Mrs L Duffy v Barnet, Enfield and Haringey Mental Health NHS Trust — 2022

The claimant, a PA employed since 2008, told the respondent in June 2019 that she was pregnant. The tribunal accepted that a restructure announced in July 2019 was initially planned to be handled by job matching and an informal developmental interview for her move to band 5, but that this changed after HR pressure and she was later put through a formal change process and ring-fenced interview.

The tribunal accepted two pregnancy-related comments by Ms Cleasby in the second week of August 2019 and accepted that Mr Beaton met the claimant on 10 September 2019, referred to her future plans and nodded toward her stomach in a pregnancy-related reference. Those three acts were found to be unfavourable treatment because of pregnancy and to fall within the protected period. Although the claim was presented outside the primary time limit, time was extended as just and equitable under section 123 because the delay was modest, the respondent had early notice of the substance of the complaint, and the prejudice was limited.

The pregnancy discrimination claim therefore succeeded. The direct sex discrimination claim failed because the pregnancy-related acts were treated under section 18 and could not also amount to direct sex discrimination under section 13, while the remaining alleged comments and decisions were found not to be because of sex. The harassment claim also failed: although the tribunal found some unwanted conduct related to pregnancy and sex, it held that the section 26 purpose/effect threshold was not met, noting that the claimant's reaction was relatively modest and that her main concern was the impact of the restructure on her role.

The unlawful deductions claim failed because the tribunal found the claimant was paid correctly at band 5 point 18. It accepted HR advice that point 20 or 21 required substantially more band 5 acting-up experience, found no exceptional circumstances for a salary variation, and concluded there was no evidence she had been underpaid under her contract. No final remedy was determined in this decision; the tribunal only gave a provisional view that any injury to feelings award would likely fall within the lower Vento band, which it described as £900 to £9,100, and invited the parties to try to agree remedy or return for a hearing.