Employment Tribunal | Redmans Solicitors

In the latest of our series of posts on Employment Tribunal judgments released, we examine eight Employment Tribunal judgments released in the last week (between 1 January 2018 and 7 January 2018) that our solicitors found interesting

Mr M Widdows v Hollowdown Ltd: 3300392/2017 – in a rather unusual case, the Employment Tribunal held that a director who recruited Mr Widows did not have actual authority to do so, but had apparent authority to do so, and that there was therefore an employment relationship between Mr Widdows and his putative employer, Hollowdown Ltd. The Tribunal awarded Mr Widdows wages that he had not been paid (as he was not on Hollowdown’s payroll), damages for breach of contract, and a 25% uplift due to a failure to comply with the ACAS Code (Employment Tribunal judgment)
Mr K Oppong v DHL Services Ltd: 1302640/2016 – the Employment Tribunal held that Mr Oppong succeeded in part in his claims for direct race discrimination and victimisation (including allegations that he had been suspended from work because he had raised a grievance and that he had been dismissed for raising a grievance), although the Tribunal also held that Mr Oppong was not blameless and that he had been obstructive once suspended (Employment Tribunal judgment)
Miss K Carter v The Chief Constable of Gloucester Constabulary and others: 1400638/2017 – the Employment Tribunal awarded Ms Carter £14,930.30 as compensation for her successful claim for indirect sex discrimination and made certain recommendations (including that the relevant police forces must implement equality training) (Employment Tribunal remedy judgment)
Mr D Scanlon v Young Engineers Ltd (in liquidation): 1400746/2017 – the Employment Tribunal awarded Mr Scanlon £3,525 in respect of his claim for unlawful deduction from wages, rejecting his claim that he was owed £23,775 (Employment Tribunal judgment)
Ms P George v BUPA Care Homes (CFH Care) Ltd: 3200682/2016 – the Employment Tribunal held that Ms George failed in her ‘whistleblowing’ claim as, although it accepted that she had made protected disclosures, the Tribunal ruled that she had not been subjected to any detriments or dismissed because of the protected disclosures (Employment Tribunal judgment)
Ms H Haines v Rainbow Theatre Productions: 1400362/2017 – the Employment Tribunal held that a female actor had been sexually harassed on a number of occasions by a fellow actor in Rainbow Theatre’s touring production, and that such acts had been during the course of her employment with Rainbow Theatre (Employment Tribunal liability judgment) (Employment Tribunal remedy judgment)
Mr W Dean v John Reid & Sons (Strucsteel) Ltd: 1400458/2017 – the Employment Tribunal held that Mr Dean had been unfairly dismissed, after he was dismissed on allegations that he had breached confidentiality by providing a copy of his CV to recruitment agencies. The Employment Tribunal held that there had been a failure to carry out a reasonable investigation and that the company did not have a genuine and reasonable belief that Mr Dean had carried out an act of misconduct (Employment Tribunal judgment)
Ms C Bickerstaff v The Royal British Legion: 1401026/2016 and 1400719/2017 – the Employment Tribunal held that Ms Bickerstaff had been subjected to various detriments (including exclusion from work, being barred from attending work, and being prevented from attending the office) as a result of a protected disclosure – she therefore succeeded in her ‘whistleblowing’ claim (Employment Tribunal judgment)

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Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk.

In the case of Hale v Dentons UKMEA Legal Services ET/2200450/2017 the Employment Tribunal held that Mrs Hale had been selected for redundancy because she was on maternity leave and that dismissing her would therefore cause the least disruption to her employer, an international law firm.

The facts in Hale v Dentons UKMEA Legal Services

Mrs Hale worked for Dentons UKMEA LLP (“Dentons”), a well-known large international law firm, from 8 December 2014 as a Recruitment Manager. She was initially employed on a fixed-term contract but her position was made permanent on 1 July 2015. The recruitment team was headed by Mrs Rowe at the relevant times.

Mrs Hale performed well in the course of her employment with Dentons, although there were a number of minor issues that arose (for example, a complaint from a recruitment agency and difficulties in communicating with Dentons’ construction team).

In February 3016 Mrs Hale informed Dentons that she was pregnant and that her baby was due in August.

Mrs Hale exceeded performance targets for the 2015/16 year and she was told by Mrs Rowe in May 2016 that the partners in the firm were highly supportive of her and felt that she was doing an excellent job.

Mrs Hale went on maternity leave on 24 July 2016. Over the course of 2016 the amount of work that Dentons was doing reduced – the managing partner of Dentons reduced the number of approved vacancies that it was recruiting for in November 2016, and it was also decided to reduce the number of employees in the human resources team. On 14 December 2016 Ms Peacock, Human Resources Director, met with the human resources leadership team and decided to reduce the headcount in the recruitment team. Mrs Hale was placed in a redundancy pool for selection along with two other ‘generalists’ in the recruitment team: Natalie Bush and Laura Cooper.

On 21 December 2016 there was a meeting of the human resources leadership team to consider who was to be made redundant. The redundancy selection criteria were applied to the employees in the pool over a period of 45 to 60 minutes, with each employee being discussed separately. Mrs Hale was selected for redundancy. No notes were made of this meeting.

On 4 January 2017 Mrs Hale met with Mrs Rowe at Dentons’ London office. In this meeting it was discussed that there would be a need to make redundancies in the recruitment team and it had been decided that Mrs Hale would provisionally be selected for redundancy. She was told that this was the beginning of the process and that a ‘first consultation meeting’ would take place on 8 January 2017. Mrs Hale was surprised by this and asserted that she was the most productive member of the team. There was a further meeting on 6 January 2017.

Mrs Hale subsequently challenged the redundancy scores that she had been provided with, asserting that she couldn’t believe that she had only been given a score of ‘satisfactory’ in respect of the work she had carried out.

On 26 January 2017 Dentons wrote to Mrs Hale to inform her that her employment was to be terminated by reason of redundancy. Mrs Hale appealed against the termination of her employment. In this appeal she complained, among other things, that she believed she had been made redundant because of her decision to go on maternity leave. Mrs Hale’s appeal was rejected.

Mrs Hale subsequently made claims in the Employment Tribunal of pregnancy and maternity discrimination (section 18 Equality Act 2010), unfair dismissal (section 98 Employment Rights Act 1996), and automatically unfair dismissal (section 103 Employment Rights Act 1996).

The decision of the Employment Tribunal in Hale v Dentons UKMEA Legal Services

The Employment Tribunal found in Mrs Hale’s favour in respect of her claims for unfair dismissal, automatically unfair dismissal, direct sex discrimination, and pregnancy and maternity discrimination.

Automatically unfair dismissal

The Employment Tribunal held that there were sufficient facts to infer that pregnancy and maternity discrimination may have taken place: 1) she was coincidentally dismissed upon her return from maternity leave; 2) the Tribunal took the view that there was not a fair and genuine selection process in which Mrs Hale was genuinely rated less highly than her colleagues; 3) that there was a failure to take notes of the meetings, and that there was the lack of process that one would normally expect from such redundancy exercises. The Tribunal decided that, on the balance of probabilities, Mrs Rowe and Ms Barnes made the conscious decision that the easiest option would be to make Mrs Hale redundant as she was away on maternity leave and this would cause the least disruption.

Unfair dismissal

The Tribunal found that Mrs Hale had been unfairly dismissed for the following reasons:

There was no consultation with Mrs Hale or her colleagues prior to the decision being made to make redundancies or on redundancy selection criteria
Inappropriate selection criteria were adopted in that they were entirely subjective
There was a lack of clear understanding of what the selection criteria were and how they were to be scored
The scoring was not applied fairly
The errors and failing were not corrected on appeal, with no rigorous investigation into the suitability of the criteria or scoring

Pregnancy and maternity discrimination

The Tribunal found that the following constituted unfavourable treatment because of Mrs Hale’s pregnancy or maternity leave:

A failure to consult regarding redundancy selection criteria and weightings prior to the redundancy selection process being carried out on 23 December 2016;
Pre-selection of Mrs Hale for dismissal and subsequently dismissing her purportedly for the reason of redundancy; and
That Mrs Hale’s challenge to the selection criteria and scores given to her was not taken seriously

The Tribunal therefore found that Mrs Hale’s dismissal constituted an act of pregnancy and maternity discrimination, and that she had also been subjected to detriments because of this protected characteristic.

The Tribunal ordered that a remedies hearing be held at a later date in order to determine what remedies were appropriate in the case.

Our solicitors’ view on Hale v Dentons UKMEA Legal Services

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that they carry out fair and transparent redundancy exercises and, further, that all relevant evidence of such is recorded and kept properly – this will not only help to ensure that a fair process is carried out but, equally, will assist the employer in defending any Employment Tribunal claim that may be made at a later date.”

The judgment of the Employment Tribunal can be found here

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Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk.

In the case of Haines v Rainbow Theatre Productions ET/1400362/2017 the Employment Tribunal held that a female actor had been sexually harassed by a colleague and that her employer was vicariously liable for such. The Tribunal awarded her a sum of over £10,000 as compensation.

The facts in Haines v Rainbow Theatre Productions

Rainbow Theatre Tours (“Rainbow”) is a touring theatre company. Ms Haines is an actor and was engaged by Rainbow for its autumn tour in 2016. Also working for Rainbow for the autumn tour were Mr Lewandowski, Ms Turnbull, and Mr Payne. Rainbow’s registered company director was Nick Young, and Mr Young’s wife was the company secretary.

Ms Haines commenced employment with Rainbow on 30 August 2016, with her engagement expiring on 9 December 2016. Ms Haines became friends with Mr Lewandowski and Ms Turnbull, and conversations that took place between them were often of an overtly sexual nature. For example, Mr Lewandowski would ask Ms Haines whether she wanted to sleep with him, whether she wanted to have sex, and whether she wanted a three-some with himself and Ms Turnbull.

Ms Haines alleged that the following comments were made and conduct undertaken during the course of her engagement with Rainbow (including, but not limited to):

That Mr Lewandowski generally made sexual advances
That Mr Lewandowski asked: “do you want to sleep with me?”
That Mr Lewandowski asked: “do you want to have sex?”
That Mr Lewandowski asked: “do you want a threesome with me and Natalie [Turnbull]?”
That Mr Lewandowski called her a slut via Whatsapp
That Mr Panye said to her on 20 September 2016: “your tits aren’t as big as the last actress” and made comments about her breasts on a daily basis
That Mr Lewandowski pointed his penis at her at the end of September 2016
That Mr Lewandowski discussed sex with Ms Turnbull in front of Ms Haines
That Mr Payne stated that “I reckon it Helen’s vagina making those noises”
That on 5 November 2016 a photo was placed on Facebook showing a sexually explicit act

Ms Haines resigned from the troupe on 5 November 2016 after discovering the sexually explicit photograph on Facebook. She subsequently submitted a grievance on 5 November 2017 regarding the way in which she had been treated, but she was not contacted regarding the scheduling of a grievance hearing until 6 January 2017.

The decision of the Employment Tribunal in Haines v Rainbow Theatre Productions

The Tribunal found that the following conduct had occurred:

That Mr Lewandowski had made sexual advances towards her (and that this constituted direct sex discrimination);
That Mr Lewandowski had said “do you want to sleep with me?”; “do you want to have sex?”; and “do you want a threesome with me and Natalie?” (and that this constituted direct sex discrimination);
That Mr Lewandowski sent Ms Haines a Whatsapp calling her a slut (and that this constituted direct sex discrimination);
That Mr Payne told Ms Haines “your tits aren’t as big as the last actress” and made comments about her breasts (and that this constituted sex-related harassment);
That Mr Lewandowski had pointed his penis at her (and that this constituted sexual harassment);
That Mr Lewandowski used the word “cunt” in Ms Haines’ presence (and that this constituted sexual harassment);
That Mr Payne asked Ms Haines “you’re a lesbian, aren’t you?”
That Mr Payne stated that “I reckon it Helen’s vagina making those noises”
That a photograph was posted on Facebook showing an ejaculating penis near Ms Haines’ mouth

The Tribunal also found that the above-detailed conduct occurred in the course of Ms Haines’ employment.

The Employment Tribunal awarded Ms Haines the following sums:

Lost earnings: £1,350 (with interest of £57.30)
Injury to feelings: £8,300 (with interest of £816.81)

Our solicitors’ view on Haines v Rainbow Theatre Productions

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that any complaints of sexual harassment are dealt with promptly, thoroughly, and fairly, and that employees are trained properly in equality and diversity matters. A failure to ensure that such a grievance process is followed, and a failure to ensure proper training in equality and diversity, can potentially expose employers to vicarious liability for its employees’ discriminatory or harassing conduct.”

The judgments of the Employment Tribunal can be found here:

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In the case of Dean v John Reid & Sons (Strucsteel) Ltd ET/1400458/2017 the Employment Tribunal held

The facts in Dean v John Reid & Sons (Strucsteel) Ltd

John Reid & Sons (Strucsteel) Ltd (“John Reid”) is a large family-owned company which is a specialist contractor in the design, sale and construction of steel-framed buildings.

Mr Dean was a project manager. He commenced working for the company in 2014 and performed well, scoring 88% in his last appraisal.

In 2016 Mr Dean, although happy with his job, placed his CV with a company called “CV Library”. He was not actively seeking a job but thought that his career progression would be assisted by doing so. CVs are stored on CV Library on the basis that they are shown to subscribers but may not be released to the employer of a candidate (or to anyone else) without the candidate’s express permission.

At approximately the same time John Reid was looking to recruit more people to fulfil the role occupied by Mr Dean, and recruited a headhunter to help them do so. The headhunter had a subscription to CV Library and came across Mr Dean’s CV.

The headhunter disclosed to Simon Boyd (Managing Director at John Reid) that Mr Dean’s CV was on CV Library (violating the terms of confidentiality) and on 18 October 2016 Mr Boyd summoned Mr Dean to his office to explain this issue. Mr Boyd subsequently suspended Mr Dean on the same day on the basis that Mr Dean had breached confidentiality by disclosing on his CV that John Reid worked in certain countries. Mr Boyd subsequently commenced the company’s disciplinary procedure and convened a disciplinary hearing for 24 October 2016.

John Reid investigated the allegations against Mr Dean in the course of one day, with these investigations consisting of Mr Boyd asking Human Resources to investigate and report. The two disciplinary allegations that Mr Boyd asked to be investigated were as follows: firstly, “that Wayne Dean has been actively seeking employment elsewhere whilst our in our by uploading his personal VB to an active job searching website” and, secondly, “Wayne Dean has been in breach of the company’s confidentiality arrangements by disclosing sensitive market areas where we currently work and other areas we are actively developing future markets.”

The conclusion of the investigation was that there was a case to answer on Mr Dean’s behalf, as it was found that CV Library only took CVs from people who were actively seeking employment and that the disclosure of John Reid’s activities on his CV conflicted with his contract of employment and stand-alone confidentiality agreement.

Mr Cook subsequently took the decision to dismiss Mr Dean on allegations that he had breached confidentiality, and found that this allegation constituted gross misconduct. Mr Dean appealed but his appeal was dismissed.

The decision of the Employment Tribunal in Dean v John Reid & Sons (Strucsteel) Ltd

The Employment Tribunal upheld Mr Dean’s claim for unfair dismissal, holding that there had been a failure to carry out a reasonable investigation and that Mr Boyd did not have a genuine and reasonable belief in the allegations.

Our solicitors’ view on Dean v John Reid & Sons (Strucsteel) Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that disciplinary processes are carried out fairly, with a reasonable investigation undertaken and, on the back of that investigation, a fair and reasonable decision made to dismiss. A failure to do so can potentially mean that a former employee may succeed with a claim for unfair dismissal (should they have sufficient qualifying service to make such a claim.”

The judgments of the Employment Tribunal can be found here.

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In the latest of our series of posts on Employment Tribunal judgments released, we examine eight Employment Tribunal judgments released in the last week (between 8 January 2018 and 14 January 2018) that our solicitors found interesting:

Mr G Yildiz v British Broadcasting Corporation: 2206294/2016 and 2200913/2017 – the Employment Tribunal held that the Respondent (the BBC) had not discriminated against the Claimant or subjected him to any detriment because he had made protected disclosures, but held that he had been constructively dismissed (Employment Tribunal judgment)
Mr S George v Stage Electrics Partnership Ltd: 1400513/2017 – the Employment Tribunal held that the Respondent had failed to carry out the necessary investigations to determine whether the Claimant would properly recover from a back injury before dismissing him (Employment Tribunal judgment)
Mr Charles Christopher Barnes v Robinsons of Worcester Aggregates Ltd: 1301425/2017 – the Employment Tribunal held that the Claimant had been unfairly dismissed and discriminated against by the Respondent when he was dismissed on allegations that he had brought the Respondent into disrepute (Employment Tribunal judgment)
Mr S Cambridge and others v Unipart Automotive Ltd (In Administration) and Secretary of State for Business Energy and Industrial Strategy: 1305629/2014 – the Employment Tribunal held that it was unable to make a determination as to whether the Respondents’ defence had any prospects of success as none of the parties attended and no evidence was placed before it (Employment Tribunal judgment)
Mrs L Wilcox v Nationwide Diamond Contracts Ltd: 1800972/2017 – the Employment Tribunal held that the Claimant had been unfairly dismissed by the Respondent and that her contract of employment was not void due to illegality (Employment Tribunal judgment)
Miss SL West v Enhance Life Ltd: 2404973/2017 – the Employment Tribunal held that the Claimant had been unfairly dismissed and discriminated against when she was dismissed for the reason of redundancy, awarding her over £6,000 (Employment Tribunal judgment)
Ms S Cummings v Southern Health NHS Trust: 1400037/2017 – the Employment Tribunal held that the Respondent had not discriminated against the Claimant or victimised her when it failed to uphold her grievance (Employment Tribunal judgment)
Mrs C Oram v Gloucestershire Care Services NHS Trust: 1400991/2017 – the Employment Tribunal held that the Claimant had been unfairly and wrongfully dismissed when she was dismissed from the Respondent on allegations that she had defrauded it (Employment Tribunal judgment)
Ms C Bickerstaff v The Royal British Legion: 1401026/2016 and 1400719/2017 – the Employment Tribunal held the Claimant’s ‘whistleblowing’ claim and held that she had been constructively dismissed. The Tribunal also awarded damages for personal injury (Employment Tribunal judgment)
Mr W Dean v John Reid & Sons (Strucsteel) Ltd: 1400458/2017 – the Employment Tribunal held that the Claimant’s claim for unfair dismissal succeeded after he had been dismissed on allegations of breaching confidentiality (Employment Tribunal judgment)

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In the case of Barnes v Robinsons of Worcester Aggregates Ltd 1301295/2017 the Employment Tribunal held that Mr Barnes had been unfairly dismissed and subjected to race discrimination when he was dismissed on allegations that he had driven dangerously.

The facts in Barnes v Robinsons of Worcester Aggregates Ltd

Mr Barnes, who is black Afro-Caribbean, commenced employment with Semex UK on 3 August 2014 and his employment transferred to Robinsons of Worcester Aggregates Ltd (“WAL”) as a lorry driver on 1 August 2013.

On 6 December 2016 Mr Barnes was delivering aggregates to Semex, Rugby – a run which he made every day, several times a day. There was an accident on this day, with a car driving into the side of Mr Barnes’ lorry. A video camera recorded Mr Barnes’ line of sight but did not capture the accident. The Semex depot was only a short distance away and Mr Barnes drove in, with a confrontation then ensuing between Mr Barnes and the driver of the other car. The foreman of the depot inspected the third-party vehicle and noted some damage, but he did not take a statement from the other driver as to what had occurred. He did, however, take a statement from Mr Barnes.

An investigation occurred into the accident, with Mr Robinson forming a mistaken view that Mr Barnes was aware of the presence of the other car before he started his manoeuvres prior to the accident occurring – this mistake was based on a mis-interpretation of Mr Barnes’ statement. Mrs Bellerby, the member of Human Resources responsible for advising on the investigation, was aware that Mr Robinson had a strong view that Mr Barnes was culpable for the accident. No written report was produced of the investigation and Mr Barnes was never asked to clarify ambiguities in his statement.

A disciplinary hearing took place on 3 January 2017 which Mr Aldridge, Mrs Bellerby, Mr Barnes, and Mr Ross (Mr Barnes’ trade union representative) attended. However, Mr Aldridge was too nervous to undertake the hearing and Mrs Bellerby in fact undertook it. The notes of the hearing were brief, given that the hearing was just over two hours in length. Mrs Bellerby made a decision at the end of the hearing that Mr Barnes should be dismissed for gross misconduct – this was based on two issues: 1) that she found that Mr Ross had admitted that Mr Barnes had gone through a red light (whereas in fact he had not admitted such); and 2) that Mr Barnes had admitted in his original statement that he was responsible for the crash (this, again, was based on a misinterpretation of Mr Barnes’ statement). During the meeting there was an adjournment, in which Mrs Bellerby called Mr Robinson (she stated that she discussed the case with him but did not remember specifics).

An appeal was then submitted by Mr Barnes on 10 January 2017, with Mr Barnes complaining that his dismissal was discriminatory and harsh. An appeal hearing was held and the appeal was rejected by WAL.

The decision of the Employment Tribunal in Barnes v Robinsons of Worcester Aggregates Ltd

The Employment Tribunal upheld Mr Barnes’ claims for unfair dismissal and direct race discrimination.

Unfair dismissal

The Tribunal found that the dismissal was unfair for the following reasons:

A wholly inadequate investigation was undertaken;
There were no grounds for believing that Mr Barnes was guilty of aggressive or dangerous driving;
No reasonable employer would have rejected Mr Barnes’ explanation that he had checked his mirror, signalled, and established it was safe to move before he began his manoeuvre; and that no reasonable employer would have ignored the fact that at the time of the disciplinary and appeal hearings the third party’s insurers were admitting liability for the accident

Direct race discrimination

The Tribunal upheld Mr Barnes’ claims for direct race discrimination on the following grounds:

Mr Barnes was the only black person employed by WAL – all of the other drivers were white, though not necessarily white British;
That he had been dismissed by WAL after the accident; and
That white lorry drivers (Mr Barnes and Mr Misca) and were not dismissed in circumstances where there had been similar accidents

The Tribunal found that there were sufficient facts from which it could infer that discrimination could have been a reason for Mr Barnes’ dismissal, and found that there was no reasonable alternative explanation for his dismissal.

Our solicitors’ view on Barnes v Robinsons of Worcester Aggregates Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must take care to ensure that disciplinary processes are followed properly and fairly, as a failure to do so (as in this case) may not only render a dismissal unfair but discriminatory.”

The judgment of the Employment Tribunal can be found here.

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In the case of Ginger v Department for Work and Pensions 3401940/2015 the Employment Tribunal held that the Department for Work and Pensions (“DWP”) had discriminated against a female employee when a colleague asked her whether she could cope with a second child and when she was refused leave to take further IVF treatment.

The facts in Ginger v Department for Work and Pensions

Mrs Ginger commenced her employment with the Department for Work and Pensions on 19 July 2009; she was at all times employed as a Work Coach at Luton Job Centre.

In 2011 she began a course of IVF treatment and gave birth to a son. In 2013 she began a further course of IVF treatment and in June 2014 she had a three-day absence from work for pregnancy-related/childbirth complications. In July 2014 she began a further course of IVF treatment and informed her then-manager, Mr Mills, that she may need time off at short notice for IVF treatment. On or about 29 September 2014 Mrs Ginger suffer a miscarriage and she was therefore absent from work until 14 January 2015.

On 23 October 2014 Mrs Ginger received a formal attendance review meeting to be held on 18 November 2014 in order to discuss what the DWP could do to held her return to work.

On 23 December 2014 a further meeting was held at the Luton Job Centre to discuss Mrs Ginger’s period of time off work sick. At this meeting Mrs Ginger stated that her doctor was concerned about her “blood levels”.

On 15 January 2015 Mrs Ginger attended a return to work interview with Mr Mills. Mrs Ginger confirmed that she had been absent from work after suffering two miscarriages, and that she was undergoing counselling due to her miscarriage. Mrs Ginger alleged that at this meeting Mr Mills stated to her “in order to have a miscarriage your pregnancy must be confirmed”.

Mrs Ginger also alleged that the following conduct occurred:

27 January 2015: Mr Mills refused to allow her further attendance management review meetings to be conducted by a female manager;
27 January 2015: Mr Mills issued her with a written warning for her absence;
9 April 2015: Mr Mills asked her if she could cope with a second child and whether it was a good idea to have further IVF treatment;
That her was given a “box marking” of 3 as part of her annual review process;
11 May 2015: Mr Mills said to her that “miscarriage is not bereavement”;
15 May 2015: she was refused leave on 18 and 19 May 2015 to attend for further IVF treatment
That her email query of 18 May 2015 as to the reason for refusal of leave on 15th May was unanswered by Mr Mills

Mrs Ginger subsequently made a claim for pregnancy discrimination in the Employment Tribunal.

The decision of the Employment Tribunal in Ginger v Department for Work and Pensions

The Employment Tribunal upheld Mrs Ginger’s claims as follows:

9 April 2015: Mr Mills asked her if she could cope with a second child and whether it was a good idea to have further IVF treatment – the Tribunal found that this conduct amounted to direct sex discrimination, as the Tribunal held that Mr Mills would not have spoken to a man in this manner; and
15 May 2015: she was refused leave on 18 and 19 May 2015 to attend for further IVF treatment – the Tribunal found that this conduct amounted to direct sex discrimination, as the Tribunal held that Mr Mills would not have spoken to a man in this manner

The Tribunal awarded Mrs Ginger the following sums as compensation for her claims:

£17,500 as injury to feelings (with interest thereon of £3,394.52); and
£2,919.20 as financial losses (with interest thereon of £573.92)

Our solicitors’ view on Ginger v Department for Work and Pensions

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must take care to deal with female employees’ requests for time off work for IVF treatment, as well as any pregnancy-related absences, in a fair and reasonable manner, and must ensure that they treat female employees in a manner no less favourable than it would treat male employees. A failure to ensure such equality of treatment may lead to a successful discrimination claim, as it did here.”

The judgment of the Employment Tribunal can be found here.

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In the case of Doyle v Associated Training Solutions Ltd 2405460/2016 the Employment Tribunal held that Ms Doyle had been automatically unfairly dismissed and discriminated against when she was dismissed by her employer because she was pregnant.

The facts in Doyle v Associated Training Solutions Ltd

Ms Doyle commenced employment with Associated Training Solutions Ltd (“ATS”), a company which provides training for apprentices in the hairdressing industry, on 4 November 2014. Stephen Harrison was a director of ATS at all material times and Andrew Harrison was Business Director from late 2014.

In or about May 2016 Ms Doyle discovered that she was pregnant. She told a friend and colleague, but did not wish to disclose her condition to anyone else at work until after her 12-week scan.

On 14 June 2016 Ms Doyle disclosed to Mr Fairbrother that she was pregnant, but also asked him to keep this to himself as she was not ready to tell her colleagues yet (as she was only 7.5 weeks into her pregnancy).

On 5 July 2016 Ms Doyle discovered from Ms Gudgeon that Mr Fairbrother had told the Head of Operations (Yvonne Ellis) that she was pregnant. She also discovered that Ms Ellis had, on 4 July 2016, told Ms Gudgeon that she was not to be offered a work-based placement because of “the situation” (but Ms Gudgeon would be offered such). Ms Doyle subsequently discovered on 13 July 2016 that Mr Fairbrother had told other colleagues about her pregnancy.

Upon her return to work from a period of holiday Ms Doyle became concerned that Mr Fairbrother had made comments that implied that Ms Doyle should only take a short period of maternity leave, and that her impending maternity leave would be an issue for ATS.

On 22 September 2016 Ms Doyle had a discussion with a colleague, Luke Shaw, at lunch time in the staff room. In this discussion Mr Shaw told Ms Doyle that one of the students that he was responsible for (“DH”) had asked for more time to complete his course as he had recently seen the dead body of a 16-year-old boy who had committed suicide. Ms Doyle did not teach DH but told Mr Shaw that it was her opinion that DH should be given more time to complete the course, but further consideration would be needed.

On 29 September 2016 Mr Shaw told DH of the conversation that he had had with Ms Doyle, and stated to DH that Ms Doyle had implied that DH was weak for taking two weeks off from school after the incident, and that Ms Doyle had suggested that he was “milking it for paid time off work”. DH subsequently complained about this conversation and Mr Fairbrother questioned Mr Shaw about the incident. Mr Shaw stated that Ms Doyle had said that DH was “milking the system”, everyone had seen a dead body, and that DH was weak and should “man up”. Mr Shaw acknowledged that his own conduct in passing these comments on to DH was unprofessional.

On 4 October 2016 Mr Fairbrother suspended Ms Doyle from work based on the grievance that DH had raised, and she was told that a formal investigation would take place. No details of the allegations were given. Mr Shaw was not suspended from work or told to keep away from work.

On 6 October 2016 Ms Doyle raised a complaint regarding the manner in which she had been treated, suggesting that her suspension from work may be an act of discrimination.

An investigation was carried out and a grievance hearing (regarding DH’s grievance) was carried out on 7 October 2016. Ms Doyle was not invited to this hearing, nor given the chance to raise any representations regarding it, but a decision was made by Mr Fairbrother that Ms Doyle should be dismissed.

On 11 October 2016 Mr Fairbrother informed Mr Shaw that his services would no longer be required, and on 12 October 2016 he wrote to Ms Doyle to inform her that she was being dismissed for gross misconduct as a result of DH’s complaint. Ms Doyle subsequently appealed her dismissal but her appeal was rejected without an appeal hearing being held.

ATS did not carry out any risk assessment, or offer to carry out such, once it was made aware that she was pregnant.

The decision of the Employment Tribunal in Doyle v Associated Training Solutions Ltd

The Employment Tribunal held that the reason, or principal reason, for Ms Doyle’s dismissal was her pregnancy for the following reasons (among others):

Mr Fairbrother had made comments about Ms Doyle needing to return to work early from her period of maternity leave;
That Mr Fairbrother and Mr Harrison believed that Ms Doyle should not be paid statutory maternity pay after her dismissal, and the Tribunal inferred from this that ATS’s thought process was that they would save on maternity pay if they dismissed Ms Doyle
The difference in treatment between Mr Shaw and Ms Doyle – he was not suspended at all, there was no mention of his dismissal being because of misconduct on his part, and he was never told that he had engaged in misconduct
Differences in ATS’s defence as to what the reason for Ms Doyle’s dismissal was, and the evidence that Mr Fairbrother gave to the Tribunal as to the reasons for Ms Doyle’s dismissal

The Tribunal therefore found that Ms Doyle’s claims that her dismissal was automatically unfair (under section 99 Employment Rights Act 1996) and discriminatory (under section 18 Equality Act 2010) therefore succeeded. The Tribunal also held that Ms Doyle’s dismissal was wrongful.

The Tribunal also held that the following conduct was also discriminatory:

Mr Fairbrother’s comments when Ms Doyle had disclosed her pregnancy
Ms Doyle not being allowed to carry out work-based placements

The Tribunal ordered that a remedy hearing be held in order to determine compensation (unless the parties could agreed settlement terms).

Our solicitors’ view on Doyle v Associated Training Solutions Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that disciplinaries in the workplace are carried out fairly, promptly, and thoroughly, and that employees are given the opportunity to contest the allegations put to them – if the employer fails to carry out these basic steps then this potentially opens up the employer to claims for unfair dismissal, discrimination, and automatic unfair dismissal (as it did in this case).”

The judgment of the Employment Tribunal can be found here.

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In the case of Onigbanjo v London Borough of Croydon 2301468/2016 the Employment Tribunal held that the London Borough of Croydon had failed to make reasonable adjustments for Ms Onigbanjo (in respect of implementing Access to Work recommendations) and had subjected her to pregnancy discrimination (in that they had failed to carry out a pregnancy-specific risk assessment).

The facts in Onigbanjo v London Borough of Croydon

Ms Onigbanjo commenced employment with the London Borough of Croydon (“LBC”) on or about 14 October 2015 as a Newly Qualified Social Worker (“NQSW”). LBC were aware from the start of Ms Onigbanjo’s employment that she suffered from fybromyalgia.

A formal Access to Work workplace assessment took place on 13 Janaury 2016 and a report was prepared dated 14 January 2016. This report referred to “chronic fibromyalgia”, set out a number of the symptoms that Ms Onigbanjo suffered from, and made a number of recommendations to assist Ms Onigbanjo in the workplace. On 20 January 2016 Ms Onigbanjo provided a copy of the report to Ms Tomlinson ([POSITION]) and Ms Tomlinson agreed the next day to provide whatever equipment Ms Onigbanjo needed according to the assessment.

On 20 January 216 Ms Onigbanjo told Ms Tomlinson verbally that she was pregnant. She told Ms Morris, her line manager on 1 February 2016. An occupational health assessment then took place.

On 5 April 2016 there was a meeting between Ms Ongibanjo, Ms Morris, and Ms Tomlinson. In this meeting it was discussed that there was a need to formally assess Ms Ognibanjo’s cases and her work more generally, and that a formal risk assessment would have to be undertaken regarding Ms Ognibanjo’s pregnancy. On 11 April 2016 Ms Ognibanjo and Ms Morris met, and Ms Ognibanjo informed her that she was concerned about a child that she was responsible for “due to his unpredictable violent outburst that put her and her unborn at risk”.

On 18 April 2016 Ms Ognibanjo submitted a formal written grievance complaining, among other things, that the recommendations made in the Access to Work report three months earlier had not been implemented and, further, that a pregnancy-specific risk assessment had not been carried out.

There were significant delays in obtaining the equipment relevant to the Access to Work report, and pieces of the equipment had not arrived by the time that Ms Ognibanjo attended work for a full workstation assessment on 7 June 2016. She again complained on that day that the relevant equipment had not yet arrived and that a pregnancy-specific risk assessment had not yet taken place.

On 13 June 2016 Ms Morris completed a generic risk assessment form. This was not specific to Ms Ognibanjo’s pregnancy and on 16 June 2016 Ms Ognibanjo suggested a number of amendments to it, which were accepted by Ms Morris.

Ms Ognibanjo’s maternity leave commenced in July 2016, by which time all of the equipment relevant to the Access to Work report had still not arrived.

Ms Ognibanjo subsequently made claims under section 20 (failure to make reasonable adjustments) and section 18 (pregnancy and maternity discrimination) of the Equality Act 2010.

The decision of the Employment Tribunal in Onigbanjo v London Borough of Croydon

The Tribunal upheld Ms Ognibanjo’s claims in part.

Failure to make reasonable adjustments (section 20 Equality Act 2010)

Ms Ognibanjo put forward six allegations of failure to make reasonable adjustments, as follows:

A failure to implement recommendations made in an Access to Work report by March 2016;
A failure to refer her to Occupational Health promptly for an assessment;
A failure to carry out a risk assessment;
Agreed and document flexible/altered working hours should have been agreed;
A designated working station should have been provided; and
Her caseload should have been adjusted to manage long distance travelling and long working hours

The Tribunal upheld Ms Ognibanjo’s claim in respect of the failure to implement the recommendations made in the Access to Work report. The other allegations were dismissed.

Pregnancy and maternity discrimination (section 18 Equality Act 2010)

Ms Ognibanjo again put forward six allegations of pregnancy and maternity discrimination, as follows:

A failure to carry out a pregnancy-specific risk assessment within a reasonable time
A failure to adjust her work duties in line with GP advice
A failure to move her to office-based work to avoid travelling and the risk of working with violent children
A failure to provide a suitable office environment from 16 June 2016
A failure to implement a phased return to work
The events that occurred during the hearing on 8 April 2016

The Tribunal upheld Ms Ognibanjo’s claim in respect of the allegation that LBC had failed to carry out a pregnancy-specific risk assessment with a reasonable time. The Tribunal held that, following O’Neill v Buckinghamshire County Council ([2010] IRLR 384, EAT), LBC were aware that she was pregnant, her work was of a nature that could involve harm or danger to the health and safety of a new or expectant mother, and that the risk arose from work processes or conditions.

Our solicitors’ view on Onigbanjo v London Borough of Croydon

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that all reasonably practicable steps are taken to protect employees’ health and safety in the workplace – a failure to do so could not only render employers liable to personal injury claims but, potentially, as in this case, also expose them to discrimination claims”.

The judgment of the Employment Tribunal can be found here.

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In the case of Steele v Uniquely Chic Furniture (Cheshire) Limited and Michael Bennett 2401533/2017 the Employment Tribunal held that Ms Steele had been sexually harassed by her former employer and that she had suffered a serious psychological injury as a result.

The facts in Steele v Uniquely Chic Furniture (Cheshire) Limited and Michael Bennett

Ms Steele commenced employment with Uniquely Chic Furniture (Cheshire) Limited (“UCF”), a small furniture restoration and retail business, on 23 September 2015 as a furniture painter working on a part-time basis 2 days per week. Susan Scully was a director of UCF as was her husband, Michael Bennett.

On 10 December 2016 Ms Scully went on holiday with Mr Bennett to Mexico. While she was away she left a colleague, Hazel Riley, in charge of the business. Ms Riley raised with Ms Scully on her return from holiday a few issues that she had had with Ms Steele, allegations that Ms Steele denied.

On 22 December 2016 Mr Bennett called Ms Steele on her mobile telephone at 21:14. In this telephone conversation they discussed the reprimand that Ms Steele had received from Ms Scully and Mr Bennett told her not to worry about it. Mr Bennett told her he would call her back.

At 22:12 that night he called her back. After initially talking about work he then changed the conversation and told Ms Steele that he wanted to “fuck” her and “make love” to her. Ms Steele was hocked and tried to make light of what he had said. Mr Bennett then told her that he had an erection and that he had been thinking of Ms Steele ever since he had first seen her. He said she was beautiful. This call lasted for 48 minutes and ended at 23:00.

At 23:12 Mr Bennett then called Ms Steele again. Ms Steele took the call, hoping that he was calling to apologise to her for the previous call. Mr Bennett continued, however, to discuss sex and told her again that he wanted to “fuck” her. He told her she would not lose her job but that, even if she did, he would still pay her. Ms Steele took offence at this as she saw it as a suggestion that she would be like a prostitute. He ended the conversation by telling her that she should keep their conversation “secret” and asked whether she was recording the call. This call ended at midnight and at 00:14 Ms Steele texted her sister: “My boss has been on the phone for last 2 hours saying he’s in love with me and wants to fuck me. and after fucking me he wants to make love. Omg Wft. All I want is job 0”. The next morning Ms Steele made some handwritten notes of the call.

Ms Steele was supposed to be working on 23 December 2016 and was to be picked up by Ms Scully at 9am. She was driven to work by Ms Scully. She attended work that day but on 4 January 2017 could not face going in to work, so did not attend work. She also reported the incident to the police and on 5 January 2017 was signed off work sick by her GP. Her GP’s note records stated that Ms Steele had informed her that she had been sexually harassed by her boss.

Ms Steele did not return to work and resigned on 16 January 2017, stating that the reason for her resignation were the telephone calls from Mr Bennett on 22 December 2016.

Ms Steele made claims in the Employment Tribunal for direct sex discrimination and sexual harassment.

The decision of the Employment Tribunal in Steele v Uniquely Chic Furniture (Cheshire) Limited and Michael Bennett

The Employment Tribunal upheld Ms Steele’s claims for direct sex discrimination and sexual harassment, given that it found that Ms Steele’s account of what occurred in the telephone conversations on 22 December 2016 was to be preferred.

The Employment Tribunal awarded Ms Steele £20,500 in respect of injury to feelings and £6,000 by way of damages for personal injury. The Tribunal also awarded Ms Steele £2,201.31 in interest on these sums.

Our solicitors’ view on Steele v Uniquely Chic Furniture (Cheshire) Limited and Michael Bennett

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “In claims for discrimination and harassment a crucial element in succeeding with any claim will be the contemporary recording (preferably in writing) of the conduct that occurred, in order to demonstrate what occurred and when. A failure to do so can often be fatal to a Claimant’s chances of succeeding with a claim.”

The judgment of the Employment Tribunal on liability can be found here and the judgment on remedy can be found here.

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In the case of Freear v Vossloh Cogifer UK Ltd 1800747/2016 the Employment Tribunal held that Ms Freear should be awarded over £43,000 in compensation after she had been discriminated against and dismissed because she had become pregnant.

The facts in Freear v Vossloh Cogifer UK Ltd

Ms Freear worked for Vossloh Cogifer UK Ltd (“Vossloh”). On 9 December 2015 Ms Freear informed Mr Lindsay that she would like to take maternity leave and later on the same day she was informed that she was to be made redundant. There had been no previous indication that her employment was at risk whether by reason of performance concerns or otherwise. Ms Freear went to see her GP on 11 December 2015 and was signed off work sick on the same day.

On 17 December 2015 Ms Freear was notified by letter of the threat of disciplinary action. The Tribunal found in its earlier liability judgment that she was notified of the threat of redundancy and threatened with disciplinary action because she was pregnant or because of her impending maternity leave.

Ms Freear was signed off work until 8 January 2016 and did not return to work before she resigned from her employment with immediate effect on 18 January 2016.

On 23 December 2015 Ms Freear was referred to North Lincolnshire Psychological Therapy Services. This resulted in Ms Freear attending counselling. Ms Freear experienced feelings of depression, feelings which continued after birth. Ms Freear also gave evidence that he had suffered a loss of confidence. She had attempted to find new roles after her dismissal from Vossler but had been unable to find such.

The decision of the Employment Tribunal in Freear v Vossloh Cogifer UK Ltd

Liability having been dealt with at an earlier hearing, the Employment Tribunal awarded Ms Freear the following sums in compensation:

Injury to feelings: £13,236.92
Loss of earnings prior to the termination of employment: £703.31
Interest on these sums of £67.08
Past loss of earnings: £10,645.89
Future loss of earnings: £19,081.89

In total the Tribunal awarded Ms Freear £43,735.09 in compensation for her claims.

Our solicitors’ view on Freear v Vossloh Cogifer UK Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that disciplinary and redundancy processes are carried out impartially, promptly, and thoroughly, and that the motivation for such processes are genuine. Employers must ensure that, in particular, employees who have informed their employer that they are pregnant are not subjected to any adverse treatment because of their pregnancy.”

The judgment of the Employment Tribunal on remedy can be found here.

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In the case of Secretary of State for Justice v Pinkerton UKEAT/0096/17, the Employment Appeal Tribunal (EAT) dismissed an Employment Tribunal’s (ET’s) ruling that an employee had been unfairly (summarily) dismissed from her position as a prison guard officer for assaulting a prisoner, because it based its conclusion on what it had taken from the CCTV recording of the assault, rather than asking what the Respondent could reasonably have concluded. In essence, the ET acted like the employer and substituted its own opinion contrary to the guidance laid down in the case of British Home Stores Ltd v Burchell [1980] ICR 303.

Summary

The Claimant, an experienced prison officer, used physical force towards a prisoner, Prisoner A, which was captured on CCTV. Prisoner A gave an account of the incident that was contradicted by CCTV footage (which Prisoner A had never seen). After a disciplinary hearing, where the CCTV footage was viewed, it was concluded that the Claimant had assaulted the prisoner and should be summarily dismissed. The Claimant claimed this was unfair. The ET agreed, finding that the failure to show the prisoner the CCTV evidence rendered the investigation unfair. In addition, the ET considered on having viewed the footage, that the assault did not amount to gross misconduct. The Respondent appealed to the EAT.
The EAT held that the CCTV recording provided reasonable grounds for the decision to dismiss, notwithstanding that it had not been put to the prisoner. It was, moreover, perverse that the ET had interpreted the footage itself. By assessing whether or not the Respondent’s finding that the Claimant had not acted in self-defence was correct, the ET had unwittingly fallen into the substitution trap, basing its conclusion on what it had itself taken from the CCTV recordings rather than asking, whether the Respondent acted within the range of reasonable responses.
The facts in Secretary of State for Justice v Pinkerton

The Claimant was an experienced Band 3 Prison Officer at HM Prison Durham and, as such, was subject to the Respondent’s Conduct and Discipline Policy which provided that staff were expected to meet high standards of professional and personal conduct and, in their relationships with prisoners, not to provoke, use unnecessary or unlawful force, not assault a prisoner or use offensive language to a prisoner. The use of unnecessary force was given as a specific example of gross misconduct.

On 20 July 2015, whilst on duty on B Wing, the Claimant was involved in an incident with Prisoner A, during which the Claimant used physical force towards Prisoner A. The Claimant did not complete a record of this incident; instead she reported it to her line manager who advised against the completion of any paperwork. On the following day, however, Prisoner A lodged a complaint relating to the incident.

Prisoner A’s solicitors wrote to the Prison Governor advising they had been informed of this incident and requesting the retention of any CCTV recording. The Respondent embarked upon an investigation into Prisoner A’s complaint. The investigating officer obtained and reviewed the relevant CCTV recording. From the recording, the investigating report concluded that the Claimant had used unnecessary and disproportionate physical force against Prisoner. The report recommended a disciplinary hearing which the Claimant attended (but Prisoner A did not), on 3 and 4 November 2015. It was verified that Prisoner A never saw the CCTV recording and that the accounts of events of Claimant and Prisoner, conflicted.

The Claimant was notified by the Governing Governor of the prison, Mr Timothy Allen, who was conducting the disciplinary hearing, that she faced the following charges, which could constitute gross misconduct if found proven: “That on 20 July 2015 at around 19:00 hours on B2 landing you assaulted/used unnecessary force on Prisoner A and that you were unprofessional in using abusive and disrespectful language towards Prisoner A”. Mr Allen watched the CCTV recording, listened to the Claimant mitigation pleas but still concluded that she should be summarily dismissed. The Claimant appealed his decision internally but this was dismissed and then she proceeded to lodge a complaint at the ET.

The ET agreed with the Claimant that she had been unfairly dismissed. The ET accepted that the reason for the Claimant’s dismissal had related to her conduct but that the decision to dismiss for that reason had not been fair. Specifically, the ET stated that any reasonable employer faced with the conflicting accounts of Prisoner A and the Claimant would have shown the recording to Prisoner A and obtained his comment on what it showed, which was in stark contrast to his account. Further, Mr Allen had concluded that the Claimant was not acting in self-defence without having heard from Prisoner A on that point. When Prisoner A absented himself from the disciplinary hearing, any reasonable employer would have required that the investigating officer revert to Prisoner A to take his evidence on what the recording showed. Finally, the ET concluded that based on their viewing of the recording, no definite answer could be arrived at that the Claimant did in fact use unnecessary force and combined with her mitigating circumstances, she should not have been dismissed.

The Employment Appeal Tribunal decision

Judge Eady sitting alone in the EAT, cited the relevant legal authorities in this case.

She explained that the reason for the Claimant’s dismissal was not contested between the parties (conduct being a potentially fair reason under sections 98(2) and (4) of the Employment Rights Act 1996 (ERA 1996)) but what was pertinent to the case was whether it was reasonable for the employer to treat this as a sufficient reason for the dismissal. Judge Judge Eady cited the decision from the case of British Home Stores Ltd v Burchell [1980] ICR 303 which provides useful guidance that when an employer has established its honest belief in the misconduct in issue, the question for the ET, applying a neutral burden of proof, is whether the employer had reasonable grounds in mind on which to sustain that belief, and whether, at the stage the employer formed its belief, it had carried out such investigation as was reasonable in all the circumstances. The employer’s decision-making in this regard is to be judged against the band of reasonable responses test.

Judge Eady explained that at the heart of the Respondent’s case on this appeal was that the ET failed to direct itself in accordance with this guidance. The ET failed to test the decision reached by the Respondent judged against the range of reasonable responses and effectively substituted its own view. The question for the Respondent had not been whether the Claimant had applied force – that was admitted and clearly visible on the recording – but whether the force applied was unlawful. The question for the ET was whether the dismissing officer’s decision was one that he could reasonably have reached. It was common ground that the use of force was unlawful unless the Claimant acted in self-defence. Whether or not she had was a fact-finding exercise to be conducted by the Respondent, not the ET. To conclude, as the ET apparently did that no reasonable employer could reach that conclusion was plainly wrong given the evidence available to the Respondent: the recording, sufficient in itself; the Claimant’s own admission that she had “lost it” and had failed to complete the relevant paperwork; and the fact that she had received relevant training. The ET had undertaken the fact finding afresh and had then considered whether the Respondent should have reached the conclusion it did, rather than assess whether it could have done.

The EAT went on to state that while it was a potential failing in the investigation that Prisoner A was not shown the CCTV footage, when it came to the decision to dismiss, it was apparent that Mr Allen proceeded on the basis that where there was a conflict between the recording and Prisoner A’s account, he preferred that which he could see for himself from the recording and this did not necessarily make it a faulty investigation process.

Our solicitors’ comments

Caroline Lewis, a specialist employment solicitor at Redmans, commented: “Where an employer decides that a particular potential reason for dismissal is sufficient grounds to dismiss, the ET should only find that decision unfair if it was outside what has come to be known as a ‘range of reasonable responses’ open to the employer. Any time an ET actually decides for itself whether a decision was fair or unfair, it may, as in this case, get firmly “slapped down” by the Employment Appeal Tribunal. Tribunals are constantly told that they must not ‘substitute their own judgement’ for that of the employer as to whether or not dismissal was appropriate; they must confine themselves to deciding whether the decision to dismiss was within the band of reasonable responses. This makes winning unfair dismissal cases – especially where you’ve done something wrong, but your employer has overreacted by dismissing you – pretty difficult”.

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In the case of Deol v Sonic Laboratories Ltd 3323774/2016 the Employment Tribunal held that Mrs Deol had been dismissed by her employer because of her pregnancy

The facts in Deol v Sonic Laboratories Ltd

Mrs Deol commenced employment with Sonic Laboratories Ltd (“Sonic”) on 10 November 2014 as an administrator.

Mrs Deol alleged that Ismail Nawasra (Director) had told her in January 2015 “I d0n’t like pregnant women in the office. I was planning on terminating Lisa but cannot now that she is pregnant. A pregnant lady in this country is very strong.”

On 6 January 2016 Mrs Deol received confirmation of her pregnancy from her GP. She then alleged that she informed Mr Nawasra on 9 January 2016 of her pregnancy, and he informed her that she would have to submit a MATB1 form, which her GP would give her. Mrs Deol then asserted that Mr Nawasra had approved her absence for pregnancy-related absence and an antenatal appointment on 19-22 January 2016. She stated that her absence had been logged as pregnancy-related by Mr Nawasra on Sonic’s HRonline portal.

On 19 February 2016 Mrs Deol attempted to send a text message to Mr Deol stating: “Good morning Nathan, I may not come today, I was very sick last night. I have emergency appointment with midwife n GP. Sorry for that. Please do call me if need me, I will help you on phone. Many thanks.”

On 4 March 2016 Mrs Deol travelled to India on approved annual leave from 7 to 18 March 2016. She was due to return to the UK on 19 March 2016, and return to work on 21 March 2016, but on 16 March 2016 her brother-in-law died unexpectedly. Mrs Deol asked her husband to inform Mr Nawasra that she wished to stay in India for the funeral, and that she would therefore need an extended period of leave. Mr Deol alleged that he had done so, and that Mr Nawasra had not objected to the request.

Mrs Deol did not return to work on 21 March 2016 and the decision was made on 22 March 2016 to dismiss her summarily for unauthorised absence from work. Mr Little (General Manager) sent Mrs Deol an email on 22 March 2016 to confirm that she was viewed as having resigned from her employment due to her unauthorised absence and on 24 March 2016 to state that she was being treated as having resigned from the business. Mrs Deol texted Mr Nawasra on 26 March 2016 to appeal her dismissal but received no response.

On 8 April 2016 Mrs Seol submitted a written complaint complaining, among other things, that she believed the reason for her dismissal was to avoid paying her SMP and because she was pregnant.

Mrs Seol subsequently submitted Employment Tribunal claims for pregnancy discrimination and automatic unfair dismissal.

Sonic denied in its ET3 that Mrs Deol had informed anyone at the company of her pregnancy until after she had been dismissed.

The decision of the Employment Tribunal in Deol v Sonic Laboratories Ltd

The Employment Tribunal upheld Mrs Deol’s claims for pregnancy discrimination and automatic unfair dismissal.

The Tribunal found that Sonic had had knowledge of Mrs Deol’s pregnancy, preferring Mrs Deol’s evidence that she had informed Mr Nawasra of her pregnancy on 9 January 2016 and that she had been subsequently logged absent from work for pregnancy-related reasons by one of her managers. The Tribunal found Sonic’s evidence on this point to lack credibility, as Sonic’s employees had attempted to argue that Mrs Deol had inputted the pregnancy-related absences into the HR portal herself and the Tribunal found that this was unlikely. This finding regarding credibility had a significant impact on the Tribunal’s findings on liability.

With regards to the claim for pregnancy and maternity discrimination, the Tribunal found that there were sufficient facts to infer that the reason for Mrs Deol’s dismissal was her pregnancy (including the lack of procedure followed relating to her dismissal, previous comments made regarding pregnant employees, and the fact that it was implausible that she would be dismissed for gross misconduct after a one-day absence from work). The Tribunal also found her dismissal to be automatically unfair, as it found the reason (or principal reason) for her dismissal was the fact that she was pregnant.

Our solicitors’ view on Deol v Sonic Laboratories Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must take care to treat pregnant employees with respect and patience, and to treat any pregnancy-related absence with the due care and attention that it deserves – submitting an employee to a detriment because they are pregnant or because of a pregnancy-related absence can potentially lead to an Employment Tribunal claim being made.”

The judgment of the Employment Tribunal on liability can be found here.

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In this post we look at five examples of successful Employment Tribunal claims for pregnancy and maternity discrimination that were made in the Employment Tribunal in 2017

Freear v Vossloh Cogifer UK Ltd 1800747/2016

Summary of claim: the Claimant informed her employer that she was pregnant on 9 December 2015. Later that day she was told that her position was at risk of redundancy, and was later threatened with disciplinary action after she was signed off work sick by her GP. The Employment Tribunal held that she had been threatened with redundancy and disciplinary action because she was pregnant.

Compensation awarded: £43,735.09

Click here for our analysis of Freear v Vossloh Cogifer UK Ltd 1800747/2016

Onigbanjo v London Borough of Croydon 2301468/2016

Summary of claim: the Employment Tribunal held that the failure to carry out a risk assessment, in a situation where her employer was aware that she was pregnant, that her work was of a nature that could involve harm or danger to the health and safety of a new or expectant mother, and that the risk arose from work processes or conditions, constituted pregnancy and maternity discrimination.

Compensation awarded: to be determined at a further remedy hearing

Click here for our anlaysis of Onigbanjo v London Borough of Croydon

Doyle v Associated Training Solutions Ltd 2405460/2016

Summary of claim: a complaint was made by a third party regarding something the Claimant was alleged to have said (on a hearsay basis). The Claimant was subsequently disciplined and dismissed as a result of this allegation, and the Tribunal held that she had been discriminated against because of her pregnancy for the following reasons: 1) there was a difference in treatment between the Claimant and a male colleague in similar circumstances; 2) that the Tribunal inferred that one of the reasons for the Claimant’s dismissal was an attempt to avoid paying her statutory maternity pay; and 3) comments had been made by colleagues previously about the Claimant needing to return to work early from any period of maternity leave that she took.

Compensation awarded: to be determined at a further remedy hearing

Click here for our analysis of Doyle v Associated Training Solutions Ltd

Hale v Dentons UKMEA Legal Services ET/2200450/2017

Summary of claim: the Employment Tribunal held that there were sufficient facts to infer that pregnancy and maternity discrimination may have taken place as: 1) the Claimant was coincidentally dismissed upon her return from maternity leave; 2) the Tribunal took the view that there was not a fair and genuine selection process in which the Claimant was genuinely rated less highly than her colleagues; 3) that there was a failure to take notes of the meetings, and that there was the lack of process that one would normally expect from such redundancy exercises. The Tribunal decided that, on the balance of probabilities, the Claimant’s colleagues made the conscious decision that the easiest option would be to make the Claimant redundant as she was away on maternity leave and this would cause the least disruption.

Compensation awarded: to be determined at a further remedy hearing

Click here for our analysis of Hale v Dentons UKMEA Legal Services

Ginger v Department for Work and Pensions 3401940/2015

Summary of claim: the Employment Tribunal held that the refusal to allow the Claimant time off work for further IVF treatment amounted to direct sex discrimination, as the Tribunal held that a man would not have been spoken to in such a manner.

Compensation awarded: £24,387.64

Click here for our analysis of Ginger v Department for Work and Pensions

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In the case of Lewandowski v Bradford District Apprenticeship Training Academy 1801538/2016 the Employment Tribunal held that Ms Lewandowski had been discriminated against when she was dismissed by her employer because of ’emotional volatility’ (as this emotional volatility had arisen through circumstances relating to her pregnancy).

The facts in Lewandowski v Bradford District Apprenticeship Training Academy

Ms Lewandowski commenced employment with Bradford District Apprenticeship Training Academy (“BDATA”) as an Employer Engagement Officer on 22 July 2013 on a fixed-term contract running to 30 March 2015. She was promoted to the position of Apprenticeship Manager in December 2013 and her contract was extended to 31 March 2016.

BDATA is a joint venture between Bradford College and City of Bradford Metropolitan Council, with the aim of acting as a broker between employers and apprentices. The Council provided three years of funding to BDATA, which was due to end on 31 March 2016. This was an anticipated event and planning for that eventuality took place in late 2015, as it was necessary for the organisation to plan out its options to ensure that the venture continued beyond 2016. The employee of BDATA were Kate Dallas-Wood, the Chief Executive Officer (on a salary of £40,000 per annum), Ms Lewandowski (on a salary of £33,000 per annum), and Jessica Wolfenden, Marketing Executive (on a salary of £16,000 per annum).

In November 2015 Bradford College made the decision that BDATA would be ‘spun out’ of the college as a separate entity from April 2015. A board meeting took place on 12 January 2016 and at this meeting it was decided that Ms Dallas-Wood’s contract would not be renewed beyond March 2016, but that Ms Lewandowski and Ms Wolfenden would both be offered a 12-month extension to their contracts to 31 March 2017. From November 2015 to January 2016 the management accounts and financial performance of BDATA was finalized and approved. Ms Dallas-Wood subsequently informed Ms Wolfenden and Ms Lewandowski of what had been decided and that they would be offered a 12-month extension.

In late January 2016 Ms Lewandowski disclosed her pregnancy to her friends at work, friends which included Ms Wolfenden. She became keen to have her contract extension finalized and chased Ms Dallas-Wood for a copy of the contract. She also approached Ms Dallas-Wood on 18 February 2016 to find out what was happening with her contract, and explained that she was pregnant (she said this in confidence and explained that she was telling Ms Dallas-Wood so that she would understand why she was pressing for the written extension).

On 22 February 2016 there was a further board meeting, at which the Tribunal found that Ms Dallas-Wood had disclosed Ms Lewandowski’s pregnancy to them and that it was discussed that there was a need to extract another salary because the business could not afford it.

After the board meeting on 22 February 2016 Ms Lewandowski was called to a meeting with Ms Dallas-Wood and other board members. Ms Lewandowski was told that despite her being offered a contract extension to 31 March 2017 the position had now changed and the business could not afford her salary. She was told that her contract would terminate on 31 March 2016.

Ms Lewandowski suffered a miscarriage in March 2016 and submitted a grievance in June 2016 complaining of unfair treatment and pregnancy discrimination. She subsequently made claims in the Employment Tribunal for unfair dismissal, automatic unfair dismissal, and pregnancy and maternity discrimination.

The decision of the Employment Tribunal in Lewandowski v Bradford District Apprenticeship Training Academy

The Employment Tribunal upheld Mrs Deol’s claims for pregnancy discrimination (section 18 Equality Act 2010), unfair dismissal, and automatic unfair dismissal (section 99 Employment Rights Act 1996).

Pregnancy and maternity discrimination

The Tribunal found that there was sufficient facts for the Tribunal to come to a conclusion that the reason for Ms Lewandowski’s dismissal was her pregnancy: an analysis of the viability of the business had been undertaken, she had been offered a new contract on the basis of that analysis, that after the business was made aware of her pregnancy that contract offer was withdrawn, and that the business had failed to offer an adequate explanation as to why the decision was made to terminate Ms Lewandowski’s contract. The Tribunal also held that it did not find BDATA’s witnesses credible due to conflicts between their witness evidence and the documentary evidence.

Unfair dismissal

The Tribunal found that Ms Lewandowski’s dismissal was both substantively and procedurally unfair: there was no warning, no consultation, no selection process followed, no selection procedure, and no appeal.

Remedy

The Employment Tribunal awarded Ms Lewandowski:

£8,454.08 in respect of financial losses between 31 March 2016 and 31 March 2017, together with interest of £676.33
£15,000 in respect of injury to feelings, together with six months’ interest of £600
£300 in respect of loss of statutory rights
Reimbursement of Tribunal fees (£435)

Our solicitors’ view on Lewandowski v Bradford District Apprenticeship Training Academy

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must not dismiss employees because they are pregnant or because they have taken (or are taking or intend to take) a period of maternity leave) – such treatment would not only constitute pregnancy discrimination but also automatically unfair dismissal.”

The judgment of the Employment Tribunal can be found here.

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In the case of Carrabyne v Department for Work and Pensions ET/2401990/2016 the Employment Tribunal held that Mrs Carrabyne had been discriminated against by the Department for Work and Pensions (“DWP”) when she was dismissed for an absence unrelated to her disabilities, awarding her over £110,000 in compensation.

The facts in Carrabyne v Department for Work and Pensions

Mrs Carrabyne, who has a hip problem and suffers from depression, commenced employment with the DWP in July 2012. She worked in a team of 15 people at the Belle Valley Department of the DWP, and her line manager was Mr Woodward.

During Mrs Carrabyne’s employment the DWP made a number of adjustments to the workplace to compensate for Mrs Carrabyne’s disabilities, including the use of specialist workstation equipment, a specialist chair, and increased consideration points in relation to the department’s trigger points (Mrs Carrabyne had six days’ additional to the standard eight days’s allowed absence in a rolling 12 month period, equating to an allowed total of 14 days’ absence in any 12 month rolling period).

Mrs Carrabyne had the following periods of absence from work:

2 April 2014 to 24 June 2014: absence due to a hip operation
29 January 2015: one days’ absence due to her hip
30 January 2015: absence due to a steroid injection (which did not count towards her period of absences)
7 April 2015 to 13 July 2015: absence due to her depression
4 January 2016 to 8 January 2016: gastric flu

Ms Carradyne was given a first written warning on 12 January 2015 with a review period that ended on 9 August 2015. Ms Carradyne appealed this but the appeal was not upheld.

An Occupation Health report was produced on 25 January 2016. This confirmed that Mrs Carrabyne had a longstanding history of depression which was well-maintained with medication, and that she had daily hip pain which limited her mobility.

Mrs Carraydne was then given a final written warning on 28 July 2015 with a review period which ended on 27 January 2016.

After Mrs Carradyne’s absence in January 2016 Mr Woodward referred Mrs Carradyne’s matter to Mrs Bennett for a decision, saying that her absence record was unsustainable and that there was no evidence of sustained improvement in her overall absence, particularly given that she was on her final written warning review period. Although Mrs Bennett deemed Mrs Carrabyne’s absence to be genuine she decided that Mrs Carrabyne should be dismissed, as her opinion was that Mrs Carrabyne had not shown an improvement in her attendance in the last review period and she was not convinced that a sustained improvement could be achieved in the future. Mrs Carrabyne appealed the decision but her appeal was rejected.

Mrs Carradyne brought claims in the Employment Tribunal for discrimination arising from disability, a failure to make reasonable adjustments, and unfair dismissal.

The decision of the Employment Tribunal in Carrabyne v Department for Work and Pensions

The Employment Tribunal upheld Mrs Carrabyne’s claims for discrimination arising from disability (section 15 Equality Act 2010), failure to make reasonable adjustments (section 20 Equality Act 2010), and unfair dismissal.

Discrimination arising from disability

The DWP accepted that it’s dismissal of Mrs Carrabyne was unfavourable treatment because of something arising in consequence of her disability. The Tribunal held that her dismissal was not a proportionate means of achieving a legitimate aim and that her dismissal was therefore discriminatory: the Tribunal’s decision on this point was influenced by the fact that the DWP had failed to put forward any evidence that Mrs Carrabyne’s absence had a significant impact on her department.

An analysis of the law relating to discrimination arising from disability can be found here.

Failure to make reasonable adjustments

The Employment Tribunal held that the DWP had failed to make reasonable adjustments in relation to Mrs Carradyne’s dismissal by: 1) discounting the disability-related absences in relation to the DWP’s absence policy; or 2) extending the DWP’s absence policy trigger points. The Tribunal held that these adjustments would have been reasonable and that the cost to discount Mrs Carrabyne’s absences would have been nil.

An analysis of the law relating to failure to make reasonable adjustments can be found here.

Unfair dismissal

The Employment Tribunal held that the DWP was a large organisation with access to large resources. The Tribunal found that the reason for the dismissal was a potentially fair reason (capability) but that it did not act reasonably in treating the circumstances as as sufficient reason for dismissal.

An analysis of the law relating to unfair dismissal can be found here.

Remedy

The Employment Tribunal made the followings to Mrs Carrabyne:

Basic Award: £1,107.69
Loss of statutory rights: £738.46
Past loss of earnings: £22,548.41 (with interest of 8% to be added)
Future loss of earnings: £35,611.56
Injury to feelings: £18,700 (with interest of 8% to be added)

The Tribunal also ordered that the DWP pay a sum of £17,814 in respect of the cost of Mr Carrabyne obtaining a degree from the Open University and that 36 months’ employers’ pension contributions be paid to her (together with interest on such).

The total award made to Mrs Carrabyne by the Employment Tribunal amounted to £110,165.

Our solicitors’ view on Carrabyne v Department for Work and Pensions

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “If employers are aware (or reasonably should be aware) that an employee is disabled then they should take care to ensure whether any adjustments can be made in the workplace (whether relating to absences or otherwise); a failure to do so may result in the employer discriminating against the employee.”

The judgment of the Employment Tribunal on liability can be found here and the judgment on remedy can be found here.

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In the case of Basra v BJSS Ltd [2017] UKEAT 0090_17_1912 the Employment Appeal Tribunal held that pre-termination negotiations were admissible when there was a dispute as to what the ‘effective date of termination’ was.

The facts in Basra v BJSS Ltd

Mr Basra commenced employment with BJSS Ltd as a Technical Architect on 30 September 2013. He was a well-regarded employee for most of that time but in 2016 BJSS Ltd started to have concerns about his performance.

On 29 February 2016 Mr Basra met with Mr Michitson, a colleague at BJSS Ltd. Mr Basra’s account of this meeting was that he was told to resign by Mr Michitson; Mr Michitson denied this and stated that it was Mr Basra who offered to resign.

On 1 March 2016 BJSS Ltd wrote two letters to Mr Basra: the first letter inviting him to a disciplinary hearing (to take place on 7 March 2016) to consider the concerns they had regarding his performance; and the second letter making a ‘without prejudice’ offer informing him that he could be dismissed as a result of the disciplinary hearing and making an offer of financial settlement.

On 3 March 2016 Mr Basra sent an email to BJSS Ltd stating that he did not accept BJSS Ltd’s account of the hearing that took place on 29 February 2016 but that he wished to accept the financial offer put forward (and that 3 March 2016 would be his last day of employment at BJSS Ltd).

There was then a back-and-forth between Mr Basra (and his solicitors) and BJSS Ltd, and Mr Basra then (after a period of time when Mr Basra was off work ill) indicated on 29 March 2016 that he had not resigned and that he expected to return to work when fit. BJSS Ltd replied that date to confirm that they believed that Mr Basra’s employment had ended on 3 March 2016 by mutual agreement or, at latest, on 15 March 2016 when he had been categorically informed that his employment had ended.

Mr Basra submitted his ET1 on 7 June 2016, claiming that his employment had ended on 3 March 2016 (although this was later amended to 15 March 2016), and claimed that he had been unfairly and wrongfully dismissed. BJSS Ltd’s ET3 denied that Mr Basra had been dismissed and maintained that his employment had ended by mutual agreement; it also stated that there had been without prejudice correspondence with Mr Basra under the auspices of 111A Employment Rights Act 1996 and mentioned Mr Basra’s email on 3 March 2016.

The law on section 111A of the Employment Rights Act 1996

You can read our analysis of the law on section 111A of the Employment Rights Act 1996 by reading this article: Section 111A Employment Rights Act 1996 – what is it and what does it mean?

The decision of the Employment Tribunal

The Employment Tribunal held that section 111A Employment Rights Act 1996 precluded it from considering any of the without prejudice discussions that had taken place, whether or not it related to the issue of whether a dismissal had been unfair. The Tribunal therefore held that, following Mr Basra’s email on 3 March 2016, there had not been a dismissal and, for that reason, dismissed Mr Basra’s claim.

Mr Basra appealed this decision to the Employment Appeal Tribunal.

The decision of the Employment Appeal Tribunal

The Employment Appeal Tribunal (“EAT”) upheld Mr Basra’s appeal, holding that the effect of section 111A ERA 1996 was to preclude the Tribunal from relying on any pre-termination negotiations for the purposes of determining the fairness of a dismissal, but it did not preclude the Tribunal from relying on the fact and/or content of pre-termination negotiations for the purposes of determining what date the dismissal took effect on and how the dismissal had been effected (e.g. whether there had been a resignation or a dismissal).

Our solicitors’ view on Basra v BJSS Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “The effect of this case is that pre-termination negotiations are not inadmissible for the purposes of determining the date on which a dismissal took effect. Employers should always be careful to ensure that any pre-termination negotiations are headed both ‘without prejudice’ and under ‘section 111A Employment Rights Act 1996’ in order to give themselves maximum protection in the event an Employment Tribunal claim is brought.”

The judgment of the Employment Appeal Tribunal can be found here.

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In the case of Cape Industrial Services Ltd and Mr Mark McCoag: 3400891/2016 the Employment Tribunal held that, by consent, the claim of race-related harassment succeeded but that the claims for direct race discrimination and constructive dismissal succeeded. The Employment Tribunal awarded Mr Atkinson £8,000 compensation in respect of the claim of race-related harassment.

The facts in Cape Industrial Services Ltd and Mr Mark McCoag

Cape Industrial Services Ltd (“Cape”) provides maintenance services on onshore and offshore oil and gas installations. Mr Atkinson was a Rope Access Regional Manager at Cape.

On 28 July 2016 Mr Atkinson was present during a conversation between Mr McCoag and colleagues. During this conversation, when complaining about his son’s lack of application at work, and in Mr Atkinson’s hearing, Mr McCoag made the comment: “all I’ve done is work like a fucking nigger all my life”.

Mr Atkinson submitted a grievance regarding Mr McCoag’s comment. He then alleged that he had been subjected to the following allegedly discriminatory conduct by Cape:

That he was told that he could “expect some flack back” as a result of his grievance;
That he was told at a grievance meeting on 27 May 2016 that Mr McCoag’s comment was not considered to be gross misconduct;
That Cape had failed to engaged pro-actively and/or appropriately with him in the conduct of the grievance investigation (by not informing him of the outcome of Mr McCoag’s disciplinary proceedings);
That Cape treated racially abusive language as less serious than non-racially abusive language; and
That the above allegations of discrimination individually or cumulatively constituted a fundamental breach of Mr Atkinson’s contract of employment, rendering his resignation both unfair and discriminatory

The decision of the Employment Tribunal in Cape Industrial Services Ltd and Mr Mark McCoag

The parties agreed that Mr McCoag’s comment on 4 May 2016 constituted race-related harassment, and the Employment Tribunal upheld a claim for race-related harassment (under section 26 Equality Act 2010).

A guide on the law relating to harassment at work can be found here.

The Employment Tribunal dismissed, however, Mr Atkinson’s claims for direct race discrimination (under section 13 Equality Act 2010) and constructive unfair dismissal – the Tribunal found that the “flack” comment had not been made, that Mr Atkinson had not been informed at the relevant meeting that Mr McCoag’s conduct was not gross misconduct, that Cape had engaged proactively and appropriately with Mr Atkinson with regards to the grievance process, and that Mr Atkinson had not resigned because of a fundamental breach of contract.

A guide on the law relating to race discrimination can be found here.

Our solicitors’ view on Cape Industrial Services Ltd and Mr Mark McCoag

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that fair, impartial and thorough grievances were undertaken (as the Tribunal found had been the case in this case), in order to ensure that internal mediation procedures are as successful as possible and, further, that potential discrimination cases are avoided”.

The judgment of the Employment Tribunal can be found here.

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In the case of Miss A Thompson v Really Easy Car Credit Ltd: 2501154/2016 the Employment Tribunal held that a pregnant employee was dismissed by her employer because of her pregnancy, awarding her over £8,500 in compensation.

The facts in Thompson v Really Easy Car Credit Ltd

Ms Thompson commenced employment with Really Easy Car Credit Ltd (“RECC”) on 20 June 2016 as a telesales operator; RECC is a small family owned business which sells second hand cars.

On 15 July 2016 Mr Mate, a director of RECC, sent Ms Thompson an email confirming that he was happy with her work and that he thought she was doing a “great job”. She took cigarette breaks and was told that they were too frequent, so she reduced the number of breaks.

Ms Thompson discovered that she was pregnant in the week commencing 25 July 2016. On Saturday 30 July 2016 she began to experiences pains, and these pains continued in to Sunday and Monday. On Tuesday 2 August 2016 she sent a text to Mr Mate confirming that she was suffering from pains and asking to take a days’ holiday as she was attending hospital. Mr Mate replied that this wasn’t a problem and not to worry about work. Mr Crawford, who is one of the owners, took the view, however, that this was the last straw, that she should have gone to hospital earlier, and that she should not have waited until she was due back at work. He wanted to terminate Ms Thompson’s employment there and then but was talked out of it by the other owners.

On 3 August 2016 Ms Thompson turned up for work. There was an incident when Ms Thompson spoke to a customer – she was emotional from her hospital visit and she became upset after Mr Fullerton (whose duties included human resources) spoke to her. Ms Thompson went home after this. That afternoon, the business’ owners/directors had a further conversation about Ms Thompson and decided that she should be dismissed due to her “emotional volatility”, her poor performance, and her poor conduct. A letter was drafted by Mr Fullerton that day confirming that she would be dismissed, but was not posted right away (as he felt that it should be given by hand to Ms Thompson when she returned to work).

On 4 August 2016 Mr Fullerton called Ms Thompson to say that she would return to work the next day. She informed Mr Fullerton that she was pregnant in this telephone conversation. Mr Fullerton then reported this information to Mr Mate, who told him to speak to their lawyers.

On 5 August 2016 Ms Thompson returned to work. Upon attending work she was approached by Mr Fullerton, who handed her the prepared letter. This letter stated that her employment was being terminated with immediate effect because of her performance (during her probation period). Mr Fullerton confirmed this verbally.

The decision of the Employment Tribunal in Thompson v Really Easy Car Credit Ltd

The Employment Tribunal held that the reason for Ms Thompson’s dismissal was her emotional volatility and her failure to fit in with the company’s worth ethic, with the final straw being Ms Thompson’s emotional outburst on 3 August 2016. The Tribunal held that it must have been obvious to the company that her attendance at hospital and emotional state were pregnancy-related, but nonetheless they went forward and dismissed her. The Tribunal therefore held that there were sufficient facts to reverse the burden of proof, and that the company had failed to show that Ms Thompson’s dismissal was in no way related to her pregnancy. The Tribunal therefore upheld Ms Thompson’s claim under section 18 Equality Act 2010 and held that her dismissal was an act of discrimination – it held, however, that if the company had sent her the letter on 3 August 2016 (and not delayed until 5 August 2016) then it would have not upheld her claims.

The Employment Tribunal awarded Ms Thompson the sum of £8,592.55 in compensation, comprised of £2,500 for injury to feelings and £6,092.55 in respect of loss of earnings.

Our solicitors’ view on Thompson v Really Easy Car Credit Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that the dismissal of employees (and, in particular, pregnant employees) are undertaken in a fairly and impartial manner after a thorough investigation into any allegations has been undertaken, otherwise they risk potential claims for discrimination and unfair dismissal being brought.”

The judgment of the Employment Tribunal on liability can be found here and the judgment on remedy can be found here.

N.B. The Employment Appeal Tribunal has now upheld an appeal by Really Easy Car Credit in this case (judgment here). The decision of the EAT in this case will be analysed in due course

About

In the Employment Appeal Tribunal case of Really Easy Car Credit Limited v Thompson the

Ms Thompson commenced employment with Really Easy Car Credit Ltd (“RECC”) on 20 June 2016 as a telesales operator; RECC is a small family owned business which sells second hand cars.

The decision of the Employment Tribunal

The Employment Tribunal upheld Ms Thompson’s claims for pregnancy and maternity discrimination and automatic unfair dismissal, holding that by delaying the decision to dismiss her from 3 August 2016 (when the RECC directors didn’t know that she was pregnant) to 5 August 2016 (when they did know she was pregnant) the company had failed to convince the Tribunal that her dismissal was in no way related to her pregnancy.

Our analysis of the decision in the Employment Tribunal case of Thompson v Really Easy Car Credit Ltd can be found here.

RECC appealed the decision of the Employment Tribunal.

The decision of the Employment Appeal Tribunal

The Employment Appeal Tribunal (“EAT”) upheld RECC’s appeal, holding that the Tribunal had misapplied the law – it had misapplied the burden of proof and imposed a positive obligation on RECC to take a further decision as to whether to dismiss Ms Thompson once it had learned of her pregnancy (which was not the correct approach by law – it was settled law in Del Monte that in determining the reason for dismissal there was no positive obligation for the employer to revisit its decision to dismiss (which had been made prior to them having knowledge of her pregnancy) once it had learned of her pregnancy. The reason (or principal reason) for her dismissal was not because of her pregnancy but because of her performance, conduct, and “emotional volatility”.

The EAT remitted the matter to a different Employment Tribunal for a decision on what took place after Ms Thompson notified RECC of her pregnancy (on 4 August 2016).

Our solicitors’ view on Really Easy Car Credit Limited v Thompson

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case (again) demonstrates that the critical issue that an Employment Tribunal must examine is the reason for the dismissal – in most cases if a decision to dismiss is made before an employee notifies her employer of her pregnancy then it may be difficult for the employee to show she was dismissed because of her pregnancy.”

The Employment Appeal Tribunal judgment can be found here