Holden & Co LLP v Russell

An Employment Tribunal may clarify and determine a discrimination complaint which is fairly raised by the pleaded facts or has emerged during the hearing, provided the parties have had an effective opportunity to address it. It does not exceed its jurisdiction merely by identifying the legal character of such a complaint.

For Equality Act 2010 purposes, agreeing a return date is an essential part of exercising maternity-leave rights. Unfavourable treatment concerning that date may therefore fall within section 18(4). Pregnancy-related absence must not be used adversely in attendance scoring. Injury to feelings may flow from the discriminatory act even if the employee learns its discriminatory cause only later.

The claimant, a legal secretary, was dismissed during a redundancy exercise after maternity leave. The Employment Tribunal upheld her unfair-dismissal claim and two claims of pregnancy and maternity discrimination. Those claims concerned the employer's refusal to accept her notified maternity return date and its use of pregnancy-related sickness absence in attendance scoring.

The employer appealed only the discrimination findings and the associated compensation. It contended that the two complaints had not properly been before the Tribunal, that the return-date issue was outside section 18 of the Equality Act 2010, and that neither act had caused injury to feelings.

The central issues were whether the complaints were properly determined and whether the discriminatory acts could found compensation for injury to feelings.

1. Appeal dismissed unanimously. The Employment Tribunal was entitled to determine both discrimination complaints and its factual findings on injury to feelings were open to it.
2. The return-date complaint was sufficiently grounded in the ET1 narrative and was expressly identified when the Tribunal clarified the issues at the start of the hearing. The Tribunal had determined the employer's objection and the employer neither maintained a further objection nor sought an adjournment or further evidence. There was therefore no procedural unfairness or jurisdictional error.
3. The attendance-scoring complaint was also properly before the Tribunal. Although it had not initially been expressly identified as discrimination, it arose in the evidence and was addressed in closing submissions by both parties. This was unlike Chapman v Simon, 1994 IRLR 124, where a tribunal had found a different discriminatory act of its own motion.
4. A notified return date is a necessary and essential element of exercising ordinary or additional maternity leave. Unfavourable treatment concerning it consequently falls within section 18(4) of the Equality Act 2010. The Tribunal was entitled to find that the employer's incorrect insistence on a later date caused distress, anxiety and financial difficulty. The claimant's acceptance of the employer's proposed date did not prevent recovery.
5. The use of pregnancy-related illness in attendance scoring was unfavourable treatment within section 18(2). The claimant had been concerned and upset by her reduced score before learning at the hearing that pregnancy-related absence had caused it. Her loss flowed from the discriminatory marking itself; prior knowledge of its discriminatory reason was unnecessary.

• Employment Appeal Tribunal: Appeal dismissed; the Ashford Employment Tribunal's findings of pregnancy and maternity discrimination and its compensation award were upheld.
• Employment Tribunal, Ashford: Judgment and written reasons sent on 24 June 2013. The Tribunal upheld the claimant's unfair-dismissal claim, her claim concerning written reasons for dismissal, and the return-date and attendance-scoring discrimination claims.