Miss A Wolo v Lionheart Domiciliary Care Services Ltd and Mr W C Onyekwere: 2300788/2018
JUDGMENT
It is the unanimous Judgment of the Tribunal that the claimant’s claims of pregnancy related dismissal fail and are dismissed. It is also the unanimous Judgment of the Tribunal that the claimant’s claim for ‘other payments’ or deductions from wages succeeds and she is awarded the gross sum of £872.30. 15.9REASONS
[1]The claimant presented a claim form on 2/3/2018. There were two claims, one for breach of contract/unlawful deductions from wages in respect of what the clamant said was six days’ pay owed when the respondent changed its pay date and pay for the period 1-8/1/2018. The respondent agrees those sums are due to the claimant. As it however paid the claimant one month’s notice, rather than the contractual one week, it says those sums are included in that payment.[2]The other claim was a breach of s.99 Employment Rights Act 1996 (ERA) or in the alternative, a breach of s.18 of the Equality Act 2010 (EqA). The issue was whether or not the second respondent had knowledge of the claimant’s pregnancy when he dismissed her on 8/1/2018.[3]The Tribunal heard evidence from the claimant and she sought to rely upon a witness statement from a Mr Juan Ospina. Mr Ospina was unable to attend the hearing in person and therefore it was explained to the claimant that although the Tribunal could consider his statement, it could only give it little weight as he was not available to be cross-examined upon his evidence. The Tribunal heard from the second respondent, Mr Franklin Onyekwere and Ms Rosemary Onwuzuluigbo. The Tribunal had before it an agreed bundle of approximately 100-pages and documents were added by agreement at the commencement of the hearing.Findings of Fact
[4]The claimant was appointed Human Resources Officer on 12/8/2017. Her contract provides for one week’s notice (pages 66-67).[5]The claimant said she discovered she was pregnant on 30/8/2017 and said had a scan to confirm this 25/9/2017.[6]The first respondent began to experience financial difficulties in 2017. It provided evidence of this by means of statements showing salaries paid late (including to the claimant). There was also evidence that the first respondent sought assistance from RBS. The respondent had also terminated some administrative employees’ employment (page 63 and 73)[7]The claimant disputes this, she provided documents from Companies House which she said demonstrated that there were no financial difficulties.[8]The Tribunal finds that the claimant would have know of these difficulties as on occasion, she also received late salary payments. Although the first 15.9 respondent did make a profit on paper, there was evidence of cash flow difficulties, loss of a client (Waltham Forest) and minutes of meetings where finances were discussed. On balance, the Tribunal accepts there were cash flow problems at the first respondent and there were financial difficulties. Alongside that, there was the reduction in staff and as result a reduced need for HR, those were the reasons behind the respondents’ decision to terminate the claimant’s employment.[9]On 5/1/2018 the respondents’ evidence was that the directors met and discussed terminating the claimant’s employment for those reasons.[10]At 13:03 on 5/1/2018 Mr F Onyekwere emailed a draft letter of dismissal to the second respondent.[11]The claimant challenged the authenticity of this email and appeared to suggest the version in the bundle had somehow been fabricated. She based this upon formatting differences between that email and others in the bundle. She was also suspicious as she had asked for an electronic copy of the email and that had not been forthcoming from the respondent.[12]In any event, an electronic copy of the email was produced during the hearing and eventually, the claimant accepted the email was authentic.[13]It was decided not to terminate the claimant’s employment on a Friday and that the letter needed to be amended to pay the claimant one month’s notice pay (even though contractually she was only entitled to one week’s notice pay).[14]By email sent at 15:54, the claimant emailed the first respondent: ‘Good Afternoon Directors, I am writing this email to let you know that I am six months pregnant! I am very excited about my news and would like to inform you all immediately as I am aware by law I have to let you know after 20 weeks in writing! So here we have it.. it’s ironic that me and the other Director [Rosemary] are both pregnant at the same time :) I can’t wait to talk baby talk with Rosemary! I will have my Mat B1 form to hand in soon. Kind Regards’[15]The Mat B1 form was not in bundle and it was not available to the Tribunal. 15.9[16]It is the claimant’s case that between September 2017 and January 2018 she was in contact with other members of staff of the first respondent and also Rosemary and they had discussed the claimant’s pregnancy.[17]This was denied by the respondents and by Rosemary. Rosemary said the first time she learnt of the claimant’s pregnancy was when she read the claimant’s email of 5/1/2018.[18]When putting a question to Rosemary, the claimant started to reference a conversation between her and Rosemary which she said took place in September 2017. Rosemary denied there had been such a conversation. It was noted that the claimant had not referenced this conversation in her witness statement; despite it being her claim that the respondents knew she was pregnant.[19]Mr Bromige put to the claimant the tense used in the email and in the ET1. He said that it was written in the present tense – ‘I am writing to let you know… I can’t wait to talk baby talk’ etc. He said that if the Directors were aware of her pregnancy, she would have phrased the email differently. The claimant replied she had told Rosemary previously and Rosemary knew she was pregnant.[20]The Directors of the respondent were all consistent, however they are all related. The Tribunal finds the tense used in the email is strange if, as is the claimant’s case, Rosemary had already been informed of the claimant’s pregnancy. Furthermore, the same tense was used by her in the email, the ET1, the amended particulars of claim (pages 44-46) and her witness statement. There was the fact that the claimant brought up in her questions of Rosemary the occasion when she said in September 2017 she had told Rosemary she was pregnant, yet she had not mentioned this at any point previously. The Tribunal finds that the claimant had not discussed her pregnancy with any Director and had specifically not discussed it with Rosemary.[21]It is the respondents’ case that the decision taken to terminate the claimant’s employment must have been leaked to her and she (being in HR) realised that as she has not informed the respondents she was pregnant, she needed to do so; hence her email.[22]The claimant’s case is pleaded that she notified the directors of her pregnancy on 5/1/2018 and she was then dismissed by the second respondent on the 8/1/2018.[23]The claimant appealed the decision to dismiss her on 9/1/2018 and the first respondent did not offer her an appeal hearing. The explanation was 15.9 that the first respondent would not overturn to decision to dismiss and so any appeal was futile.[24]The respondents say, the decision to dismiss the claimant was taken before it had knowledge of her pregnancy and their internal emails evidence this.The Law
[25]Section 99 of the ERA provides:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— (a) the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy, (b) her maternity leave period is ended by the dismissal and the reason (or, if more than one, the principal reason) for the dismissal is that she has given birth to a child or any other reason connected with her having given birth to a child, (c) her contract of employment is terminated after the end of her maternity leave period and the reason (or, if more than one, the principal reason) for the dismissal is that she took, or availed herself of the benefits of, maternity leave, (d) the reason) or, if more than one, the Principal (reason) for the dismissal is a relevant requirement, or a relevant recommendation, as defined by section 66(2), or (e) her maternity leave period is ended by the dismissal, the reason (or, if more than one, the principal reason) for the dismissal is that she is redundant and section 77 has not been complied with.(2) For the purposes of subsection (1)(c)— (a) a woman takes maternity leave if she is absent from work during her maternity leave period, and (b) a woman avails herself of the benefits of maternity leave if, during her maternity leave period, she avails herself of 15.9 the benefit of any of the terms and conditions of her employment preserved by section 71 during that period.(3) An employee who is dismissed shall also be regarded for the purposes of this Part as unfairly dismissed if— (a) before the end of her maternity leave period she gave to her employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she would be incapable of work after the end of that period, (b) her contract of employment was terminated within the period of four weeks beginning immediately after the end of her maternity leave period in circumstances in which she continued to be incapable of work and the certificate remained current, and (c) the reason (or, if more than one, the principal reason) for the dismissal is that she has given birth to a child or any other reason connected with her having given birth to a child. Section 18 of the Equality Act 2010, Pregnancy and maternity discrimination: work cases, provides: (1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity. (2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably — (a) because of the pregnancy, or (b) because of illness suffered by her as a result of it. (3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave. 15.9(5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period).(6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.(7) Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as— (a) it is in the protected period in relation to her and is for a reason mentioned in paragraph (a) or (b) of subsection (2), or (b) it is for a reason mentioned in subsection (3) or (4). Closing submissions Respondents[26]In closing submissions, the respondents asserted there were two issues to be decided. In respect of the claim the dismissal was due to the claimant’s pregnancy; although section 99 ERA and section 18EqA were worded slightly differently, in reality there was no difference.[27]The question was at what point did the respondent know of the claimant’s pregnancy? It is not disputed she sent an email on the 5/1/2018 and the Tribunal needs to be satisfied that on balance, that was the occasion when the respondents had knowledge.[28]The wording in that email talks in the future tense. If, as is the claimant’s case, she had previously informed the respondents of her pregnancy, then she would not have used that tense. The same tense is repeated in the ET1 (page 7) and the amended ET1 (page 44). 15.9[29]The claimant gave fresh evidence at the hearing that is not in her witness statement and she was inconsistent. In her cross-examination she referred to a discussion on 18/9/2017 and in her witness statement she refers to finding out she was pregnant on 25/9/2017. On another occasion, she said the conversation had taken place on the 20/9/2017.[30]It was submitted the claimant is now seeking to bolster a weak case. It was coincidence rather than malice that the decision to terminate the claimant’s employment was taken shortly before she informed the respondents of her pregnancy.[31]The claimant at the hearing produced documentation referring to a hospital appointment and referred to the appointment in an email exchange. She did not however refer to the reason for taking the time off to visit the hospital. There was no evidence that anyone at the respondents had knowledge of her pregnancy until the email of the 5/1/2018.[32]The clamant does not have the requisite length of service to bring an ordinary unfair dismissal claim and therefore, the respondents do not have to provide a ‘fair’ reason for the dismissal. The legitimacy of the redundancy exercise or otherwise is not for the respondent to establish. It has however put forward that there was a financial reason for the redundancy. There was evidence of another employee being let go in similar circumstances and that person was sent an almost identical letter to the draft letter produced for the claimant.[33]The claim simply comes down to whether or not the respondents took the decision to dismiss the claimant before it had knowledge of her pregnancy. The mindset of the people who took that decision was that it was taken before the claimant sent her email, it therefore follows that the decision to dismiss the claimant was not linked to her pregnancy and therefore, her claim must fail.[34]The claimant’s case is that the respondents must have known she was pregnant at the material time. The witness said the claimant wore loose clothes at work and therefore, the respondents could not tell she was pregnant. Photographs which the claimant relied upon to ‘prove’ she was visibly pregnancy in December 2017 do not establish the respondents knew she was pregnant at the material time. The claimant’s initial case was clear, the letter of 8/1/2018 was sent in response to her email of 5/1/2018. Once disclosure had taken place and the respondents’ response was evidenced, the claimant should have realised her case was much weaker than she had originally thought. Claimant 15.9[35]The claimant relied upon her written submissions. In summary she said the respondents knew she was pregnant from ‘early November/December 2017’ as she had been attending ante natal appointments.[36]The claimant said as she worked in HR, she knew she had to inform the respondents she was pregnant and she did so on 5/1/2018.[37]On 8/1/2018 she was dismissed, the only possible reason for her dismissal was the fact she had formally announced she was pregnant.[38]Orally, the claimant said she did learn she was pregnant on the 30/8/2017, however it was confirmed on 25/9/2017. The reason or principal reason for termination was that she was pregnant. She was treated unfavourably because of her pregnancy. She informed the respondents she was pregnant on 5/1/2018 and the Company was obliged to read the emails on the date of receipt. She had had previous conversations with the respondents and the respondents were aware of that fact. The second respondent discusses everything with the two directors and therefore, they would have all known. A colleague was aware of her pregnancy and he told her the second respondent and directors were aware too.[39]The simple facts are, she sent an email on 5/1/2018 informing the respondents of her pregnancy and she was dismissed on 8/1/2018.Conclusions
[40]The Tribunal finds the respondents first became aware of the claimant’s pregnancy when her email was first read and not before. On the balance of probabilities, the claimant did ‘get wind’ of the respondents’ intention to make her redundant and that prompted her email of the 5/1/2018. That is also the reason for the tense used. She had not previously told Rosemary of her pregnancy and that was why she phrased the email as she did. The respondents did not have knowledge of the claimant’s pregnancy when they took the decision to dismiss her. They were on notice from when one of the Directors read the email; however they decide to proceed with the dismissal. The Tribunal find the reason for dismissal was not the fact the claimant was pregnant, but was due to the first respondent’s financial difficulties. 41.[42]At the beginning of the hearing, the claim for arrears of pay had been clarified. There was no claim in respect of a bonus, although this had been raised during the course of the hearing. The first respondent’s first draft of the dismissal letter only included the contractual week’s pay; 15.9 however that was amended to a months’ pay. The second respondent’s final dismissal letter states: ‘… we will pay the amounts due to you including a month in lieu of notice…’ [page 85][43]The Tribunal finds that this was a variation of the contract and replaced a week’s pay with one month’s; however this was in addition to the other ‘amounts due’ to the claimant. Those amounts have not been paid and the Tribunal finds they are due to her and awards her the gross sum of £373.84 for the six days following the change in pay date and £498.46 for the period she worked in January 2018.