Ms Y Khimicheva v Key Promotions (UK) Ltd: 2304738/2019
EMPLOYMENT TRIBUNALS
Case No 2304738/2019
Between
Ms Y KhimichevaClaimantKey Promotions (UK) LtdRespondent
Before
Employment Judge StreetIn person for claimantDate 27 January 2021
JUDGMENT
In the judgment of the Tribunal, the claimant, Ms Khimicheva, was unfairly dismissed and subject to discrimination contrary to the Equality Act 2010 by the respondent, Key Promotions (UK) Ltd because of her pregnancy.
REASONS
Discussion
[1]Evidence 1.1. The Tribunal heard from the claimant Ms Khimicheva and from Mrs Edwards, Personnel Manager. 1.2. The Tribunal read the documents provided.[2]Issues 2.1. The claimant claims automatically unfair dismissal and discrimination because of pregnancy. 2.2. The issues before the Tribunal to decide were identified in the Order of 27 April 2020 as follows: (1). Does the claimant prove that the reason or principal reason for her dismissal on 26 July 2019 with effect from the 2 August 2019 related to her pregnancy, notified to the respondent on 16 July 2019? (2). Alternatively, does the claimant prove facts from which the tribunal could reasonably conclude that the claimant’s dismissal was materially influenced by her pregnancy or the illness suffered by her because of it? (3).If yes, does the respondent prove that the reason for her dismissal had nothing to do with her pregnancy, but because she had failed her probationary period following poor performance unrelated to her pregnancy? 2.3. It was recorded in that telephone hearing on 27 April 2020 that the claimant agreed that she told the respondent of her pregnancy on 16 July, but in her evidence her case was that she first told the respondent of her pregnancy on around 9 July. That is not agreed. 2.4. The respondent’s case is that the reason for her dismissal was because she failed her probationary period, in particular after its extension on the 23 of May 2019 and after warnings about her performance. The dismissal was for reasons preceding and unconnected with her pregnancy.[3]Findings of Fact 3.1. The claimant was employed by the respondent from 13 March 2019 as a magazine finisher. 3.2. The respondent is a company that packs books and magazines. 3.3. Mrs Edwards is responsible for recruitment, induction, training, attendance and management of all staff. 3.4. All new staff are subject to a probationary period of 12 weeks. 3.5. This is what the Employee Handbook says about that. “An initial informal review will take place after 6 weeks with your line manager, with a formal review after 12 weeks. Your appointment will be confirmed on satisfactory completion of the 12 week period. During this probationary period, you will be given appropriate support and development opportunity to help you reach the required standards. Extension of the probationary period may be granted to enable the required standards to be achieved but failure to do so could result in termination of your employment.” (Employee Handbook, page 6). 3.6. The records produced are the annotations on the Training Performance Review Sheets and a Communications Record. There is no separate record of any review of the probationary period and the records seen do not show a review after 6 or 12 weeks. There is no record of any decision to extend the probationary period or of it being notified in writing to Ms Khimicheva. 3.7. Ms Khimicheva’s probationary period, if not extended, ran from 13 March 2019 to 5 June 2019. (Ms Khimicheva’s understanding was that it ran to 12 June 2019). 3.8. The contract sets out the following in relation to the termination of employment. “After successful complete of your probationary period, the prior written notice required for you or the company to terminate your employment shall be in the notice set out below: Length of Service Notice Period Under 12 weeks of service Nil 12 weeks of service but less than 2 years 1 week….” The Training Performance Review Sheets 3.9. Ms Khimicheva had weekly reviews of her performance carried out by Mrs Edwards. 3.10. In week ending 10 May 2019, the Training Performance Review Sheet is annotated, “Julie tries hard to achieve. Attendance very good” 3.11. The comments on the Training Performance Review Sheet include that her figures were below standard in week ending 24 May 2019 3.12. On the Communications Record for Ms Khimicheva, Mrs Edwards noted, on 23 May 2019, (scan 4252) “Performance does need to improve…….Still within probationary period” 3.13. The only later note on the Communications Record is dated 26 July 2019. 3.14. In week ending 31 May 2019, the comment on the Training Performance Review Sheet is, ““Have explained to Julie her figures are too low and we need to see some improvement. Documented on Communications sheet” (scan 4256) 3.15. There is no new entry on the Communications Record but against the reference to that Record on the Training Performance Review Sheet, the date 23//05 is added, cross referencing to the note referred to of 23 May. 3.16. In week ending 21/06/19, the comment on the Training Performance Review Sheet is, “Julie’s figures have dropped compared to figures in 12 week period”. (scan 4259) 3.17. Ms Khimicheva was absent from work through sickness for the first time on 25 June 2019, save for leaving work partway through the working day on 1 May 2019. 3.18. In week ending 28 June 2019, Ms Khimicheva had two days off sick. 3.19. In week ending 5 July 2019, the comment is “need to see improvements”. 3.20. In week ending 12 July 2019, the comment is “still unacceptable.” Lower on the same Training Performance Review Sheet a couple of lines below Ms Edward’s signature is one word with a large asterisk - , “finish” 3.21. Mrs Edwards says that that is when she made the decision to terminate employment. It is in that week that Ms Khimicheva says she told Mrs Edwards of her pregnancy. 3.22. In week ending 19 July 2019, the note on the Training Performance Review Sheet is “16th Julie has said she is pregnant. Risk assessment done. Copy to her file. Went home 16th worked two hours.” 3.23. In that week, Ms Khimicheva was off work through sickness on 15 July and for the balance of the week after going home during the working day on 16 July 2019. 3.24. The risk assessment of 16 July 2019 carried out by Mrs Edwards acknowledges the pregnancy and dealt with safety, lifting and the provision of a chair if needed. It is said to be a short version and that there was a fuller version prepared the same day. It says, “I have explained that it is also as much her responsibility to make sure her working area is kept clear for her….. I have said to ask for help when needed, she has a chair which is available on request. I have informed all supervisors and strappers that she may need help and to offer this when asked. Lifting of Boxes etc” 3.25. Mrs Edwards says that having decided to dismiss Ms Khimicheva, she spoke to Mr Sells on 18 July 2019 and asked his view “given that we had now received notification of pregnancy”. She reports that he told her that, “If I had made the decision to terminate before this then there is no reason to change that decision and it should stand.” 3.26. In week ending 26/07/19, Ms Khimicheva had two days off sick, 24 to 25 July. 3.27. On 26 July, Mrs Edwards spoke to Ms Khimicheva and told her she was being dismissed. She says she first told her on 22 July. 3.28. The comment on the Training Performance Review Sheet is, “Julie’s attendance over recent weeks a concern. Need to monitor. Have spoken to her and said the reasons why this extension is not working issued letter” (scan 4264) 3.29. On 26 July 2019, Mrs Edwards recorded on the Communications Record the following, “Spoke to Julie regarding her Performance and production and have looked at this and feel the job is not suitable for her or suitable for the company. Have give her one week notice of which she wants to work so will finish 2 August.” 3.30. By a letter dated 26 July 2019, Mrs Edwards wrote to Ms Khimicheva as follows, “Dear Y Khimicheva Payroll Number 2575 Following our discussion regarding your Production and Attendance of late. Before you reached your 12 week Probationary Period I spoke to you on 23rd May -19 As your production was lower than it should be after such time your attendance started to fall behind as a result being very busy with work and your continued absence I have decided this job is not Working for you or for the Company so as of today 26th July – 19 I will give you one Weeks notice to work of which Friday 2nd August will be your last working day any money owed to you along with any holiday pay if owed will be paid to you on the next pay period 23rd August 019 your P45 will be posted to you to the address we have on file. Please do not hesitate to speak to me if you have any questions.” Absences 3.31. The following are the self-certified absences, also recorded on the Training Performance Review Sheets: 25 June 2019 28 June 2019 15 July 2019 16 July (part) to 19 July 2019 inclusive 24 and 25 July 2019 3.32. That is in addition to the day when Ms Khimicheva went home sick for part of the day, 1 May 2019, the only earlier sickness absence.[4]Law 4.1. The Claimant claims automatically unfair dismissal and pregnancy discrimination. 4.2. Section 86 of the Employment Rights Act 1996 (“the ERA 1996”) sets out minimum periods of notice. After employment for one month or more, the minimum period is at least one week. 4.3. ACAS publishes both a Code and Guidance on handling disciplinary matters in the workplace. They include guidance handling performance issues and absences fairly. Unfair dismissal 4.4. By Section 99(1) of the Employment Rights Act 1996 (“the ERA 1996”), “An employee who is dismissed shall be regarded …. as unfairly dismissed if –(a) the reason or principal reason for the dismissal is of a prescribed kind, or(b) the dismissal takes place in prescribed circumstances. 4.5. Such a dismissal is regarded as automatically unfair. 4.6. By section 99(3)(a), for the purposes of section 99, a prescribed reason or set of circumstances includes those related to pregnancy. 4.7. By regulation 20 of the Maternity and Parental Leave etc Regulations 1999, (“the MPL Regulations)”, where the reason or principal for dismissal is one connected with the pregnancy of the employee, an employee will be regarded as unfairly dismissed under section 99 (reg 20(1) and (3)(a)). 4.8. “Connected with her pregnancy” in reg 20(3) is wide and covers pregnancyrelated illness. 4.9. For a claim of automatically unfair dismissal for a reason connected with pregnancy under Regulation 20(3)(a) to succeed, the employer must know or believe that the woman is pregnant. 4.10. Once it is found that the reason for dismissal is an inadmissible reason, there is no room for the employer to argue that the dismissal was nonetheless reasonable in all the circumstances and therefore fair. 4.11. Ordinarily a claim for unfair dismissal can only be brought after at least two years continuous service. That does not apply for automatically unfair dismissal because of or related to pregnancy. In such cases, there is no minimum service requirement. The Tribunal has jurisdiction to consider unfair dismissal without any requirement that the employment had lasted at least two years. 4.12. Where the claimant does not have two years’ continuous service, the burden of proof is on her to show that the claim falls within the Tribunal’s jurisdiction – that is, that the usual rule in respect of two years’ service does not apply. So it is for the claimant to prove that the reason or principal reason was the pregnancy or related to the pregnancy (Smith v Hayle Town Council 1978 ICR 996 CA). 4.13. In relation to unsatisfactory performance, the ACAS Code requires a written warning with details of the poor performance and of the change required, including the timescale for it. There should be a warning of the consequences of failing to improve, with usually a final written warning before dismissal. An employee should be given the right to have someone with them at any disciplinary meeting, and to have advance warning of the problem. The employee should be informed of their right of appeal. 4.14. Appendix 4 of the ACAS Guide contains guidance on handling absences. Unexpected absences should be investigated promptly, and the employee asked to explain them. In all cases, the employee should be told what improvement in attendance is expected and warned of the likely consequences if that does not happen. Pregnancy discrimination 4.15. By section 18(2) of the Equality Act 2010 (“the EA 2010”), “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.” 4.16. The protected period begins when the pregnancy begins and continues until after the end of the pregnancy (s18(6)). 4.17. No comparator is needed. The test is whether the treatment was unfavourable rather than less favourable. Burden of proof 4.18. By section 136(2) and (3) of the EA 2010, the test in respect of the burden of proof is set out, including how the burden of proof may pass from the claimant to the respondent: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.” (3) But subsection (2) does not apply if A shows that A did not contravene the provision.’ 4.19. That applies to any proceedings relating to a contravention of the EA 2010. It applies in respect of any breach, so the caselaw may refer to different kinds of discrimination and still afford guidance in general on the approach to the burden of proof. 4.20. The provision in relation to the shifting of the burden of proof is explained in the Code of Practice on Employment (2011) (“the Code”) prepared by the Equality and Human Rights Commission. That is a statutory Code to which Tribunals must have regard. 4.21. The operation of the change in the burden of proof is set out in the Code at para 15.34: “If a claimant has proved facts from which a tribunal could conclude that there has been an unlawful act, then the burden of proof shifts to the respondent. To successfully defend a claim, the respondent will have to prove, on balance of probability, that they did not act unlawfully. If the respondent’s explanation is inadequate or unsatisfactory, the tribunal must find that the act was unlawful.” (emphasis added) 4.22. For the burden of proof to shift, the claimant must show facts sufficient to enable the tribunal to find discrimination –that is, without the explanation referred to. Then it is for the respondent to prove that there was no discrimination. 4.23. Guidelines on the application of the shifting burden of proof were given by the Court of Appeal in the case of Barton v Investec Henderson Crosthwaite Securities Ltd [2003} and those guidelines, as amended in the Igen case (Igen v Wong, 2005 IRLR 258, CA, (“Igen”)), remain the basis for applying the law notwithstanding the re-enactment of discrimination legislation in the 2010 Act. It is those guidelines that establish the two-stage test, “The first stage requires the complainant to prove facts from which the Employment Tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld (Peter Gibson LJ, para 17, Igen) 4.24. In the case of Hewage v Grampian Health Board [2012] UKSC 37, the UK Supreme Court approved the application of the Barton/Igen guidelines to cases under the Equality Act 2010. At paragraph 33, Lord Hope, on the burden of proof provisions, says, “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence…” 4.25. That means that the cases decided on this before the EA 2010 apply to the interpretation of section 136. 4.26. In Laing and Manchester City Council and others [2006] IRLR 748, the correct approach in relation to the two stage test is discussed, “No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case…. (para 73) The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race (or other) discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, ‘There is a nice question as to whether the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’. 4.27. The nub of the question remains why the claimant was treated as he or she was: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” (Madarassy v Nomura International plc) 2007 IRLR 246). 4.28. The presence of discrimination is almost always a matter of inference rather than direct proof – even after the change in the burden of proof that is now in section 136, it is still for a claimant to establish matters from which the presence of discrimination could be inferred, before any burden passes to his or her employer. 4.29. In drawing inferences, an uncritical belief in credibility is insufficient’ as Sedley LJ pointed out in Anya v University of Oxford 2001 IRLR 377 CA (paragraph 25). It may be very difficult to say whether a witness is telling the truth or not. Where there is a conflict of evidence, reference to the objective facts and documents, to the likely motives of a witness and the overall probabilities can give a court very great assistance in ascertaining the truth.[1]The respondent applies for reconsideration of the judgment issued on 20 February 2021.[2]The application for reconsideration is on the following grounds: that the Tribunal reached the wrong decision because,• the Tribunal overlooked relevant evidence• the reasoning is based on incorrect assumptions• the video link hearing was rushed and alien• Tribunal relied on Ms Edwards who was not prepared for the questions put, instead of Mr Sells.[3]The evidence now put forward was before the Tribunal. It was not overlooked.[4]The respondent argues that the GP assessment dated 15 July 2019 contradicts the dates relied on by the claimant that she notified the respondent of her pregnancy on 9 July 2019.[5]The judgment does not simply rest on a finding that the claimant notified the respondent of her pregnancy on 9 July 2019. That element in the application is based on a misreading of the judgment.[6]The “incorrect assumptions” on which the basis of which the Judgment has been challenged have not been identified. It is not clear where the Judgment is said to rest on facts unsupported by evidence.[7]The hearing had been listed in the Case Management Order of Employment Judge Hargrove for two days, originally to be heard on 19 and 20 October 2019. That was converted to a Cloud Video Platform hearing on 9 October 2020. It was then postponed.[8]It is up to the parties to put the evidence they rely on before the Tribunal panel, in accordance with the Orders given. The Order in respect of the bundle was that it was to be provided to the claimant by 22 June 2020 and to the Tribunal on the first day of the full hearing.[9]The Order referred the parties to the Presidential Guidance – General Case Management with a link to the Guidance online. The Presidential Guidance sets out that the bundle is not to be provided to the Tribunal in advance of the hearing unless requested. Here, it was not requested.[10]Mr Sells had provided the Courts and Tribunals Service (“HMCTS”) with a bundle in June 2020, for the hearing in October. He had not understood the Order given.[11]He indicated by email on 20 January 2021, “Please note the respondent has previously provided all parties with a document bundle and will not be supplying electronic versions of this.”[12]The bundle provided was no longer available, in spite of a search being made, it not being the practice of the HMCTS to store documents for pending cases on behalf of the parties.[13]He was not able to provide the panel with an electronic bundle at the start of the hearing. He had not asked the Tribunals Service to convert the bundle he had earlier provided to an electronic bundle.[14]The claimant had sent by email the documents she relied on.[15]Much of the first day allocated to the hearing was effectively lost while the documents were emailed by Mr Sells to HMCTS individually and largely unidentified, from which the Tribunal compiled the bundle. There was then a difficulty with the internet connection. The hearing was stopped at 3.15 pm, to allow for the compilation of the bundle and panel reading.[16]Neither party wanted a further postponement, the hearing having been deferred already by reason of the Covid-19 pandemic.[17]Oral evidence was taken on the second day and deliberations and judgment on the merits of the claims reserved with remedy deferred to a later date, should the claim be successful. Both parties had the time they needed to complete cross-examination and re-examination and the Tribunal Panel had the time needed to ask questions. The original time estimate of two days would have included time for reading, deliberations, judgment and remedy. Given the measures taken, the hearing was not rushed; the same amount of time was available for oral evidence.[18]It is for the parties to decide who they need to give evidence in support of their case at an Employment Tribunal hearing.[19]The Case Management Order of 27 April 2020 sets out that any witness relied on must provide a witness statement and that the witness statement must contain in numbered paragraphs and in date order all of the information which the witness wishes to give to the tribunal.[20]There was no limit imposed on the length of the witness statements and no limit on the number of witnesses each party might call.[21]The Presidential Guidance contains further guidance on witness statements.[22]The Respondent provided a witness statement for Ms Edwards. Ms Edwards was the manager who had dismissed the claimant.[23]No witness statement was provided for Mr Sells.[24]Mr Sells represented the Respondent at the hearing. He was asked if he was giving evidence and he said he was not. He said he would answer any enquiries that the Tribunal had.[25]The Tribunal proceeded on the basis that the Respondent was calling only Ms Edwards. Mr Sells did not seek to give evidence himself. He made a submission at the conclusion of the evidence.[26]There was no challenge at the time to the procedure the Tribunal adopted at the hearing.[27]It is accepted that a hearing by Cloud Video Platform is a recent introduction and that this had been necessary because of the Covid-19 pandemic. The parties had consented to the hearing proceeding on that basis and did not seek during the hearing that the case be deferred until a face-to-face hearing was practicable. Both parties wished the case to proceed without delay.[28]It was consistent with the Overriding Objective at paragraph 2 of Schedule 1 of the Employment Tribunals (Rules of Procedure) Regulations 2013 to proceed on that basis. Breaks were taken and the inexperience of both parties with such proceedings and such a method of conducting the hearing was taken into account.[29]The application is refused pursuant to Rule 72(1) because there is no reasonable prospect of the original decision being varied or revoked on the grounds set out. JUDGMENT on REMEDY Judgment having been given on 27 January 2021 that the Claimant, Ms Khimicheva, was unfairly dismissed and subject to discrimination because of her pregnancy, the Respondent is ordered to pay Ms Khimicheva the sum of £14,820.17 in respect of the unfair dismissal and discrimination. The basis of the calculation is set out below. Unfair Dismissal Loss of statutory rights £250 250.00 Breach of ACAS Code x 25% 62.50 Total Unfair Dismissal Award 312.50 Discrimination Injury to feelings 4500.00 Financial losses to 14/09/20 – figures agreed by parties. Loss of earnings 5459.65 Loss of maternity pay 6496.09 Total 11,955.74 Less maternity allowance 5856.48 Net financial losses 6099.26 Loss from 15/09/20 and future loss: nil Losses thereafter not attributable to dismissal Total discrimination award before adjustments 10,599.09 Case No: 2304738/2019 Adjustments to Discrimination award before adjustments 10,599.09 Breach of ACAS Code uplift 25% 2,649.77 Subtotal 13,248.86 Interest at statutory rate of 8% 1,258.81 Total Discrimination Award 14,507.67 Grand Total, discrimination and unfair dismissal 14,820.17 Note: This has been a remote hearing to which the parties have consented. The form of remote hearing was an audio hearing by telephone. A face to face hearing was not held in the interests of justice to avoid delay and in accordance with the overriding objective to minimize expenditure on time and costs.