Mr S Brittenden, counsel For the v Respondent — 2018

The tribunal found that the claimant was expressly dismissed on 18 September 2018 when Mr McFaull told her that her role as managing director was being terminated. It held that the discussion on that day was not a protected conversation under s.111A ERA 1996 because the dismissal had already occurred before any settlement offer. The respondents' principal reason for dismissal was capability: the contemporaneous record showed continuing concerns about the quality and timing of board papers, risk analysis, transparency, the Spanish project, the German proposal and fundraising.

Although capability was the genuine reason, the dismissal was procedurally and substantively unfair under s.98(4) ERA 1996. The tribunal found that the claimant had not been told that her job was at risk, had not been taken through a formal performance process and had not been given a warning or an opportunity to improve. It considered that a reasonable employer would have allowed a period of about six months after setting objectives, but on the evidence there was no fair process before termination and the dismissal fell outside the band of reasonable responses.

The pregnancy discrimination claim failed because the tribunal was not satisfied that the decision-makers knew or suspected that the claimant was pregnant when they decided to dismiss her. The sex discrimination claim based on the dismissal also failed. The tribunal accepted that the second respondent's treatment of the claimant became more hostile in 2018, and that some remarks were dismissive, but it found that the explanation was frustration with performance and risk appetite rather than sex. On the burden of proof, it was not prepared to infer that sex played a material role in the dismissal.

The victimisation complaint was dismissed. The tribunal held that the alleged dismissal on 25 September 2018 did not arise because it had already found that the dismissal occurred on 18 September 2018. It accepted that the letters of 25 and 28 September 2018, and the discrimination proceedings themselves, were protected acts, but found no causal link between those acts and the later decision not to treat the claimant as a good leaver under the LTIPS. It found that decision was explained by the scheme, the absence of a negotiated settlement, and the respondents' market practice.

The separate sex discrimination complaint about the terms of the 18 September severance proposal was also dismissed. The tribunal found that the proposed comparators, X, Y and Z, were not materially similar because their settlement terms had been negotiated and the circumstances of their exits were different. No final remedy figure was decided in this judgment; the tribunal recorded that a remedy hearing would follow if the parties could not agree matters.