M Kearns Tribunal Members: Mrs J Ward Mr J Burnett Ms A Plunkett v Represented by: Mr S Smith Solicitor Auchinbee Care Limited — 2020

The claimant worked for the respondent as a finance administrator from January 2016 until she resigned on 17 July 2018, with termination taking effect on 13 August 2018. She had told the respondent in February 2018 that she was pregnant, and the tribunal found that the first two antenatal appointments in March 2018 were paid, but later appointments were not; instead, she was required to work the time back or use flexitime. After a further appointment and an operation in April 2018, the tribunal found that the respondent had acted under a mistaken view of the legal position.

The tribunal held that the claims under sections 55 and 56 ERA 1996 were out of time. The latest antenatal appointment was on 3 April 2018, but the tribunal found the complaint presented on 30 November 2018 was well outside the three-month limit and that it was not shown to have been reasonably practicable to present it in time. Those claims were therefore time-barred and the tribunal had no jurisdiction to hear them.

On constructive dismissal, the tribunal accepted that the respondent had restricted when the claimant could attend antenatal appointments, had failed to pay her for later appointments, and had then handled a redundancy consultation in a way that meant the outcome was already predetermined if she did not accept a childcare role. It found that the claimant was not given the information she requested before the consultation, that this omission contributed to her decision to resign, and that the respondent’s conduct cumulatively amounted to a breach of the implied term of mutual trust and confidence. The tribunal therefore held that she had been constructively and unfairly dismissed.

The tribunal assessed compensation at a basic award of £400 and a compensatory award of £2,360 before deduction. It accepted loss of earnings, future loss to the hearing date, and £400 for loss of statutory rights, but applied a 60% Polkey deduction on the basis that there was a substantial chance a fair procedure would still have led to the same outcome. The final compensatory award was £944, making a total award of £1,344. The tribunal did not find contributory fault in relation to the deletion of files.

The claims under section 99 ERA 1996 and regulation 20 of the Maternity and Parental Leave Regulations 1999 were dismissed. Although the tribunal found the redundancy consultation was predetermined in the sense that the respondent had already decided that dismissal would follow if the claimant did not accept a childcare role, it did not find that the reason or principal reason for the dismissal was the claimant’s pregnancy, possible future pregnancy, or antenatal appointments. The tribunal found the respondent had genuinely decided to restructure and absorb the finance and administration work into the manager’s role.

The pregnancy discrimination claims under section 18 EqA 2010 were also dismissed as out of time, with no just and equitable extension. The remaining direct sex discrimination allegations under section 13 EqA 2010 failed because the tribunal found that the treatment complained of was not because of sex or pregnancy. It accepted that the redundancy process, the grievance handling, and the delayed payment of notice and holiday pay were not discriminatory, but arose from the restructuring decision and the dispute over deleted files. The claimant’s application for expenses was refused.