Ms E Avdonina v Delin Capital Asset Management UK Ltd and Others: 2206956/2018
| Judgment Date | 27 April 2021 |
| Citation | 2206956/2018 |
| Published date | 11 May 2021 |
| Court | Employment Tribunal |
| Subject Matter | Sex Discrimination |
Case No: 2206956/2018 (V- CVP)
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EMPLOYMENT TRIBUNALS
Claimant Respondents
Ms E Avdonina
v
(1) Delin Capital Asset
Management UK Limited
(2) Mr I Linshits
(3) Delin Capital (UK)
Limited
Heard at: London Central
(Via Cloud Video Platform) On: 1, 2, 3, 4, 5, 8, 9, 10 March 2021
and 15 March 2021 (in
chambers)
Before: Employment Judge Joffe
Ms D Olulode
Ms J Grant
Representation
For the claimant: Mr S Brittenden, counsel
For the respondents: Ms E Misra, counsel
RESERVED JUDGMENT
1. The claimant was dismissed by the first respondent on 18 September 2018.
Case No: 2206956/2018 (V- CVP)
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2. The claim for unfair dismissal under sections 94 and 98(4) Employment Rights Act
1996 is upheld.
3. The discussions between the claimant and Mr McFaull on 18 September 2018 were
not inadmissible pursuant to s 111A Employment Rights Act 1996.
4. Had the claimant not been unfairly dismissed, her employment would have
continued for a further six months and there is a 25% chance it would have continued
thereafter.
5. The claimant’s claims of direct maternity / pregnancy discrimination under s 18
Equality Act 2010 are not upheld and are dismissed.
6. The claimant’s claims of direct sex discrimination under s 13 Equality Act 2010 are
not upheld and are dismissed.
7. The claimant’s claims of victimisation under s 27 Equality Act 2020 are not upheld
and are dismissed.
Claims and issues
1. The issues in the case had been agreed between the parties and are as set out
below. There were some infelicities in how they had been expressed but the issues
to be decided were clear to us.
Ordinary Unfair Dismissal
i) Whether the claimant was dismissed by the first respondent:
a. On 18 September 2018 (expressly as alleged in paragraph 35 of the Details of
Claim):
b. On 19 September 2018 (constructively by reference to the matters set out it
paragraph 36 of the Details of Claim);
c. On 25 September 2018 (expressly as set out in paragraphs 31 and 49 of the
Details of Claim).
ii) If the claimant was expressly dismissed. then whether the first respondent had a
potentially fair reason for doing so (namely conduct or capability).
iii) Whether, if the claimant was dismissed expressly, the dismissal was fair having
regard to sub-section 98(4) Employment Rights Act 1996 (‘ERA').
iv) If the claimant was constructively or expressly dismissed then whether the
claimant would have been dismissed in any event and, if so, when (‘Polkey’)
Protected Conversation
v) Whether or not the discussion between the Claimant and Mr McFaull on 18
September 2018 constitutes a protected conversation within the meaning and
ambit of section 111A ERA having regard to the ACAS Code of Practice on
Settlement Agreements (‘the Code').
Case No: 2206956/2018 (V- CVP)
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Maternity / Pregnancy Discrimination
vi) Whether the claimant was dismissed by the first respondent tor the purposes of
section 39(2)(c) Equality Act 2010 ('EqA') on 18, 19 or 25 September 2018.
vii) If so, whether the respondents or any of them knew that the claimant was
pregnant at the time of her putative dismissal.
viii) If so, whether the first respondent treated the claimant unfavourably during the
protected period, contrary to section 18 EqA, by dismissing her.
ix) Alternatively, whether in putatively dismissing the claimant the first respondent
treated her less favourably that it treated or would have treated a hypothetical
male comparator contrary to section 13 EqA because of her sex.
x) Whether the claimant can, as a matter of law, rely on section 13 EqA, having
regard to the effect of sub-section 18(7) EqA it being admitted that the claimant
was pregnant at the time of her putative dismissal ie within a protected period.
NB: The parties did not address us on the issue at x) and we therefore took it that the
point was not pursued
Victimisation
xi) Whether the claimant did a protected act for the purposes of sub-section 27(2)(d)
EqA having regard to her correspondence of 18, 20, 21, 25 and 28 September
2018.
xii) Whether if the first respondent dismissed the claimant on 26 September 2018 this
was on the ground that she had done a protected act.
xiii) Whether, post-termination of employment, the respondents refused to confer any
entitlement under an LTIP on the ground that she had done a protected act
Sex Discrimination
xiv) Whether, contrary to section 13 EqA, because of her sex, the respondents or
any of them treated the claimant less favourably in respect of the terms of a
proposed severance agreement for her dated 18 September 2018 than the actual
comparators set out in a confidential schedule
2. At the outset of the hearing, as a result of agreement between the parties that the
first respondent had been the claimant’s employer, we released the third respondent
from the proceedings, however, with the agreement of the parties we reinstated the
third respondent at the end of the hearing when it became apparent there might be
an issue as to any liability in respect of the issue at xiv). For the reasons which
appear in our conclusions it was not necessary for us to decide whether the third
respondent was in fact liable in respect of that issue.
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