Precedent 1: Pregnancy dismissal
This precedent claim form deals with being dismissed when you are pregnant and covers these issues:
- unfair dismissal;
- failings in the grievance and disciplinary process;
- discrimination; and
- completing tribunal claim forms – box 8.2.
Precedent: body of claim form
- I started work for the respondent in March 2005 and I was promoted to hotel manager in August 2016. I never had any disciplinary warnings, verbal or written, throughout my employment.
- On 1 October 2016, 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.
- On 4 October 2016, 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.
- As hotel manager, I was invited to attend the Group management meetings every month. However, I was not invited to attend the meetings on 6 October 2016 and 13 October 2016.
- On 14 October 2016, Mr Venables sent me an e-mail telling me to attend a disciplinary hearing on 18 October 2016 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.
- 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 20 October 2016 was rejected on 22 October 2016.
I believe I was discriminated against on grounds of my pregnancy contrary to the Equality Act 2010:
- in the remarks made by Mr Venables to me on 4 October 2016 as set out at paragraph 3 above;
- by excluding me from the Group management meetings as set out at paragraph 4 above;
- in my dismissal.
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.
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:
- in the remarks made by Mr Venables to me on 4 October 2016 as set out at paragraph 3 above; and
- by excluding me from the Group management meetings as set out in paragraph 4 above.
Further or alternatively, my dismissal was unfair on ordinary principles under s98(4) of the Employment Rights Act 1996 because:
- 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;
- Hotel occupancy had declined through no fault of my own; it was not due to my performance;
- It was not reasonable to dismiss me for that reason.
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.
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.
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.
What is the relevant law?
Under the Employment Rights Act 1996, a dismissal can be either:
- ordinary unfair dismissal – the tribunal will look at all the facts and circumstances in coming to a decision as to whether it was unfair; or
- automatic unfair dismissal – the claimant will allege one of the automatically unfair reasons and, if this is proven, the tribunal does not need to consider anything else: the dismissal will be automatically unfair.
The hotel manager is claiming that she was unfairly dismissed. If she was dismissed due to her bring pregnant or for a reason related to her pregnancy, it will be an automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and regulation 20 of the Maternity and Parental Leave etc. Regulations 1999.
If an employer fails to follow a fair disciplinary procedure leading to the dismissal of an employee, it is likely to count against them meaning that the employee’s dismissal will be more likely to be unfair.
The hotel manager states that she was not told that she could be accompanied by a colleague to her disciplinary meeting. Section 10 of the Employment Relations Act 1999 provides that, where an employee has requested to be accompanied, an employer must allow a worker to be accompanied to a disciplinary hearing. While there is no legal obligation for an employer to inform an employee of their right to be accompanied, guidance in the ACAS Code states that the notification of a disciplinary meeting should advise the employee of their right to be accompanied at the meeting. If the employer has not made the hotel manager aware of this right, then a tribunal judge will take this into account when considering whether or not she was unfairly dismissed.
In the claim form, the hotel manager points out that she did not receive a letter or any other written document confirming the reasons why she was dismissed. This is something that employees are entitled to receive under section 92 of the Employment Rights Act 1996. Pregnant employees are entitled to receive a written statement under section 92 without having requested or and whether or not they have been continuously employed for any period.
An unreasonable failure by the employer to follow the guidance set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures may count against them if an employee should bring a tribunal claim. The core principles of the Code are:
- employers and employees should deal with issues promptly, including not unreasonably delaying meetings or decisions;
- employers should carry out any necessary investigations to establish the facts;
- employers should inform employees of the problem;
- employees should be given the opportunity to put their case before any decisions are made;
- employees should be able to be accompanied to disciplinary or grievance meetings; and
- employees should have the right of appeal.
If the dismissal is found to be unfair, the tribunal can make the following orders:
- an order for reinstatement—the employer must give the employee their former job back and compensate them for any loss of earnings suffered between dismissal and reinstatement;
- an order for re-engagement— the employer must give the employee a job comparable to his old job and compensate them for any loss of earnings suffered between dismissal and re-engagement; or
- an order for compensation
It is unlikely that an employee would want to ask for and it is unlikely that they would be granted an order for reinstatement or re-engagement.
The order most commonly made is an order for compensation which usually includes:
- a ‘basic award’—calculated in much the same way as a statutory redundancy payment and varies depending on the claimant’s gross weekly pay, their length of continuous employment before dismissal and their age; and
- a ‘compensatory award’—to compensate the employee for financial losses suffered as a result being unfairly dismissed.
The hotel manager was dismissed without notice at the disciplinary hearing. This is likely to be breach of contract and so she can bring a claim for wrongful dismissal in the employment tribunal.
Section 86 of the Employment Rights Act 1996 entitles an employee to receive a minimum of:
- One week’s notice if their period of continuous employment is less than two years;
- One week’s notice for each year of continuous employment if their period of continuous employment is two years or more but less than twelve; or
- Twelve weeks’ notice if their period of continuous employment is twelve years or more.
The hotel manager is entitled to receive whichever notice is the longer out of:
- The notice period stated in her contract; and
- The statutory notice period mentioned above.
The hotel manager is also claiming that she was discriminated against by reason of her pregnancy under section 18(2) of the Equality Act 2010. If her employer has treated her unfavourably because of her pregnancy, it will be discrimination.
The comments made by her employer in paragraph 3 and the fact that she was excluded from the group management meetings appear to be related to her having notified her employer that she is pregnant and therefore, they are likely to be discriminatory acts.
Precedent: points to consider
Paragraph 1: For most tribunal claims, the first paragraph should set out the claimant’s date of commencement of employment, the employer’s name and the claimant’s job role. Only say that the claimant has never had any warnings if this is correct.
Paragraph 2: For both unfair dismissal and discrimination claims, it is important to establish that the employer knew the claimant was pregnant and from what date. The tribunal will need to know this date and the following events in order to consider whether the dismissal or alleged discriminatory act(s) that followed were because of the pregnancy.
Paragraphs 3 – 6: Set out in clear chronological order the timeline of events. If the claimant is alleging discrimination, it is particularly important to quote as precisely as possible all adverse remarks made by the employer regarding the claimant’s pregnancy, the context in which they were made and when these remarks were made.
Paragraphs 7 – 13: Set out the law for the tribunal which supports the unfair dismissal, wrongful dismissal and pregnancy discrimination claims.
A dismissal may be fair where an employee is dismissed for one of the five fair reasons such as misconduct, incapability or redundancy. As well as having a fair reason for dismissing the employee, the employer will still need to have handled the matter fairly and reasonably. If you are at all uncertain about what law to rely on, it is best just to state that the dismissal was unfair on ordinary unfair dismissal principles under s98(4) Employment Rights Act 1996.
Take note that if the claimant believes that the employer has not acted in accordance with the ACAS Code, the claimant does not need to mention this in the claim form. If the claimant is not entirely sure about the applicability of the code, the claimant can still raise this at the tribunal hearing (when they are more sure) even if they do not mention it on their form.
If the claimant has been dismissed, a good rule of thumb is to always check that the employer has given the claimant the correct notice or payment in lieu because this is a contractual right to which the claimant is entitled. Dismissal without notice or pay in lieu is likely to give grounds for a ‘wrongful’ dismissal claim (i.e. a claim for notice pay) unless the claimant was dismissed for gross misconduct.
Think about whether any other claims might be relevant including claims for a failure to give written reasons for dismissal or a failure to allow the Claimant to be accompanied to a disciplinary or grievance hearing by a work colleague or trade union representative.
Lastly, you may also need to consider setting out other areas of employment law which may be applicable on the facts and which are not specifically relevant to pregnancy discrimination.
The 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 so it is often best to simply state the name of the relevant act without referring to the exact sections of those Acts.
Where the claimant is claiming discrimination only, in many pregnancy discrimination cases, the discriminatory act will be the dismissal itself. Although there may have been earlier potentially discriminatory acts, such as adverse comments, they may only be supporting evidence. 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; and (ii) whether it is a significant enough to be a stand-alone incident of discrimination.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.