Ms A Brito Brito v One Step Recruitment Ltd — 2021

The tribunal first dealt with timeliness and held that the section 23 ERA wages complaint was in time because the last deduction was on 31 May 2020, while the discrimination and victimisation matters relied on acts continuing into June, September and November 2020. It found that the parties had agreed on 2 September 2019 that Ms Brito Brito would receive enhanced maternity pay at 90% of basic salary for 33 weeks plus 90% of commissions, and that this was a contractual term rather than a discretionary arrangement. The company could not unilaterally withdraw that top-up when it reduced her to SMP from 1 April 2020 because of pandemic-related financial pressure, although the later suspension of commissions and bonuses meant the commission element for May and June was nil for the purposes of the calculation. The tribunal awarded £6,908.32 gross for the April to June 2020 shortfall and did not award solicitors' fees.

All claims of direct sex discrimination under section 13 and pregnancy and maternity discrimination under section 18 were dismissed. On the tribunal's findings, the refusal to continue enhanced pay, the refusal to furlough, the refusal to allow home working from La Palma, and the approach to additional maternity leave were driven by business, travel and operational issues arising from the Coronavirus pandemic rather than by sex, pregnancy, compulsory maternity leave, or the exercise of maternity leave rights. The later change in job title and duties, and the November 2020 telephone incident, were also dismissed: the section 18 claim failed because those matters were outside the protected period or not implemented from a protected-period decision, and the section 13 claim failed because a male comparator in materially similar circumstances would have been treated the same.

The victimisation claim succeeded. The tribunal treated Ms Brito Brito's complaints of discrimination on 4 June 2020, her complaint of unfair treatment because she was on maternity leave on 11 June 2020, and her ACAS early conciliation in August 2020 as protected acts. It found that Mr Mock initially made it hard for her to work part time and that her duties changed so that she no longer performed the role of Chard Branch Manager. The tribunal concluded that the protected acts were a significant factor in those detriments, including Mr Mock's irritation at the ACAS involvement and his reaction to her continuing complaints.

For remedy on the victimisation claim, the tribunal awarded £9,000 for injury to feelings plus £996.16 interest, bringing that part of the award to £9,996.16. It declined to make a personal injury award because the medical evidence identified several other factors in Ms Brito Brito's depression and PTSD, and the victimisation findings were not identified as the primary cause. No recommendation was made because Ms Brito Brito intended to leave her employment. The total award before any lawful deductions was £16,904.48.