The Law

Submissions

  1. Ms Redman produced written submissions which she spoke to in outline. Mr Gunstone made oral submissions. We do not rehearse these submissions in detail here but confirm we considered them carefully in determining the issues before us.

The Law

 

  1. We note below the statutory provisions which are relevant to this

 

Section 18 Equality Act 2010 (“EqA”)

 

“Pregnancy and maternity discrimination: work cases

  • This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.

(2 )A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably —

  • because of the pregnancy, or
  • because of illness suffered by her as a result of
  • A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.
  • A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

(5 )For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be

 

 

regarded as occurring in that period (even if the implementation is not until after the end of that period).

  • The protected period, in relation to a woman’s pregnancy, begins when the pregnancy begins, and ends—
    • if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy;
    • if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.
  • Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as—
    • it is in the protected period in relation to her and is for a reason mentioned in paragraph (a) or (b) of subsection (2), or
    • it is for a reason mentioned in subsection (3) or (4).”

 

 

Section 136 Equality Act 2010 (“EqA”)

 

“Burden of proof

  • This section applies to any proceedings relating to a contravention of this
  • If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
  • But subsection (2) does not apply if A shows that A did not contravene the ”

 

 

Section 95 Employment Rights Act 1996 (“ERA”)

 

“Circumstances in which an employee is dismissed.

  • For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) F1. . . , only if)—
    • the contract under which he is employed is terminated by the employer (whether with or without notice),

 

 

[F2(b)he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or]

  • the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

 

 

Section 98 Employments Rights Act 1996 (“ERA”)

 

“General.

  • In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
    • the reason (or, if more than one, the principal reason) for the dismissal, and

(b )that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

  • A reason falls within this subsection if it—
    • relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
    • relates to the conduct of the employee,

[F1(ba)F2…………………………………………………………… ]

  • is that the employee was redundant, or
  • is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

[F3(2A)F2…………………………………………………………… ]

  • In subsection (2)(a)—
    • “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

 

 

  • “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

[F4(3A)F2…………………………………………………………… ]

  • [F5Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
    • depends on whether in the circumstances (including the size and

administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

  • shall be determined in accordance with equity and the substantial merits of the case”.

 

 

 

 

 

 

Section 99 Employments Rights Act 1996 (“ERA”)

 

“Leave for family reasons.

  • An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
    • the reason or principal reason for the dismissal is of a prescribed kind, or
    • the dismissal takes place in prescribed
  • In this section “ prescribed ” means prescribed by regulations made by the Secretary of State.
  • A reason or set of circumstances prescribed under this section must relate to— (a)pregnancy, childbirth or maternity,

[F2(aa)time off under section 57ZE,] [F3(ab)time off under section 57ZJ or 57ZL,]

 

 

  • ordinary, compulsory or additional maternity leave, [F4(ba)ordinary or additional adoption leave,] [F5(bb)shared parental leave,]
  • parental leave, [F6[F7(ca)[F8paternity leave],]] [F9(cb)parental bereavement leave,] or (d)time off under section 57A;

and it may also relate to redundancy or other factors.

  • A reason or set of circumstances prescribed under subsection (1) satisfies subsection (3)(c) or (d) if it relates to action which an employee—
    • takes,
    • agrees to take, or
    • refuses to take,

under or in respect of a collective or workforce agreement which deals with parental leave.”

 

 

  1. We were referred to a significant number of cases during submissions and refer to those cases which we consider to be relevant to our deliberations below.

 

 

Discussion and Conclusions

 

  1. We first consider whether Philippa Ratcliffe resigned or was dismissed by the Respondent. We find it rather odd that Philippa Ratcliffe pleads constructive unfair dismissal as an alternative to “ordinary” unfair dismissal as this seems to acknowledge that, contrary to her main argument, she may actually have resigned.

 

  1. Philippa Ratcliffe, in support of her argument that she did not resign, seems to rely on the principle of ambiguity in relation to the resignation and that the test to be applied is what a reasonable recipient would have understood in light of the particular circumstances known to the recipient when the notice was received (East Kent Hospitals University NHS Foundation Trust v Levy [2018] 6WLUK36). In that case an employee sent a letter seeking one months’ notice pay because she had received an offer of alternative employment; her resignation was accepted but she tried to retract the resignation when her offer of employment was withdrawn

 

 

which the employer refused. The EAT found the letter was ambiguous and looking at the context in which it was given decided that the employee had been dismissed.

 

  1. With respect to that argument, the surrounding circumstances in the case before us are completely different. Looking at the relevant part of the resignation letter (page 324) Philippa Ratcliffe says,

 

“Due to this treatment, I feel that I have no alternative but to terminate my employment at Ezytrac. However, I have to take into account my financial position and the problems which ending my employment will cause me. I have worked hard to build my career with Ezytrac and ending my employment may set back my future career aspirations on a long-term basis with many years of lost earnings. In order to avoid the need for litigation, I am willing to forgo my right to apply to an Employment Tribunal in connection with the sex discrimination I have been a victim of in return for payment of 12 month (sic) gross salary together with a mutually agreed reference.

 

Please let me know within 14 days whether you wish to take up my suggestion. If no agreement is possible, regrettably I will have to take my case to an Employment Tribunal”.

 

  1. This letter is poorly Philippa Ratcliffe said she took legal advice before sending it but we do not know nor, are we entitled to know, the precise advice given. It is headed “Without Prejudice as to Save Costs” which is not the usual heading for such a letter. Regardless of the extent of the advice received, we note, in particular, that Philippa Ratcliffe said she has no alternative but to terminate her employment with the Respondent and accepts that her financial position will be adversely affected by “Ending my employment”. She goes on to suggest that she will not pursue an Employment Tribunal claim if she is paid a years gross salary and given a reference and says that if no agreement is possible she will take the matter to an Employment Tribunal.

 

  1. We considered that the words used by Philippa Ratcliffe, after taking legal advice she says to the effect that her claim of pregnancy and maternity discrimination has good prospects of success, are unambiguous. She says that she has no alternative but to terminate her employment and if the Respondent does not agree to pay her a year’s salary and give a mutually agreed reference she wants to take her case to an Employment Tribunal. We struggle to see on what basis Philippa Ratcliffe can argue her Employment could continue after such a letter. The circumstances indicate a clear intention to resign with immediate effect and to present a claim to the Employment Tribunal if her financial demand is not met thus the Judgment of The Court of Appeal in Willoughby v CF Capital Plc [2012] ICR1038 is easily distinguished as the Respondent was left in no doubt that Philippa Ratcliffe intended to bring her employment to an end. We also note that in a text message to Ms Messam, Philippa Ratcliffe said she had written to the Respondent and that “…I can’t go back…” (page 327A).

 

  1. Having determined that Philippa Ratcliffe resigned, we must consider the reason for her

 

 

resignation. In light of section 95(1)(c) ERA following the decision of the Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 CA, we must decide:

 

  • Whether there was a fundamental breach of contract or an implied term on the part of the Respondent;

 

  • The Respondent’s breach caused Philippa Ratcliffe to resign; and

 

  • Philippa Ratcliffe did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

 

  1. If we understand Philippa Ratcliffe’s case correctly, she relies on there being a fundamental breach of the implied term of trust and confidence causing her to resign. At the time of her letter of resignation, she set out what she referred to as “some of the reasons” that persuaded her she had been unfairly treated. We have, of course, considered these matters in connection with Philippa Ratcliffe’s claim of pregnancy and maternity discrimination and concluded that Philippa Ratcliffe’s evidence in relation to them lack credibility or Some of her allegations are mere conjecture, for example, she says she thought a change in the Commissions Structure proposed by the Respondent would have adversely affect her whereas in actual fact her commission payable monthly would have increased by over £600. She has absolutely no basis whatsoever for arguing that Ms Messam took over her role or was given her job. Accordingly, given our findings of fact, we find there is no fundamental breach of any express or implied term of Philippa Ratcliffe’s contract of employment nor can she rely on the other matters which we discuss below.

 

  1. In considering the claims of maternity and/or pregnancy discrimination, we take into account sections 18 and 136 EqA and the decisions in Igen Ltd v Wong [2005] ICR93, Indigo Design Build and Management Ltd v Martinez UKEAT/0020/14/DM and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL1.

 

 

 

 

  1. Section 136 EqA was developed by the Court of Appeal in Igen Ltd which sets out a two stage process:

 

  • Firstly, Philippa Ratcliffe has to prove facts from which the Tribunal could infer the discrimination has taken place. This places a burden on Philippa Ratcliffe to establish a prima facie case of discrimination;

 

  • Only if such facts are made out to the Tribunals satisfaction on the balance of probabilities, is the second stage engaged by which the burden shifts to the Respondent to prove on the balance of probabilities that the treatment in question was in no sense whatsoever on the protected ground.

 

 

  1. As our findings of fact show, we do not consider Philippa Ratcliffe’s allegations to have any merit. Some of them, as highlighted above, lack credibility and others are simply unreliable. There is only one of the allegations which may at first blush indicate some less favourable treatment and this referred to at paragraph 33 of Philippa Ratcliffe’s witness statement where she accuses Ms Bevis of “from June 2021 onwards Carolyn… kept saying to me, “you are not as young as you were”, and “you are no spring chicken””. Firstly, this is potentially only an oblique reference to Philippa Ratcliffe’s pregnancy. Philippa Ratcliffe was 33 years old at the time which nowadays is not old to have a child. The fact that Ms Bevis freely admitted to saying “none of us are spring chickens anymore” reinforces our view of the reliability of the Respondent’s witness evidence. She said the comment was made during Philippa Ratcliffe’s pregnancy risk assessment and was made in a light-hearted and caring manner. Ms Bevis was not challenged on her evidence that she only made this comment once and we consider Philippa Ratcliffe’s allegation that she “kept on” on saying it from June 2021 onwards to be a gross exaggeration especially since she does not specify when or in what context further comments were made by Ms Bevis. Further, Philippa Ratcliffe herself told others, “I feel so old” as illustrated on page 272 in a conversation on 15 September 2021 with Mrs Alegre-Wood at 17pm.

 

  1. We have already commented and do no rehearse further here Philippa Ratcliffe’s allegations of being excluded from meetings and Ms Messam taking over her role. We cannot see how these allegations stand up to any scrutiny in light of clear documentary evidence to the contrary.

 

  1. We also take into account the context of the allegations made by Philippa Ratcliffe. She had a very close relationship with Mrs Alegre-Wood. She was treated quite staggeringly well by Mr and Mrs Alegre-Wood. Philippa Ratcliffe said she initially lived in an undesirable neighbourhood with her three children and needed to buy a house. She was given £3,000 towards the deposit on a house. This was not a loan but a gift from Mr and Mrs Alegre-Wood through the Respondent. The evidence throughout her pregnancy is of genuine sympathy and understanding from Mrs Alegre-Wood when Philippa Ratcliffe frequently had time off due to issues with her pregnancy and asked to work from home at a moments notice. Philippa Ratcliffe expressed on several occasions to Mrs Alegre-Wood that she was struggling. It was not less favourable treatment due to her pregnancy for Mrs Alegre-Wood to suggest she might want to postpone undertaking a fairly onerous FARLA course until after her maternity leave. This was genuine consideration by Mrs Alegre-Wood and was not followed up at all by Philippa Ratcliffe. Similarly, Philippa Ratcliffe made no complaint about the spring chicken comment made by Ms Bevis. Again, in directing that Philippa Ratcliffe should go home when she had had a midwife’s appointment and been told to consider commencing maternity leave early, it was entirely appropriate for the Respondent to direct her to go home. What Philippa Ratcliffe rather conveniently omits mentioning in relation to this episode is the fact that the direction to go home on the day was made on the understanding that Philippa Ratcliffe would see her Doctor the following day for further advice. There is no evidence before us that she saw her Doctor and, and if she did, she passed on no information about the consultation

 

 

or what was advised to the Respondent.

 

  1. We also found there is an element of conspiracy in what Philippa Ratcliffe alleged. Her text message to Ms Messam saying she had written to the Respondent and they would not be happy about it. This message at page 327A also adds weight to the finding that she had in fact resigned when she says, “… but I can’t go back and I would rather sort this out now than wait”.

 

  1. Following one of the principles discussed in Shamoon, we may also ask whether Philippa Ratcliffe’s treatment was of such a kind that a reasonable worker would consider it to amount to less favourable treatment. In our view, on the balance of probabilities, this is most unlikely.

 

  1. Accordingly, on the balance of probabilities, Philippa Ratcliffe does not establish a prima facie case of less favourable treatment. It follows, therefore, that her claim of discrimination on the grounds of pregnancy and maternity must fail as must any claim of automatically unfair dismissal under section 99 ERA.