Dismissal of woman on maternity leave was discrimination (ET)

In the case of Ms M Kaminska v Mr C Marchesani & ors 2202696/2020 and 2202182/2020 the Employment Tribunal held that the failure to redeploy a woman from maternity leave, and a failure to deal with her complaints, amounted to unfair dismissal, victimisation, and maternity leave discrimination.

The facts in Ms M Kaminska v Mr C Marchesani and others

Ms Kaminska commenced employment with Trans-fast Remittance (London) Limited (owned by Optima FX Ltd) (“Trans-fast”) on 13 July 2012 as a customer service employee. Trans-fast provided a remittance service for workers working abroad who wanted to send currency to their home country; it had branches in Spain and Italy and operated in 42 different countries.

In April 2018 Ms Kaminska informed Ms Rio, one of the owners and managers of the company at that time, that she was pregnant.

On 17 December 2018 Ms Kaminska wrote to Ms Rio to say that she wished to return to work after maternity leave, and she subsequently went on maternity leave.

On 18 December 2018 Optima FX Ltd negotiated the acquisition of the respondent.

In April 2019 Ms Rio told the claimant that the company had new owners and that she could contact Ms Virgolin, who had been promoted to Operations Manager from January/February 2019.

On 13 November 2019 Ms Kaminska wrote to Mr Marchesani introducing herself and informed him that  her maternity would end on 14 January 2020; she informed Mr Marchesani that she would like to return to work soon after that date.

On 18 November 2019, Mr Ribeiro emailed Ms Kaminska stating that they were looking at analysing her case and any job opportunities for her to return to the team and would contact her in early January 2020.

On 9 January 2020 Mr Ribeiro emailed Ms Kaminska informing her they could offer her a job at their new shop in Southwark at an hourly rate of £9 per hour from Monday to Friday from 9am-2pm or 2pm-7pm and 2 Saturdays per month from 10am-5pm, also stating he would be at her disposal to discuss her situation and ask any questions.

On 10 January 2020 Ms Kaminska emailed Mr Ribeiro.  She raised concerns as to what he meant by his reference to `analysing my case’? She argued she was an employee of TransFast and would like to continue working at her current hourly rate of £11. Ms Kaminska also stated that before she went on maternity leave she had officially confirmed that she was planning to return to work in January 2020.  She asked for details of the address of the new shop in Southwark to check if the address was convenient for her to travel and stated she was happy to come over and discuss all the details. Mr Marchesani was copied into all the emails.

On 29 January 2020 Ms Kaminska sent a grievance letter to Mr Ribeiro, copied to Mr Marchesani, in which she raised a formal grievance – this grievance complained about the organisation’s failure to offer her the same job as she had before commencing her maternity leave which, she argued, amounted to pregnancy/maternity discrimination under the Equality Act 2010, and also automatically unfair dismissal. Ms Kaminska received no reply to her grievance letter.

On 5 February 2020 Ms Kaminska received a termination letter, confirming that her employment had been terminated by reason of redundancy.

On 17 February 2020 Ms Kaminska sent a further grievance and appeal against dismissal. She received no response, and instead she was sent a final redundancy payslip.

Ms Kaminska subsequently lodged a claim in the Employment Tribunal for unfair dismissal, maternity discrimination and victimisation.

The decision of the Employment Tribunal

Unfair dismissal

The Employment Tribunal rejected the argument that Ms Kaminska was fairly dismissed by reason of redundancy, as her role had continued to be performed through maternity cover by Ms Matuszewska.  There had been no consultation process or fair selection procedure and no attempts to redeploy Ms Kaminska; equally, Ms Kaminska had not been allowed the opportunity to appeal the decision to make her redundant.

You can learn more about the law on unfair dismissal here

Automatically unfair dismissal

The Employment Tribunal found that the principal reason that Ms Kaminska was dismissed was because she was on maternity leave, which constituted automatically unfair dismissal. The employer had not allowed her the chance to return to her previous role, instead offering her a role on reduced pay and hours and then dismissing her.

Victimisation  

The claim of victimisation was also upheld in relation to her two grievances, the first submitted on 29 January 2020, the second on 17 February 2020 as being protected acts under the Equality Act 2010.

You can learn more about the law on victimisation here

Maternity leave discrimination

Mr Ribeiro as an employee of the company was found liable for direct discrimination. Mr Marchesani as the sole shareholder of the company was found to have aided the company in committing acts of discrimination.

Our lawyers’ views on the case of Kaminska v Mr C Marchesa

Stephen Norton, a lawyer at Redmans, commented on the case: “In this case once again a valued female employee on maternity leave was seen as a hindrance and inconvenience to the business to be disposed of rather than accommodated. The employer believed they could bypass fair redundancy procedures and pregnancy/maternity protections and dismiss an employee without fear of comeback.  The tribunal saw through this somewhat lazy tactic.”

The decision of the Employment Tribunal in the case of Ms M Kaminska v Mr C Marchesani 2202696/2020 and 2202182/2020 can be found here.

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