Mrs N K Kolan v Marks and Spencer Group plc: 3302722/2024
EMPLOYMENT TRIBUNALS
Case No 3302722/2024
Between
Mrs N K KolanClaimantMarks and Spencer Group plcRespondent
Before
Employment Judge Bloch KC, Mr D. Bean and Mr A.KapurIn person for claimantMr H Dhjorajiwala (instructed by counsel) for respondentDate 2 April 2025
JUDGMENT
The unanimous decision of the tribunal is as follows:[1]Under the Employment Rights Act 1996 (“ERA”) s.99, the respondent on 30 October 2023 automatically unfairly dismissed the claimant, the reason, or principal reason for the dismissal being her pregnancy;[2]Under the Equality Act 2010 (“EQA”) s18, the respondent discriminated against the claimant by dismissing her because of her pregnancy
REASONS
reasons, after judgment and reasons had been given orally that day] [These reasons are provided following the request by the claimant on 5 March 2025 for written[1]The claimant made the following complaints:2.1 Automatically unfair dismissal (for a reason connected to her pregnancy).2.2 Direct pregnancy discrimination.[2]The issues between the parties were identified at a Preliminary Hearing held on 24 October 2024 before Employment Judge Dick. The issues (relating to liability) were identified as follows:- Unfair dismissala. Was the claimant dismissed?b. Was the reason or principal reason for the dismissal of the claimant connected to her pregnancy ? If so the claimant will be regarded as unfairly dismissed. Pregnancy and Maternity discrimination: Equality Act 2010 s.18 a. Did the respondent treat the claimant unfavourably by dismissing her? b. Was the unfavourable treatment because of the pregnancy?[3]At that hearing the tribunal determined that the hearing today would be on liability only, with remedy (if necessary) to be dealt with on another day.[4]The tribunal also set out a brief summary of the claim which is helpful by way of a shorthand summary of the facts: The claimant was employed by the respondent for a short time in October 2023. The parties agree that prior to 29 October it had been agreed that the claimant would not have to lift anything heavier than 5kg because of a problem she had earlier mentioned with her back. The claimant makes no complaint about what happened to her until she went to the Watford branch on 26 October. The parties agree that on 30 October the claimant told the Branch Manager, Caroline Bowie, that she was pregnant. The claimant says that Ms Bowie dismissed her by saying, “I’m sorry, we don’t have any suitable jobs for you.” The respondent denies that the claimant was dismissed – it says that she resigned. In any case it denies that she was discriminated against because of her pregnancy.[5]Evidence was given by the claimant and Caroline Bowie who were cross - examined. The fuller facts from the claimant’s perspective were set out in her witness statement. Having referred to a (recruitment) meeting which she had attended on around 24 September 2023 with Ms Bowie, she referred to Ms Bowie reassuring the claimant that there would be no problem with the limitation on lifting weights that were no more than 5kg, telling her that she would need only to carry small things. That is common ground between the parties. It is also common ground that the claimant began her employment (which was in fact a training period and one in which it appears she was also on probation) on 15 October 2023. After some initial induction and baking training between 15 October and 24 October 2023 at Brent Cross and Uxbridge she was then required to transfer to Watford. There were no problems prior to her coming to Watford. She worked there on 26 and 27 October and encountered problems in relation to being required to lift heavy boxes.[6]On Saturday 28 October, the claimant messaged Ms Bowie referring to back and groin pain and stating that, during her training in Uxbridge, things had gone well because she had not been required to lift heavy packages. However, problems began with the training in Watford. She referred to a tense environment in which she was expected to know and do everything and under pressure because she did not speak English very well. She referred specifically to being required to carry large boxes which were giving her back and groin pain. She ended by saying, “Please can I get information from you about what we can do about the situation and how can improvements be made”. Ms Bowie responded on the same day as follows: “As you are aware this was as unprecedented situation…. Come in on Sunday as your shift dictates and things should be better organised. As I said in the few occasions that this is not the norm however we are much busier than your training store.” (She was referring to there being an unprecedented situation because an employee had that day had a concussive accident).[7]The claimant’s key evidence begins at paragraph 31 of her witness statement. Having located Ms Bowie’s office they had a conversation next door in a meeting room. The claimant began explaining her situation stating: “I began explaining my situation,, stating “My colleague is not happy with me”. I needed clarity on what I was supposed to do because I could no longer endure the physical strain and lack of support. I then said, “I can’t carry more than 5kg, which is very important for me because I am pregnant”. After struggling that week I finally disclosed my pregnancy, expecting that Caroline would acknowledge my concerns and discuss possible adjustments.”[8]At paragraph 32 she states: “The moment I mentioned my pregnancy, Caroline’s expression shifted. Her face dropped and she immediately dismissed me, stating, “I’m sorry, we don’t have any suitable jobs for you”. She then added “I can’t move you anywhere else because your English isn’t enough.” I broke down and Caroline patted my shoulder twice before it became apparent that she wanted me to leave. She did not ask a single question about my pregnancy, my health, or whether I needed support. She made no effort to discuss alternative roles, reasonable adjustments. The fact that I was dismissed immediately following the disclosure of my pregnancy and the fact that Caroline said that because of my pregnancy she didn’t have any roles for me spoke to my worst fears that disclosing my pregnancy would lead to my dismissal”. She added that it was clear to her that her pregnancy was the reason for her dismissal.[9]She stood outside of the meeting room for half an hour and thought that someone would come out to speak to her regarding her dismissal. After waiting for approximately 30 minutes she knocked on Ms Bowie’s door. She was still hoping for some form of clarity. When Ms Bowie responded her attitude was even more irritated than before: “I asked “What can I do” and I needed documents in relation to my dismissal. Instead of engaging with me, she coldly instructed me to “you can leave your card and go” and did not speak further. I did as she said, but I did not hand in my swipe card willingly as an act of resignation - I did not want to resign – I handed it over because I was told to. At that moment it became clear to me that I had been dismissed.”[10]At paragraph 35 of her witness statement the claimant stated: “I was not given a formal termination letter, or notice period, or any right to appeal. I was being sent away without a single piece of paperwork or a proper explanation.[11]At paragraph 36 she stated: “My employer had previously confirmed that my lifting restrictions were acceptable, yet they failed to allow for that and as soon as I told them I was pregnant they said that they had no further work for me.[12]The respondent’s evidence (by Ms Bowie) was (in so far as relevant to what happened on 30 October), to be found at paragraph 24 and onwards of her witness statement. She first indicated (paragraph 24) that she had informed the man with whom the claimant was to work (Jose) that the claimant would not be required to carry boxes weighing more than 5kg. In any case it would be unusual for any colleagues working in the bakery to be required to carry boxes weighing more than this. This is because a separate team, the Operations Team, were responsible for loading cages with boxes. She added that, as there were always at least two people in the bakery, the claimant was not required to lift heavy boxes as this could be done by one of her colleagues. Having referred to the messages quoted above, she said that the next contact from the claimant was a message sent to her on 30 October saying that she needed to talk to her. She sets out what happened on 30 October as follows: “26 During this conversation, Nilgun [the claimant] told me (for the first time) that she was pregnant. I remember we had a chat about that, and I passed on my congratulations. I asked her when she found out, and she told me that it was during her training at M&S.”[13]At paragraph 27 she said: “Nilgun expressed that she was unhappy in the Bakery, and so we then moved on to discussing whether there were other roles she could do. At that time, we did not have any vacancies in the store, however I wanted to explore whether I could accommodate Nilgun in another department.”[14]She then referred to the possibility of working at the “tills” but said that she did not think that was suitable because of the frequent customer interaction required and the level of English that the claimant had. The only other role in the store that had the same early morning hours as Nilgun’s was the early morning shift. However this was a manual task involving moving heavy objects from cages onto the shelves . Given what Nilgun had said about her back condition Ms Bowie did not think that would work either.[15]At Paragraph 28 of Ms Bowie’s witness statement she went on to say that she remembered reiterating to Nilgun that: “I remember reiterating to Nilgun that she was not required to lift boxes weighing more than 5kg as part of her role in the Bakery. My understanding was that Nilgun back condition was unrelated to her recent pregnancy… The discussion around other potential roles Nilgun might be able to do took place purely because Nilgun gave me the impression that she was not happy in the Bakery, and we were therefore looking at alternative options. It had nothing to do with the fact that Nilgun had told me she was pregnant.”[16]Ms Bowie added that the conversation ended amicably with her encouraging the claimant to take some time to think about what she wanted to do. She added (witness statement paragraph 30): “Had Nilgun wanted to stay in the Bakery we would have carried out a risk assessment to identify any additional risks that may arise while working in the Bakery due to her pregnancy, and we would have made adjustments accordingly. However we did not get to this stage, as the claimant resigned the same day.”[17]She added that after this conversation the claimant went back to the shop floor while Ms Bowie stayed in the manager’s office. Less than an hour later the claimant returned saying that she had: .. “…thought about our earlier conversation and decided that she would not be coming back. She handed me her locker key and swipe card and I wished her well. I recall that it was an amicable conversation. The claimant did not appear in any way distressed or upset.” In response to a question from the tribunal Ms Bowie clarified that without the swipe card (which was in fact a type of clocking in card) the claimant would not have been able to gain entrance to the Marks & Spencer’s property the following day.[18]At paragraph 32 of her witness statement Ms Bowie stated:- .. “I have seen that Nilgun has said that during this meeting I said to her, “I am sorry, we don’t have any suitable jobs for you”. I do not remember using these exact words, but I think I may have said something similar. This followed our discussion where Nilgun had indicated that she did not want to work in the Bakery anymore.” Ms Bowie added:- “As far as I was concerned, Nilgun could have continued her role in the Bakery throughout her pregnancy.”[19]At paragraph 34 of her witness statement Ms Bowie denied that she had treated the claimant unfavourably because she was pregnant.[20]On questioning from the tribunal, Ms Bowie stated that she could not remember what the words were which were “similar”. She also confirmed that she did not expressly ask the claimant whether she no longer wished to work in the bakery or expressly confirm that the job in the bakery was still available. She however told us that, from her perspective, there was nothing preventing the claimant from continuing her role the bakery.[21]The evidence of the claimant and Ms Bowie accordingly diverged from each other in material respects – and in such a way that it was not possible to resolve this difference on the basis of one or other (or both) of them being mistaken as to the events of 30 October and in particular as to whether there was a dismissal or a resignation.[22]In our view the evidence of the claimant was clear and consistent on the key issues, presenting a coherent picture of what happened on that day consistent with facts which were common ground between the parties. We considered her demeanour in the witness stand and concluded that she was an entirely credible witness as to what occurred in particular during the meeting on 30 October. We took into account that the claimant’s level of English was not high but concluded that this did not affect the quality of the claimant’s understanding or recollection of what happened on 30 October.[23]There was a simple series of events which led up to the meeting which appeared to be far more consistent with the claimant’s evidence than that of Ms Bowie. The text messages which are referred to above indicated that both parties wanted to resolve the issues that existed in the bakery area, the principal problem of which appeared to be the requirement by one of the employees there that the claimant should carry heavy boxes. As set out above, Ms Bowie was entirely at one with the claimant that this was not really a problem given that she, the claimant, should not have to carry heavy boxes as part of her job in the bakery. Yet, strangely, the meeting resulted in a parting of the ways (instead of Ms Bowie reiterating the instruction to Mr Jose (or other colleague) that they should not require the claimant to carry heavy boxes and the making of any necessary adjustments arising from the claimant’s pregnancy, which she announced on that day).[24]The tribunal was puzzled by the lack of any suggestion of a risk assessment by Ms Bowie once the claimant had mentioned that she was pregnant. Indeed, Ms Bowie accepted that this was never explained to the claimant in either the first or the second meeting, although this was Marks & Spencer’s procedure. The idea that this was precluded by a sudden resignation is not, in our judgment, persuasive. Given, even on Ms Bowie’s version of events, that the “resignation” was in the context of complaints about heavy lifting but now (for the first time) put in the context of pregnancy, it seems very odd that no such reference was made by Ms Bowie in accordance with accepted procedure. In these circumstances prudence would surely have dictated express reference to the need for a risk assessment and consideration of ways of resolving the issues which had arisen in the bakery rather than Ms Bowie simply accepting any such “resignation”.[25]Further, after careful consideration, we considered that the suggestion that Ms Bowie had in her mind that the claimant could continue in her role in the bakery and that this was understood by the claimant was more an afterthought on Ms Bowie’s part rather than anything which actually occurred on the day. The course of events (to which we refer more fully below) appears to be inconsistent with an assumption that the claimant understood or that Ms Bowie was thinking that the bakery position was still available.[26]Further, and significantly, there was no written resignation. Again, Ms Bowie accepted that she should have ensured that the resignation was put in writing. Further, Ms Bowie (as set out above)) did not say to the claimant anything in connection with her keeping the baking role. Instead, (on her own evidence) she appears immediately she was informed of the pregnancy to go on to discuss other roles – both of which were obviously inappropriate.[27]These points are even more trenchant in regard to the second meeting:a. The lack of express confirmation that the bakery job was still available, and that heavy lifting was therefore not a problem. (Ms Bowie did say that at some stage looking back that she had indicated this, but it is not clear from her evidence exactly when that was said);b. Again, the absence of reference to a risk assessment in accordance with the respondent’s policy is significant. By this stage Ms Bowie had had time to think about what had happened yet appears not to have taken advice from HR or to mention anything about a risk assessment to the claimant;c. Perhaps more significant is that Ms Bowie was able to offer no explanation as to why she did not do any of these things and, in particular, as to why she did not request a resignation letter;d. Further, there is the oddity that she accepted that she did use similar words to which the claimant took objection: “I’m sorry, I we don’t have any suitable jobs for you” but she could not remember what similar words were used. The claimant’s difficulty in this regard is illustrated by the fact that in his written submissions the respondent’s counsel attempted to gloss these words (as he later accepted) adding “other” before the word “suitable”. That was, as he later accepted, not anyone’s evidence. There is a key difference that would be conveyed by the language so changed, and that (ie. that the bakery position remained available) was not (as we have found) what the claimant understood.[28]Accordingly, (wherever there was a material difference in the evidence) the tribunal preferred the evidence of the claimant. With some reluctance, the tribunal found Ms Bowie’s evidence to be, at least in part, lacking in coherence (in the sense in particular of raising unanswered questions referred to above) and improbable in significant respects when compared with the claimant’s version of events.[29]Accordingly, the tribunal unanimously accepted that the claimant did not voluntarily resign from her employment. .[30]Both parties submitted helpful skeleton arguments and the summary of the law below is derived largely from the skeleton argument of the respondent. There was. However, no difference of substance in the parties’ submissions on the law. We have carefully considered these skeleton arguments but have not found it necessary in the circumstances of this case – and especially our decision above on the facts - to recite them in the judgment. The law Automatic unfair dismissal – s.99(3)(a) Employment Rights Act 1996.
The law
[31]Section 99 ERA 1996 states (so far as relevant): “ 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, … (5) Regulations under this section may— (a) make different provision for different cases or circumstances; (b) apply any enactment, in such circumstances as may be specified and subject to any conditions specified, in relation to persons regarded as unfairly dismissed by reason of this section.”[32]The relevant associated Maternity and Parental Leave etc. Regulations 1999/3321 state, (so far as relevant): “20.— Unfair dismissal (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) … (3) The kinds of reason referred to in paragraph (1) … are reasons connected with– (a) the pregnancy of the employee;” Pregnancy and Maternity Discrimination (s 18 EqA 2010)[33]Section 18 EqA 2010 states (so far as is relevant): .. “Pregnancy and maternity discrimination: work cases(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 or after the protected period in relation to a pregnancy of hers, A treats her unfavourably— (a) because of the pregnancy, ……….. (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; (aa) if she does not have that right, but has a right to equivalent maternity leave, at the end of that leave period, or (if earlier) when she returns to work after the pregnancy; (b) if she does not have a right as described in paragraph (a) or (aa) , at the end of the period of 2 weeks beginning with the end of the pregnancy .[34]The concept of unfavourable treatment was considered by the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65, [2019] ICR 230: .“27. … I agree ….that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section” (per Lord Carnwath JSC[35]In relation to the analogous concept of ‘detriment’ the complained-of treatment must actually be less favourable treatment which is more than an unjustified sense of grievance (Shamoon v Chief Constable of the RUC (NI) [2003] UKHL 11, [2003] ICR 337, para [35]: .. “. … Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87 … ”[36]In relation to a case on direct discrimination, the EAT has found that a genuine lack of awareness of a protected characteristic may be a defence to a direct discrimination claim. In McClintock v Department for Constitutional Affairs [2008] IRLR 29, the EAT did not interfere with the ET’s finding below that a lack of knowledge of a protected characteristic would be fatal to a direct discrimination claim. Per Mr Justice Elias (as he then was) at para [31]: “Initially, Mr Diamond challenged all the findings of the Tribunal. However, before us he prudently withdrew the direct discrimination claim. In truth, it was bound to fail. The evidence was that the DCA would have treated anyone in the same way who had not been prepared to give effect to the judicial oath; and in any event, there can hardly be a direct discrimination on grounds of religion or philosophical belief when the DCA did not appreciate that this was the basis for the objection.”[37]Moreover, and again in the context of a claim of direct discrimination, the Supreme Court provided important guidance on the causation element of a direct discrimination claim (i.e. the meaning of ‘because of’ a protected characteristic). In R (E) v JFS Governing Body [2009] UKSC 15, [2010] 2 AC 728, Lord Phillips in the majority summarised the key principles for identifying causation: “20. … Whether there has been discrimination on the ground of sex or race depends upon whether sex or race was the criterion applied as the basis for discrimination. The motive for discriminating according to that criterion is not relevant. 21. … Those observations address the situation where the factual criteria which influenced the discriminator to act as he did are not plain. In those circumstances it is necessary to explore the mental processes of the discriminator in order to discover what facts led him to discriminate.”
Discussion
[38]Based on our findings of fact the tribunal had no difficulty in concluding (essentially based on the claimant’s evidence, as accepted by the tribunal) that the claimant was dismissed from her employment by the respondent on 30 October 2023. While the words “I dismissed you” or any similar words were not used, it is plain (on our factual findings) that the respondent (through Ms Bowie) unambiguously communicated to the claimant that her services were no longer required. The claimant gave evidence that she understood this at the end of the first meeting on 30 October but that this became clear beyond any doubt during and after the second meeting. The tribunal, in particular, concludes that, in their context, the words that “we have no jobs available for you” clearly indicated a dismissal especially when nothing was added to them to indicate a different position (apart from initial reference to other obviously unsuitable jobs). Any doubt there might have been is resolved by what occurred in the second meeting, namely the instruction by Ms Bowie that the claimant should hand over her swipe card and locker keys. In short, by word and deed, the respondent unambiguously communicated to the claimant her dismissal.[39]Turning to the “causation/mental element”, the tribunal concluded that the dismissal was in fact caused by the disclosure of pregnancy and that that was the reason, or the principal reason, for her dismissal. The tribunal was particularly taken by the fact that until the discussion on 30 October the efforts of both the claimant and Ms Bowie were towards improving the situation for the claimant within the bakery. There was no other reason proffered by the respondent (that anything else happened in the meeting/s or otherwise) to explain the radical change of position to one of an immediate parting of the ways - other than the mention of pregnancy. In this regard the tribunal accepted the graphic evidence given by the claimant as to the reaction of Ms Bowie when she heard this news, and it appears that this immediately led to reference to other (obviously unsuitable) jobs and then to the respondent making clear that there were no jobs available for the claimant. As we have said, the removal of the swipe card and locker key made that clear beyond peradventure. With some reluctance, the tribunal concluded that there was no other explanation for this sudden change in behaviour than the revelation by the claimant of her pregnancy. Accordingly, we concluded as set out above as to the reason for the dismissal and its cause.[40]It follows that the act of dismissal amounted to unfavourable treatment under EQA s.18. It was not contended that dismissal (in principle) did not (or would not) amount to unfavourable treatment.[41]The tribunal accordingly upheld both the claimant’s complaints:a. automatic unfair dismissal, under ERA s. 99;b. discrimination, under EQA s.18. Approved by: