission was of a conspicuously high quality for a party litigant. She argued her case as fully as she could, and although we have not found in her favour she clearly had tried hard to meet the standard the respondent required when it employed her. We express the hope that the claimant will find new employment to pursue her career.

[183]There are some matters we consider are worthy of comment. Firstly the respondent failed to follow its own policy on pregnancy risk assessments, which required one within 14 days of intimation of pregnancy but which was not done at all, and that was not picked up by HR or anyone else. That appears to us to be a matter of importance, whether someone is a home worker or not, and we consider merits consideration of immediate action to resolve that matter notwithstanding our dismissal of the claims made. The issue of the apparent breach of the Management Regulations 1999 is not one for further comment by us as it is outside our jurisdiction.

[184]Secondly it was not easy to understand why an employer would offer an employee an OH appointment, act on the response which accepted that offer, and then take a decision to dismiss before receiving the report that can be expected to follow an appointment which had been arranged for what proved to be three days after the dismissal letter was sent, without telling the claimant that the appointment had been cancelled. Again notwithstanding our dismissal of the claims made that is a matter that the respondent may wish to consider for the future. The claimant had expected to have the appointment. Not keeping her informed of the position was highly discourteous to her.

[185]Thirdly there was a delay of around five months to get to an appeal hearing. The appeal and that delay to get to it were not relied on as one of the matters within the List of Issues from the first Preliminary Hearing, but was addressed as above given the evidence heard about it. Despite the limited attempts to justify that delay it was a wholly unreasonable length of time for someone to wait, not least someone who was pregnant expecting her first child in or around June 2025, with the baby born on 5 July 2025. Failing to action the appeal more quickly in such circumstances was we considered a material procedural failure which would have been relevant to fairness had the claimant had the service for such a claim. The claimant did not, but the respondent may well wish to improve its procedures in that regard for the future.