Joanne Haider v Cloud Social Media Ltd and 2 others — 2019

The claimant worked first for First Social Ltd and then, after the business was taken over, for Cloud Social Media Ltd from November 2016. The tribunal found TUPE applied to that transfer, that the claimant told the respondents she was pregnant in late November 2016, and that the working relationship was informal and took place largely at the 2nd respondent's home. It also found there had been an informal promise of a 10% shareholding, but the terms were never sufficiently certain and were linked to performance.

The tribunal rejected a number of the early allegations as not being pregnancy-related. It found that exclusion from the accountant meeting in December 2016 was not unfavourable treatment, that the 8 February 2017 exchange about call statistics was driven by irritation about the claimant's time spent on her own business and not by pregnancy, and that the temporary refusal to pay the agreed maternity top-up was motivated by a wish to save money rather than by pregnancy. It also accepted that the respondent was not liable to pay SMP because the MATB1 timing point meant the statutory conditions were not met.

From March to July 2017, however, the tribunal upheld a series of discrimination and harassment findings. It found that failing to pay for a maternity appointment, refusing further paid holiday, blocking the claimant's calls, cutting off a telephone call, and the handling of the grievance and appeal were all unfavourable treatment. In relation to some of those matters, the tribunal found the respondent's explanations were untrue or unsupported and applied the burden-shifting approach under section 136 of the Equality Act 2010, referring to Madarassy and Millwood. It held that the conduct was related to pregnancy/maternity under section 18 and, on the same facts, amounted to harassment related to sex under section 26.

The dismissal was found to be discriminatory and also unfair. The tribunal rejected the respondent's redundancy explanation because there was no documentary evidence of lost clients or a downturn in the business, and an email to the HR adviser suggested that the decision to terminate the claimant's employment had already been made before consultation began. The tribunal therefore upheld the discrimination claim and found the claimant was unfairly dismissed under section 99 ERA 1996. It rejected the respondent's Chagger argument because there was no basis for finding that dismissal would have happened anyway.

The claim for the promised 10% shareholding was dismissed. The tribunal held that there was no sufficiently certain agreement as to what performance was required or when any share transfer would take place, and in any event the claimant had not achieved the sales targets for November and December 2016 that were relevant to the arrangement.

On remedy, the tribunal accepted that the claimant would have taken 26 weeks maternity leave and then returned on £325 per week. It awarded £9,870.69 net financial loss to the hearing date, interest of £622.61 on that loss, £10,000 for injury to feelings in the middle Vento band, £1,292 interest on that award, and £1,000 aggravated damages because of the wording of the original ET3. It also awarded a basic award of £385 for unfair dismissal, together with £385 notice pay, £292 arrears of pay and £2,371.70 holiday pay. On the figures stated, the awards total £26,219.70.