Precedent 1 Pregnancy: dismissal and other detriments

This precedent covers these issues:

 

• Dismissal

• Failure to give written reasons for dismissal

• Failure to give correct notice

• Refusal to allow claimant to be accompanied to the disciplinary

• Detrimental actions prior to dismissal.
  

 

Box 5.2 of tribunal claim form

 

1.      I started work for the respondent in March 2002 and I was promoted to hotel manager in August 2010. I never had any disciplinary warnings, verbal or written, throughout my employment.

2.      On 1st October 2010, I told the hotel director, Keith Venables, that I was pregnant. Mr Venables congratulated me and said, “You make me think about things”. I did not know what he meant.

3.      On 4th October 2010, Mr Venables telephoned me and said that business was down and my performance was unsatisfactory. He said he had warned me about this before, which is not true. Then he said, “You don’t know how your pregnancy will go and how you will cope with the workload. You won’t be able to get up early and after eight months, you’ll sleep more”. I was so shocked that I burst into tears.

4.      As hotel manager, I was invited to attend the Group management meetings every month. However, I was not invited to attend the meetings on 6th October 2010 and 13th October 2010.

5.      On 14 October 2010, Mr Venables sent me an e-mail telling me to attend a disciplinary hearing on 18th October 2010 in respect of my poor performance. I was not informed prior to the hearing of any details as to what was wrong with my performance. I was not told that I could bring a work colleague with me, contrary to the ACAS Code on Disciplinary and Grievance Procedures. When I asked if I could bring someone with me, I was told that was not necessary.

6.      When I attended the hearing, Mr Venables produced statistics showing that hotel occupancy had gone down dramatically in the previous 18 months. I said this was not my fault. It was a result of the global recession. Mr Venables would not listen to me. He said that he could not afford to carry the business and unfortunately he had to replace me. He told me I was dismissed with immediate effect and that a manager from another hotel was coming over to cover. This was not confirmed in writing. My appeal to the Group hotel director on 20th October 2010 was rejected on 22nd October 2010.

7.      I believe I was discriminated against on grounds of my pregnancy contrary to the Equality Act 2010:
(i)   in the remarks made by Mr Venables to me on 4th October 2010 as set out at paragraph 3 above;
(ii)   by excluding me from the Group management meetings as set out at paragraph 4 above;
(iii)  in my dismissal.

 

8.      I believe my dismissal was automatically unfair because I was dismissed for a reason related to my pregnancy contrary to the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999.

 

9.     I was also subjected to detriments short of dismissal for reasons related to my pregnancy contrary to the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999:

        (i)  in the remarks made by Mr Venables to me on 4th October 2010 as set out at paragraph 3 above;
(ii)   by excluding me from the Group management meetings as set out in paragraph 4 above;

10. Further or alternatively, my dismissal was unfair on ordinary principles under s98(4) of the Employment Rights Act 1996 because 

        (i)   I had received no prior warnings that Mr Venables had concerns about my performance, which is a breach of the ACAS Code on Disciplinary and Grievances Procedures;
(ii)  Hotel occupancy had declined through no fault of my own; it was not due to my performance;
(iii) It was not reasonable to dismiss me for that reason.

11. As I had worked 8 full years for the respondent, I was entitled to the statutory minimum of 8 weeks notice under s86 of the Employment Rights Act 1996. I was only paid 4 weeks in lieu of notice and I claim the balance of 4 weeks.

12. I was not given any letter setting out the reasons why I was dismissed. This is contrary to s92(4) of the Employment Rights Act 1996 and I claim a declaration and compensation under s93 of the Employment Rights Act 1996.

13. Contrary to the ACAS Code on Disciplinary and Grievance Procedures, I was not informed of my right to be accompanied to my disciplinary hearing. When I asked if I could be accompanied, my employer refused. This refusal was contrary to the Employment Relations Act 1999 and I am entitled to two weeks’ pay.

Notes

Actions complained of

 

Always identify the actions complained of first. Here, these are:

 

• The remarks made by Mr Venables on 4th October 2010.
• Exclusion from the Group management meetings on 6th October 2010 and 13th October 2010
• Dismissal
• Refusal of right to be accompanied to the disciplinary hearing
• Failure to give written reasons for the dismissal.
• Inadequate notice

 

It is very important not to miss tribunal time-limits. These can be complicated. Click here for more detail on discrimination time-limits.

 

 

Applicable law

 

Dismissal due to pregnancy or for a reason related to pregnancy is:

 

-          automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and regulation 20 of the Maternity and Parental Leave etc Regulations 1999.

-          unfavourable treatment because of pregnancy under section 18(2) of the Equality Act 2010.

 

The employer’s detrimental actions other than dismissal, ie adverse comments, exclusion from meetings, assuming these were related to pregnancy, are:

 

-          further acts of unfavourable treatment because of pregnancy under section 18(2) of the Equality Act 2010

-          detriments for a reason related to pregnancy under section 47C of the Employment Rights Act 1996 and regulation 19 of the Maternity and Parental Leave etc

            Regulations 1999.

 

This would also apply to rejection of the claimant’s appeal if it was based on pregnancy (not the case here).

  

Failure to give written reasons for the dismissal to the claimant if she is an employee (regardless of length of service) is unlawful under sections 92(1) and 93 and 93 of the Employment Rights Act 1996.  Pregnant employees and women on maternity leave must always be provided with written reasons for their dismissal under section 92(4) of the Employment Rights Act 1996; they are not required to request these.

 

Unfair dismissal – if the claimant is an employee with at least one year’s service, she can claim ordinary unfair dismissal under section 98(4) of the Employment Rights Act 1996. For this, she does not need to prove the dismissal was on grounds of her pregnancy, but simply that it was unfair under the usual unfair dismissal rules (see below).

 

Notice entitlement is as set out in the claimant’s contract of employment subject to the statutory minimum notice entitlement in section 86 of the Employment Rights Act 1996.

 

Failure to allow the claimant to be accompanied at her disciplinary hearing by a work colleague or trade union representative is contrary to section 10 of the Employment Relations Act 1999, for which 2 weeks’ compensation can be awarded. Under the ACAS Code on Disciplinary and Grievance Procedures, the employer should draw the claimant’s attention to her right to be represented. Failure to follow this recommendation in the Code is relevant to the issue of unfair dismissal and also to the level of compensation if the claimant wins her case.

 

Click here for a table of legal rights often applicable in areas relevant to working families.

 

Comments on the claim drafted above

 

Paragraph 1: This is an easy way to start most tribunal claims. Only say that the claimant has never had any warnings if it is true.

 

Paragraph 2: It is important to establish the employer knew the claimant was pregnant and from what date.

 

Paragraph 3: It is particularly important to quote precisely all adverse remarks made by the employer regarding the claimant’s pregnancy.

 

Paragraphs 3 - 6 briefly summarise the relevant events.

 

Paragraphs 7 – 9 set out the law relevant to the pregnancy discrimination.

 

Paragraphs 10 - 13 set out other areas of law applicable on the facts, but which are not specifically relevant to pregnancy discrimination.

 

Paragraph 10: It is potentially a fair dismissal for an employer genuinely to dismiss an employee for a substantial reason such as misconduct, incapability or redundancy. The employer will still need to handle the matter fairly and be reasonable in deciding to dismiss the employee for that reason. Here, the tribunal may decide the claimant was genuinely dismissed for incapability and not because she was pregnant. It is useful to set out the reasons why even a genuine dismissal for incapability would be unfair, eg lack of prior warnings. But if you are at all uncertain, it is best just to state the dismissal was unfair on ordinary principles under s98(4) and stop after the word ‘1996’. The claim mentions ‘s98(4)’ just to make it clear it is talking about ordinary unfair dismissal here rather than any kind of automatic unfair dismissal.

 

At sub para 10(i), the claimant points out that the failure to give prior warnings for this type of performance issue was a breach of the ACAS Code on Disciplinary and Grievance Procedures. This is relevant both to the fairness of the dismissal and the amount of compensation if the claimant wins. However, it is not essential to refer to the Code in the tribunal claim. The point can still be made at the tribunal Hearing. Unless you are very sure the Code does cover the point, just leave out the words ‘which is in breach of the ACAS Code’.

Paragraph 11:  Always check if correct notice has been given or paid in lieu. If not, make a claim. Where the claimant has not been given or paid any notice at all, you can simply write: ‘I was dismissed without notice, which is a breach of contract, so I am entitled to my notice pay’. In any event, boxes 4.3 and 5.1 on the new standard tribunal Claim form ask you to indicate whether notice is claimed.

 

Paragraph 12: This claim is applicable whenever a pregnant employee or employee on maternity leave is dismissed and the employer unreasonably fails to give written reasons or gives reasons which are inadequate or untrue. It is conventional to refer to sections 92(4) and 93 for this.

 

Paragraph 13: This claim is applicable where the claimant is refused her right to be accompanied to a disciplinary or grievance hearing by a work colleague or trade union representative.

 

Except as explained, the above precedent does not cite the precise sections applicable to most of the claims. This is because the law is particularly difficult in this area and if you leave something out or get a section number wrong, it may cause problems later.

 

Variations

 

discriminatory appeal decision:  in some cases, something happens at the appeal hearing which suggests the decision to reject the appeal was also based on the claimant’s pregnancy, eg an adverse comment about the effect of the claimant’s pregnancy on her future work is made at the appeal hearing. If so, the claimant can add at the end of paragraph 7(iii) the words ‘and the rejection of my appeal’.

In most cases, however, the decision to reject the appeal is routine and based on other considerations.

discriminatory dismissal only:  in many pregnancy dismissal cases, the only discriminatory action will be the dismissal itself. Although earlier incidents may have occurred and should be referred to in the tribunal claim, they will only be supporting evidence. In such cases, the claim could be written as above, except that sub-paragraphs 7(i) and (ii) and para 9 would be omitted. Whether or not an earlier incident should be cited as a legal claim or purely as supporting evidence depends on a number of factors including (i) whether it is within the time-limit (ii) whether it stands alone as a significant incident where the claimant was treated badly on grounds of discrimination.