Member N Elliot Tribunal Member J Gallacher Ms S Davis v Represented by Mr J Campbell - Family Friend Wm Donnelly & Co Limited — 2021

The claimant was employed by the respondent from 13 March 2014, moved into accounts in 2015, and after the loss of her baby on 13 February 2019 her maternity leave commenced on 14 February 2019. The tribunal found that the respondent arranged for her to remain on full pay while absent, and that over the following months there were text exchanges and meetings about a possible phased return, training on new software, and home-based invoicing work. It found that her maternity leave ended by operation of law on 17 June 2019 when she returned to work on a part-time basis from home on full pay.

The tribunal rejected the constructive dismissal/unfair dismissal case. It found that the evidence did not support the assertion that her role had been changed to a primarily administrative post, or that her salary or contractual terms had changed after the 3 September 2019 telephone call. It held that there had been no fundamental breach of contract and, even if there had been, her resignation on 11 November 2019 was not in response to that alleged breach because she continued working until 31 October 2019 and had already secured and started another job with the NHS on 18 November 2019.

On the Equality Act claims, the tribunal found no evidence that the claimant had been pressured or coerced into returning to work early, no evidence that Mr Donnelly made the alleged comments about women taking maternity leave, and no sex discrimination in relation to the John Whyte accountant/bookkeeper role. It accepted the respondent's evidence that the vacancy was for someone with greater experience and qualifications than the claimant had at that stage. The harassment claim was withdrawn during the hearing because there was no evidence to support it.

The tribunal also held that the pregnancy/maternity and sex claims were out of time. Although ACAS early conciliation began on 28 November 2019 and a certificate was issued on 28 December 2019, the claim was not lodged until 25 February 2020, and the tribunal was not satisfied it was just and equitable to extend time. Because all claims failed, no award was made. The tribunal said that if compensation had been payable, the financial loss would likely have been limited because the claimant started the NHS job on 18 November 2019.