Claimant v HES Estate Management Limited

The tribunal found that while Mr Derriman made unfavourable comparisons between the claimant (34) and her predecessor Ms Harvey (21), the comparison was not because of the claimant's age. The reference to age was peripheral to his main point about frustration with her output given her qualifications and experience. Ms Harvey was not an appropriate comparator as she was in materially different circumstances (unqualified, inexperienced, and received extensive support from her father who was a director). The tribunal found Mr Derriman would have made the same comment to any similarly qualified person performing below expectations, regardless of age.

The tribunal found the claimant established a prima facie case regarding the investigation and letter of concern issued while she was pregnant and working from Portugal. However, the respondent proved the treatment was not because of pregnancy. The directors were motivated by genuine anger that the claimant had worked from Portugal without approval (as they perceived it) and by complaints about her use of profanity. The tribunal inferred the directors were frustrated by her performance generally and were trying to avoid pregnancy discrimination, not perpetrate it. Requests for her return date and the absence of a work anniversary message were found not to constitute unfavourable treatment.

The tribunal found Mr Derriman's comments relating to the claimant's age compared to Ms Harvey (21) constituted unwanted conduct related to age. However, it did not have the purpose of violating her dignity — the reference to age was ancillary to expressing frustration about performance. It also did not have the proscribed effect: the comments were made months apart in response to workload requests, were not repeated after complaint, and while hurtful were insufficiently serious to create an intimidating, hostile, degrading, humiliating or offensive environment. It was not reasonable for the conduct to have that effect.

The tribunal accepted the claimant perceived an intimidating/hostile environment given the investigation, letter of concern, and other treatment occurring shortly after disclosing pregnancy. However, the tribunal found the respondent proved the conduct was not related to pregnancy. There were legitimate reasons for the investigation (working abroad without approval, use of profanity). The tribunal concluded it was the directors' frustration with the claimant's performance and perceived unreliability — not her pregnancy — that motivated their actions. It was not reasonable for the conduct to have the proscribed effect. The claim failed.