Jessica Lowther v TACS (SW) Ltd and 1 other — 2021

Jessica Lowther worked for TACS (SW) Ltd from 20 November 2017 until 23 April 2019 on a part-time basis. The tribunal found there were no performance or conduct issues during her employment. In early 2019 she became pregnant. The dismissal took place after the respondent said she had indicated she did not want to continue payroll work, which it treated as redundancy. The claimant appealed, saying there was no genuine redundancy and that the dismissal was because of pregnancy or maternity, but she was not offered an appeal hearing. Her holiday pay claim was withdrawn after she had received payment.

On the automatic unfair dismissal and pregnancy/maternity discrimination claims, the tribunal found the claimant had not proved the respondents knew of her pregnancy before the dismissal on 23 April 2019. The judge accepted that the lack of records, the absence of consultation and the refusal to offer an appeal were unsatisfactory, but treated them as poor HR practice rather than material from which knowledge or discriminatory motive could properly be inferred. The tribunal therefore dismissed the claims that she was automatically unfairly dismissed and that the dismissal was unfavourable treatment because of pregnancy or maternity.

The tribunal upheld victimisation and harassment. It found that the claimant's appeal letter of 24 April 2019, which alleged a breach of the Equality Act 2010, was a protected act. The post-appeal correspondence from the second respondent, including accusations of lying and dishonesty, references to defamation proceedings and requests for an address for service, was found to be detrimental treatment because of that protected act. The judge also found that the correspondence after 2 June 2019, when the claimant asked for contact to be through her solicitor, was unwanted conduct related to sex which created an intimidating atmosphere. The tribunal rejected harassment based on pregnancy or maternity because pregnancy and maternity are not a protected characteristic for section 26 harassment.

At remedy, the tribunal applied the Vento guidance and awarded £14,000 for injury to feelings, assessed in the middle of the middle band, plus £2,034.41 interest at 8% for 663 days, making a total of £16,034.41. No aggravated damages were awarded because the judge considered the injury to feelings award sufficient, and no personal injury was proved. The awards were made jointly and severally against both respondents.