Ms L Mankau, Counsel For the v Respondent — 2022

Ms Hudson and Ms Waterson originally brought claims for pregnancy and maternity discrimination under s.18 Equality Act 2010, direct sex discrimination under s.13, indirect sex discrimination under s.19, and unauthorised deductions from wages. The tribunal allowed an amendment to add claims under ss.66 and 68 Employment Rights Act 1996, finding that the amendment relabelled facts already pleaded and that the respondent did not need an adjournment or further evidence. After that ruling, the s.18 claim was withdrawn and dismissed upon withdrawal; the indirect sex discrimination and unauthorised deductions claims had already been withdrawn in amended pleadings served on 27 May 2022, and the remaining direct sex discrimination claim was also withdrawn.

The parties agreed that Ms Hudson notified the respondent of her pregnancy on 17 August 2020, that Ms Waterson did so on 21 August 2020, that both were grounded because of pregnancy following a risk assessment, that neither was provided with work before maternity leave, and that each was paid basic salary but not the daily rate in the 2020 pay award settlement. The tribunal found that the pay award provided a daily rate for crew grounded due to maternity when they undertook work on behalf of the respondent, and accepted evidence that the Covid-19 pandemic affected the availability of work.

On liability, the tribunal applied s.66 Employment Rights Act 1996 and regulation 16(3) of the Management of Health and Safety at Work Act Regulations. It concluded that both claimants were suspended from work on maternity grounds because they remained employed but were not provided with work after being grounded due to pregnancy. The tribunal held that they were entitled to remuneration under s.68, and that reliance on the pay award settlement to deny that statutory entitlement would be void under s.203(1) Employment Rights Act 1996.

The s.66 claims were found well-founded. The tribunal adopted the parties' agreed compensation figures under rule 64: £1,572.88 for Ms Hudson and £1,862.91 for Ms Waterson. For case 3301385/2021, the recorded claimant award is Ms Hudson's £1,572.88.

The respondent applied for costs after liability. The tribunal found that the claimants' delay in applying to amend was unreasonable conduct under rule 76(1)(a), and that the withdrawn discrimination and unauthorised deductions claims had no reasonable prospect of success for rule 76(1)(b) purposes, including because the pay-based Equality Act claims were precluded by the statutory provisions identified in the reasons. Taking account of the overlap in evidence, the lack of detail in the costs schedule, proportionality, and the claimants' ability to pay through their union, the tribunal reduced the respondent's claimed costs from £24,818.50 and ordered the claimants to pay £10,000.