Miss G Serban Miss R Khajeh v Emax Trading Limited — 2022

The tribunal found that both claimants worked in office administration for Emax Trading Limited and that Mr Abdelmoeti was the sole director. It accepted that Miss Khajeh started on 1 April 2017 and was initially paid partly in cash, giving her more than two years' service by the dismissal date, while Miss Serban started on 1 November 2017 and was pregnant when dismissed. The tribunal treated the meeting on 22 March 2019 as the point at which the employment relationship broke down.

Miss Serban's automatic unfair dismissal claim under section 99 ERA 1996 failed. The tribunal accepted that Mr Abdelmoeti knew of her pregnancy by January 2019 and that he did not carry out a risk assessment after she raised the issue, but it was not satisfied that pregnancy was the reason or principal reason for her dismissal. It found instead that the dismissal followed the 22 March meeting and Mr Abdelmoeti's view that both claimants had not shown him sufficient respect. Her pregnancy discrimination claim under section 18 EqA 2010 succeeded only in relation to the failure to carry out a risk assessment and the respondent's failure to respond when she raised the issue orally and then in writing on 27 March 2019.

Both claimants succeeded only on one direct sex discrimination allegation: the tribunal found that male employees giggled and stared at them when they bent over to take photographs of goods, and that this was less favourable treatment because of sex. The other sex discrimination allegations failed, including the complaints about cleaning toilets and kitchens, the customer comments about putting a finger in sweet, carrying cash to the bank or post office, and the alleged use of the word 'rubbish'. Miss Khajeh's race discrimination complaint failed because the tribunal found no evidence linking the conduct to race. The tribunal allowed the older discrimination allegations to be considered as a continuing act, or alternatively as just and equitable.

Miss Khajeh's ordinary unfair dismissal claim succeeded. The tribunal rejected the respondent's poor-performance explanation, found that the dismissal followed the 22 March 2019 meeting and Mr Abdelmoeti's view that the working relationship had broken down, and held that there was no fair procedure. It also found no Polkey reduction and no reduction for contributory conduct. The tribunal recorded that the ACAS Code of Practice on Discipline and Grievance had not been followed and invited remedy submissions on any uplift.

Both claimants' section 38 Employment Act 2002 complaints about the absence of written statements of employment particulars were well founded, but any additional award was left to the remedy hearing. Miss Khajeh's breach of contract, redundancy payment, and holiday pay complaints were treated as withdrawn and dismissed.