Miss A Hayler v M Meyer and D Dior T/a Beachcombers: 2306228/2023

EMPLOYMENT TRIBUNALS

Case No 2306228/2023

Between

Miss Abigail HaylerClaimant

Michelle Meyer and Deborah Dior t/a BeachcombersRespondent

Before

Employment Judge E Fowell

Date 19 June 2025

JUDGMENT

The unanimous decision of the Tribunal is as follows:

[1]The complaint of discrimination on grounds of pregnancy and maternity is upheld.

[2]The claimant’s dismissal was unfair on the basis that it was connected to pregnancy, contrary to section 99 Employment Rights Act 1996.

[3]The claimant is awarded compensation for discrimination as follows: Financial loss:(a) Agreed financial loss £4,060

(b) ACAS uplift (25%) £1,035 Sub-total £5,075

(c) Interest on the above £378 Page 1 of 13 Financial loss: £5,453 Non-financial loss: (a) Injury to feelings (10% of middle band) £13,450 (b) ACAS uplift (25%) £3,363 Sub-total £16,813 (c) Interest on the above £2,502 Sub-total for non-financial loss £19,315 Total compensation for discrimination: £24,768

[4]The claimant is awarded further compensation for unfair dismissal as follows: (a) Basic Award £100

[5]The total compensation awarded for both claims is therefore £24,868.

[6]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply as the compensation is awarded for discrimination and any benefits received have been taken into account in assessing that sum.

REASONS

[1]These written reasons are provided at the request of both parties.

[2]By way of background Miss Hayler worked at the respondent’s salon as a apprentice hairdresser. She became pregnant and shortly after making this known she was made redundant. She says that this was discrimination on grounds of pregnancy and maternity. There are in fact two legal claims here:(a) one under section 18 of the Equality Act 2010, discrimination on grounds of pregnancy and maternity, and

(b) one under section 99 Employment Rights Act 1996, which makes a dismissal for family reasons automatically unfair.

[3]The detailed issues to be decided were set out in the case management orders made at the preliminary hearing on 21 August 2024 and we will work through them in due course. Page 2 of 13 Procedure and evidence

[4]We heard evidence from Miss Hayler, her mother Ms Zoe Eagle, and the two respondents, Ms Deborah Dior and Ms Michelle Meyer. There was also a bundle of 277 pages, much of which involved payment records, bank statements and accounts. There were also a number of WhatsApp messages between the parties and some transcripts of their conversations.

[5]Having considered this evidence and the submissions on each side we make the following findings of fact. Not every point is dealt with, only those necessary to deal with the issues in the list of issues and to support our conclusions. Where other individuals are mentioned, such as those who are not witnesses or closely involved in the case, we will just give their first name.

Findings of Fact

[6]Ms Dior and Ms Meyer have been running this hairdressing salon in Bexhill since 1999. They accepted that it was generally busy but say that it had serious financial problems in 2023, at around the time that Miss Hayler told them that she was pregnant.

[7]Miss Hayler was born in September 2005 and was only 14 when she began a Saturday job there. Her first trial shift was in March 2020, just before the first Covid lockdown, but she was able to work more regularly from the end of that year and in August 2022 she began an apprenticeship with them. The contract itself [63] is dated 28 August 2022. The aim was for her to complete her Level 2 Hairdressing qualification and to that end she was working in the business for 40 hours a week with two days a month at college. The apprenticeship was due to end on 24 June 2024. Given her age (16 at the outset) and her status as an apprentice the hourly rate was just £4.81 per hour.

[8]Like many businesses the salon struggled during Covid. There was a further blow when one of their key members of the team, Fern, left to have a baby and did not return. That was in November 2022. As is common in the hairdressing industry Fern had worked on a self-employed basis, contributing 50% of her takings to the business, so her efforts made a significant contribution. By then Ms Hayler had started her apprenticeship so there was essentially just her, another self-employed colleague called Shelley, Ms Meyer and Ms Dior working in the business.

[9]Unfortunately both Ms Meyer and Ms Dior had significant health problems. They had in fact been receiving treatment for breast cancer for a number of years.

[10]They have an accountant and short form annual accounts are drawn up each year. We have the accounts for the financial years to April 2021, 2022 and 2023, but not to April 2024, which would cover the period in which Miss Hayler was made redundant. Page 3 of 13

[11]Those accounts show very modest net profits in the year to 2020, i.e. before Covid, of about £21,000. That was little different the following year and it took a further dip to under £18,000 by April 2022. By April 2023 it had increased again to £24,000. During this period Ms Meyer and Ms Dior were absent from the business from time to time on health grounds but they continued to draw a salary which meant that the balance sheet was increasingly negative.

[12]On 24 July 2023 Miss Hayler found that she was pregnant. This was unexpected news, and at just 17 it was a huge issue for her to deal with. The next day at work she told Ms Dior about it. They had a good relationship, as she did with Ms Meyer, and the two of them had a general discussion about what to do for the best. No doubt Ms Dior was also thinking about where it would leave the business and it would have been difficult to know what to say for the best.

[13]Miss Hayler’s recollection of that conversation in her witness statement was that Ms Dior said something about tablets as a way of ending the pregnancy but when asked about this in evidence she accepted that she may have mentioned this herself or it might have been Shelley, who must also have been part of the discussion. On that basis we do not find on balance that this complaint is made out.

[14]Ms Dior passed on the news to Ms Meyer. When she came in to work on 27 July she raised it with Miss Hayler. There is some dispute about what was said in the course of that conversation but Ms Meyer accepted that she told Miss Hayler that she was too young to have a baby, which was not a supportive comment.

[15]We accept too that Ms Meyer told her that she had not thought about the business, that when she returned to work it would have to be full-time and also that she would need to repay the £1000 cost of the apprenticeship. These comments were relayed by Miss Hayler to her mother and they feature in the subsequent discussions she had with the two managers.

[16]For example, the point about having to return full-time is referred to in one of the later recorded telephone conversations [227]. There was also a cost involved for the training days at the college and obtaining the Level 2 diploma. The college must have had an agreement with the salon and although we have not seen that we have seen the apprenticeship agreement. That contains a clause entitling the salon to recover those costs from Miss Hayler, a clause which would not be necessary if the salon was not liable to pay. In fact the first response form [259] stated: “Abigail’s attendance and coursework at college was low and causing us concern if she didn’t pass as we would not be liable for £1000 if she failed.” Page 4 of 13

[17]The word ‘not’ makes little sense in that context and we take this to mean that the respondents were concerned that they might be left liable for the money, which in turn makes it all the more likely that they would have mentioned it or some such comment to her.

[18]Overall therefore we are satisfied that these comments are made. They are of a consistent theme and the account given by Miss Hayler and her mother has also been consistent, and some of them are documented or admitted.

[19]It is also alleged that there was some change in the atmosphere at work from then on. That is hard to judge. It is very difficult to date a change in atmosphere and the fact is that the announcement of her pregnancy was not a matter of immediate celebration on her part. There is a specific complaint that she was no longer involved in work social events but the only event we heard about was a trip to Brighton which Ms Meyer and Ms Dior told us was with a mutual friend and not work-related. On balance therefore we cannot identify any particular unfavourable treatment under that heading.

[20]No pregnancy risk assessment was carried out for the simple reason that Ms Meyer and Ms Dior were simply unaware of that obligation. On 1 August, a week after disclosing her pregnancy, Ms Meyer and Ms Dior had a meeting with Miss Hayler at work and told her that her hours were going to be reduced from 40 per week to 30. They told her for the first time that the salon was facing financial issues. We take from this that both partners were already concerned about the financial impact of the pregnancy.

[21]Miss Hayler relayed this to her mother who contacted the salon on her behalf to dispute the fairness of this treatment. She asked for a copy of the contract and arranged to discuss things by telephone at 5 pm on 8 August. Given her concerns about what was going on she decided to record that meeting so we have a transcript [223].

[22]It lasted about six minutes and Miss Hayler was also on the call. Nothing more was said about a reduction in hours. Instead, at the outset, Ms Dior simply announced that there were going to have to make Miss Hayler redundant. Both Ms Meyer and Ms Dior emphasised that “We have no money. No money” [223]. They offered to disclose their bank accounts which showed that there was only a pound in it and Ms Dior stressed that “it’s not the pregnancy, it’s the financial aspect”. She referred to having received a massive bill of over £2000 [225].

[23]They had indeed received such a bill from the landlord on 25 July, the day on which Miss Hayler disclosed her pregnancy. That invoice is at page 97. It is calculated as 10% of the rent and described as a tenant charge covering the period from 3 June 2020 to 19 May 2023. It follows that although it is a substantial amount it ought not to have been a surprise. Page 5 of 13

[24]Later that day Miss Hayler received a letter confirming her redundancy [84]. It made no reference to her pregnancy, just the financial position, and stated that her employment would end on 5 September 2023. There was an offer of help with finding any other possible opportunities and added that “the government covers the apprenticeship for up to 12 weeks, which should not pose an issue considering your desire to be completed by December.”

[25]The next day Miss Hayler and her mother contacted Shelley, the self-employed stylist, by video. As before, the conversation was recorded without Shelley being told. It lasted about 15 minutes [229]. Given that it was simply a conversation between Miss Hayler and a supportive colleague it has little direct relevance except to say that Shelley agreed that this was very unfair treatment but also that the salon had been struggling to pay Miss Hayler all the time, despite the government support for apprentices.

[26]Miss Hayler took some advice and submitted an appeal which led to a meeting on 15 August. However, as Ms Dior frankly admitted in her evidence, the outcome was predetermined and they felt they had no option but to dismiss. The outcome letter is dated 14 August 2023, the day before the meeting, and simply repeats the financial reasons for the decision [88].

[27]After Miss Hayler’s contract came to an end the two partners did employ someone else, Ava, to work for them on Saturday mornings but otherwise they had to cover the work that Miss Hayler had been doing between them. Applicable Law and Conclusions Discrimination

[28]The test of discrimination under section 18 Equality Act 2010 is as follows: (2) A person(a) (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. ...

[29]The key question here is why the employer acted as it did. Was it, in this case, because of Miss Hayler’s pregnancy? That does not have to be the only reason, or even the main reason, it just needs to have been a significant influence: Nagarajan v London Regional Transport

[1999] IRLR 572

, HL.

[30]Having heard the evidence from each side and made our findings of fact, we have to decide whether the proper inference to draw is that there was such conscious Page 6 of 13 or unconscious bias at work; in other words, whether it was, in this sense of being a significant influence “tainted by discrimination’.

[31]The Equality Act gives us a structure to follow in carrying out that exercise. Section 136 deals with the burden of proof. It provides that: (2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[32]So we first have to decide from all the evidence whether there might have been discrimination involved. If so it is then for the respondent to satisfy us that there was not. If that happens ‘cogent evidence’ is required to show that the treatment in question was ‘in no sense whatsoever’ tainted by discrimination. Those principles were established by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] I.C.R. 1205 and approved by the Court of Appeal in Igen & Ors v Wong

[2005] ICR 931

(‘the Igen Guidance”).

[33]On the facts of this case that is not a very difficult exercise. It seems to have been assumed on the part of the respondents that financial hardship is enough to excuse discrimination but that is not the case. These legal protections for pregnant employees exist because of the financial cost to businesses involved in having members of staff off work for a significant period of time and the need for maternity pay. If employers were able to say that they have every sympathy for the individual employee but that it was simply not in the best interests of the company to pay them during their absence then the statutory protections would be useless. That applies just as much where a company is in financial difficulties as at other times. There is no question of justification in cases of discrimination on grounds of pregnancy and maternity or of any balancing exercise. The only question is whether the decision was tainted with discrimination, and if the rationale for the decision was the financial cost to the business of the pregnancy then discrimination is made out.

[34]A similar case arose recently in Alcedo Orange Ltd v Mrs G Ferridge-Gunn

[2023] EAT 78

. The Employment Appeal Tribunal held: “This case involves a scenario that many employment lawyers will have encountered at some point in their careers. A woman tells her employer the good news that she is pregnant. A few days later she is told the bad news that she no longer has a job. Page 7 of 13 … Just because one thing follows another, it does not necessarily mean that the latter was caused by the former. That said, the fact that a woman is dismissed shortly after telling her employer that she is pregnant often provides compelling support for an inference of discrimination to be drawn.”

[35]On any view therefore the burden has to shift to the respondents to show that this was not discrimination on grounds of pregnancy and maternity. That applies not only to the decision to dismiss but to the other alleged acts of discrimination here, which comprise the following, as set out at paragraph 9 of the list of issues [32]. Summarising them, to the extent that they have been upheld:(a) Ms Meyer’s comment that Miss Hayler was too young to have a baby;

(b) Ms Meyer’s statement ‘you haven’t thought about the business’;

(d) Ms Meyer saying that she might have to repay £1,000 in costs;

(e) reducing her hours; then

(f) dismissing her.

[36]To be clear, we do not uphold the allegation about the use of tablets to end the pregnancy or that she was excluded from social events. With regard to the failure to conduct a risk assessment we are satisfied that the respondents were simply not aware of that obligation and so no further explanation is called for.

[37]However the key complaint is about the dismissal and the other allegations are largely by way of background. Having concluded that the burden shifts to the respondent, cogent evidence is required that the decision was in no sense whatsoever tainted by discrimination.

[38]Focusing on the decision to dismiss, the only basis on which that could be unrelated to pregnancy is if a decision had already been made to end her employment for financial reasons but the evidence falls far short of that. Although we have the invoice dated 25 July 2023 there is no suggestion of any discussions about ending her employment that day. There is also conflicting evidence about when the financial downturn of the business began - whether it was in November 2022 as stated in the initial response drafted by the respondents themselves, or in April 2023 as stated in the Grounds of Resistance later drafted by Peninsula. And as already noted, the accounts for the year in question have simply not been provided. Page 8 of 13

[39]More significantly perhaps, if there had been any prior decision to terminate Miss Hayler’s employment it makes no sense to try to cut hours a week after the announcement of her pregnancy. On the contrary all of the evidence points to increasing concern on the part of the respondents about the financial costs of the pregnancy and increasingly drastic action on their behalf. Overall therefore the respondent has not discharged the burden in respect of any of these complaints and they are upheld. Automatically unfair dismissal

[40]Very similar considerations arise in relation to the alternative claim of automatically unfair dismissal. The legal test is as follows: 99. Leave for family reasons.(1) An employee who is dismissed shall be regarded for the purposes of this Part 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.

(2) In this section 'prescribed' means prescribed by regulations made by the Secretary of State.

(3) A reason or set of circumstances prescribed under this section must relate to— (a) pregnancy, childbirth or maternity, ...

[41]That does not explain what the prescribed circumstances are, but that is covered in Regulation 20 of the Maternity and Parental Leave Regulations 1999, which provides: "20—(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if— (a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or …. (3) The kinds of reason referred to in paragraphs (1) and (2) are reasons connected with— (a) the pregnancy of the employee; ... Page 9 of 13

[42]Arguably the test here is an even looser one. All that has to be shown is that the dismissal was for reasons connected with the pregnancy. The burden of proof provisions do not apply but it follows, given our clear views on the connection between the respondents’ financial position and the decision to dismiss Miss Hayler, that we are quite satisfied on balance that the principal reason was connected with her pregnancy. For all of the above reasons the claims are upheld. Compensation Financial Loss

Compensation

[43]Turning to the assessment of compensation the first item is the extent of financial compensation, which the parties helpfully agreed in the sum of £4,060. That mainly covers losses in the period to 24 December 2023 when Miss Hayler obtained maternity allowance, largely mitigating her immediate losses. Acas Code

[44]An award of up to 25% can be made in addition for failure to follow the ACAS Code of Practice in respect of the dismissal. We heard brief submissions on this issue, and the respondents submitted that the full uplift should not be made on the basis that they were a small firm, with no source of advice and had not been aware of the process to follow. We did not think that was a satisfactory argument. The ACAS Code exists to provide a basic minimum standard of fairness for all employees, regardless of size. An employee has the right to expect to be heard before any dismissal, to have some notice of a meeting, to be able to discuss the reasons and then have a right of appeal. Information to that effect is widely available. Nor is their any justification for agreeing to hold an appeal meeting but preparing the outcome letter in advance. That meeting added nothing to the fairness of the process and so we were satisfied that a 25% uplift was appropriate. On that basis the financial losses increase from £4,060 to £5,075. Injury to feelings

[45]Turning to the assessment of injury to feelings we remind ourselves that the purpose of such an award is compensation rather than to punish the employer. The general guidelines that apply to compensation in discrimination claims were set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police

2003 ICR 318

, CA. These guidelines provide for three broad bands:(a) a top band applicable to the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment;

(b) a middle band applicable to serious cases that do not merit an award in the higher band; and Page 10 of 13

(c) a lower band applicable to less serious cases, such as might be expected where the act of discrimination is an isolated incident or one-off occurrence.

[46]The President of the Employment Tribunals has issued periodic guidance on the appropriate award in each Vento band, and the most recent applies to for claims submitted after 6 April 2023. This provides that:(a) awards in the lower band should fall between £1,100 to £11,200;

(b) awards in the middle band should fall between £11,200 to £33,700; and

(c) awards in the upper band should fall between £33,700 to £56,200, with the most exceptional cases capable of exceeding that upper limit.

[47]The focus in each case is not on the extent of wrongdoing by the employer or its staff but the impact this had on the employee. As the court observed, subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, stress, depression etc and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise. Nevertheless, employment tribunals have to do the best they can on the available material to make a sensible assessment.

[48]We also recognise that any feelings of indignation and outrage towards a respondent should not inflate the award: Corus Hotels plc v Woodward and Anr

UKEAT/0536/05/LA

. Equally, as the award is compensatory, concern about the respondent’s ability to pay is not relevant to assessing injury to feelings: Evans v Oaklands Nursing Home Group Ltd (1999)

EAT/331/99

[49]We accept here that the respondents made some efforts to soften the blow, in that they were clearly regretful about the decision and expressed repeatedly that they felt they had no alternative. It is hard to assess the importance of that since it is clear that this was a close-knit team and yet Miss Hayler found herself suddenly discarded from it. It was, for her, not only the loss of a job, but her first and only job and her first step in a career. She had been there since she was 14, at least on Saturdays, through her teenage years. It also came at a time when she was already anxious about her pregnancy.

[50]The respondents submitted that an appropriate award should be at the top of the lower band or at the bottom of the middle band, i.e. £11,200, whereas Miss Hayler submitted it should be closer to the top of the middle band. We consider that the respondents submissions on this aspect are more appropriate, and thought carefully about whether £11,200 would be the appropriate figure. Overall however, and after some discussion, we felt that some inroads should be made into the middle band, which covers a range of £22,500. 10% into that range therefore adds a further £2,250, which seemed to us more appropriate given the Page 11 of 13 loss of an apprenticeship and the uncertain future it left Miss Hayler with. Accordingly, the figure for injury to feelings is assessed as £13,450.

[51]Again, an uplift of 25% has to be added to this sum, increasing it to £16,813.

[52]Interest also has to be calculated on these amounts and different rules apply to the calculation of interest on financial and non-financial loss.

[53]In the case of the financial loss, it runs at 8% from 25 July 2023 to date, 679 days, or 340 days from the mid-point (29 June 2024), amounting to £378.

[54]In the case of the non-financial loss, it runs at 8% from 25 July 2023 to date, 679 days in told, amounting to £2,502.

[55]Hence, as set out at the outset of this judgment, the relevant figures are as follows: Financial loss:(a) Agreed financial loss £4,060

(b) ACAS uplift (25%) £1,035 Sub-total £5,075

(d) Injury to feelings (10% of middle band) £13,450

(e) ACAS uplift (25%) £3,363 Sub-total £16,813

(f) Interest on the above £2,502 Sub-total for non-financial loss £19,315 Total compensation for discrimination: £24,768

[56]The claimant is award further compensation for unfair dismissal as follows: Basic Award £100

[57]The total compensation awarded for both claims is therefore £24,868. Page 12 of 13 Approved By