If an employer dismisses an employee for an automatically unfair reason, then their length of service is irrelevant, and the dismissal will be unfair. Unfair dismissal for reasons connected with pregnancy fall into this category. Pregnancy is of course a protected characteristic under the Equality Act 2010, so any unfavourable treatment connected with this can give rise to discrimination claims as well.
In this week’s case, a pregnant quantity surveyor was dismissed during her probationary period for apparently failing to meet the requirements of her role. She said that she was dismissed due to her pregnancy and was discriminated against as a result.
Richardson v James Fisher Nuclear Limited
Ms Richardson worked for James Fisher Nuclear Limited as a senior quantity surveyor between September 2018 and April 2019. In reality, she did the job of commercial manager as part of a recruitment drive to form a commercial team. Her contract of employment included a probationary period of 6 months which could be extended, during which time her employment could be terminated on 1 weeks’ notice. She was provided with an induction plan that outlined her objectives and included a review form for use during probationary period meetings (which was never used).
Ms Richardson was assigned full-time to a “problem project” where the team had gone rogue, and progress was behind. There had not been a commercial manager involved in this project previously and the team did not welcome the introduction of one. A problem arose in relation to the project manager’s conduct towards Ms Richardson. Concerns were raised with him about this, and in response he raised complaints about her. In December, she left a meeting because of him shouting and using abusive language towards her. This was reported by her, and her managers seemed to know about it already. It was agreed that she could work from home in the period leading up to Christmas, and that she would take some holiday to get some space away from the project manager.
That evening, Ms Richardson’s manager sent an email to HR which covered issues such as her allegations of bullying, and allegations made by the project manager including falsifying timesheets and not completing her work. Other people had also raised concerns regarding the project manager’s conduct towards Ms Richardson. Ms Richardson’s manager had no concerns about her work and said she was short staffed and had too much work to do while sorting the team out.
After the Christmas shutdown, a meeting took place with HR. There were no formal notes of the meeting and there was a dispute about what was said. Ms Richardson said the meeting was to discuss her issues with the project manager, and that her manager referred to him as a ‘misogynistic bully’. The company said that it was to discuss Ms Richardson’s probationary period which was extended due to trust issues surrounding previous undisclosed driving convictions. Nothing was followed up in writing after the meeting.
In March 2019, Ms Richardson found out that she was pregnant and informed her manager immediately. A few weeks later, she told him she had a scan and was unable to attend a meeting with the client of the project she was overseeing. On the same day, a letter was prepared inviting her to a disciplinary hearing to consider allegations of fraud regarding her working hours and falsifying company documents. This was never sent but no one could explain why it had been prepared, in circumstances where Ms Richardson’s manager had no concerns about this.
The project team was then informed by email that Ms Richardson would be taking on additional responsibility. Ms Richardson was signed off work due to severe morning sickness and asked her manager how to “formalise” her pregnancy with the company. Ms Richardson’s manager had meetings with some junior members of the team around this time, who said they could not work with Ms Richardson and they were looking for other jobs. Her manager said this was the “straw that broke the camel’s back” and led to a conclusion that her position was untenable. He sought advice from HR on how to dismiss an employee during their probationary period, due to a “history of issues”.
Ms Richardson’s manager then had a very brief meeting with Ms Richardson to tell her that her employment was being terminated with immediate effect. No notes were provided. Ms Richardson said she was told that it “hadn’t worked out”, whereas her manager said he told her she hadn’t met her objectives, and that he had spoken to staff which formed part of his decision. Over two weeks later, a letter was sent to Ms Richardson confirming that the reason for her dismissal was her failure to meet the objectives contained within her induction plan document. Her manager later said that the real reason was her failure to prepare a report for the project, which differed from what he said in the meeting and the letter. Following her dismissal, Ms Richardson exchanged some emails with her manager about holiday pay.
Ms Richardson brought claims for automatic unfair dismissal (on the basis that the reason for the dismissal was her pregnancy), pregnancy and maternity discrimination and unlawful deductions in relation to holiday pay.
Ms Richardson’s unfair dismissal and discrimination claims succeeded. The tribunal found that she was treated unfavourably because of her pregnancy by being dismissed, and that the principal reason for her dismissal was her pregnancy, rendering her dismissal automatically unfair.
She was dismissed whilst pregnant and the decision to dismiss her was made whilst she was absent for a pregnancy-related reason (severe morning sickness). She had recently emailed her manager about her pregnancy and had been unable to attend a client meeting due to a pregnancy-related medical appointment. The tribunal found that there was a lack of consistency from the company as to the actual reasons for dismissal. The lack of meeting notes was also commented upon. The company was unable to show a non-discriminatory reason for the dismissal due to lack of evidence and subsequent inconsistencies as to reasons put forward.
Ms Richardson was awarded the sum of £185,000, including an award for injury to feelings in the upper band in the sum of £30,000, £10,000 damages for personal injury, £141,200 for damages for discrimination relating to loss of earnings and an award for accrued but untaken holiday pay.
This case is an important reminder for employers to properly use probationary periods to actively monitor employees’ performance and suitability for the role, and also addressing any performance and other concerns promptly with employees as appropriate. Notes of meetings should be taken and kept securely in case the content of discussions is subsequently disputed. The importance of a paper trail cannot be underestimated!
The employer in this case argued that it had dismissed Ms Richardson for a variety of reasons unrelated to her pregnancy, such as her performance and concerns raised by colleagues, but had no evidence to back this up and inconsistencies in the reasons given undermined its case. Clear reasons for dismissal should be set out and communicated to the employee, even for those with less than 2 years’ service.
This is particularly important where there may be issues to consider relating to protected characteristics, and employers should take care to ensure that they can show that the dismissal was for the reasons given and nothing to do with anything else, such as a pregnancy.
If you have any queries regarding this update, please contact our employment team on 01228 552600 or 01524 548494.
This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.