The facts in Malik v Mauricare Ltd and others
Ms Malik commenced employment with Plus Care Homes in June 2010, working at a care home called Blossom Care Home; her employment was transferred to Blossom Care Homes Limited in July 2014, a company owned by a Ms Sachdev. Blossom Care Homes Limited was subsequently acquired by Mauricare Limited. Mr Boodhoo was Ms Malik’s line manager at the relevant times, and Ms Malik’s latest position was that of manager at the Blossom Care Home.
As part of the transfer of the business to Mauricare there was an application by Mauricare in March 2016 to the Care Quality Commission (“CQC”) to vary its registration to add Blossom Care Home as an additional location and to continue Ms Malik’s registration to manage the regulated activity at Blossom Care Home under Mauricare; this was a joint application in respect of both the registration of the home and Ms Malik’s registration. In fact Ms Malik was due shortly to go on maternity leave; she took a period of accumulated holiday and then began her formal period of maternity leave on 4 April 2016.
By way of a letter dated 28 October 2016 the CQC refused the joint application, giving two reasons: firstly, there were concerns about a number of the homes operated by Mauricate and, secondly, there was no suitable plan for managing the Blossom Care Home while Ms Malik was on maternity leave (it was noted that Mr Boodhoo showed them evidence that there was an intention to recruit a manager to cover Ms Malik’s maternity leave, but that no plans had been shared on how the care home was to be operated in the interim). The CQC’s letter of 28 March 2016 was not shown to Ms Malik and she was not made aware that there were concerns regarding her position as registered manager.
Subsequent to the CQC’s letter the local authority placed an embargo and were not taking up any more beds at Blossom Care Home.
On 29 November 2016 Ms Malik emailed Mr Boodhoo and Ms Sachdev pointing out that her maternity leave was due to come to an end on 1 January 2017, that she intended to return to work soon after that, and she would like a return to work meeting as soon as possible. Mr Boodhoo replied to say that he would be in touch.
On 14 December 2016 Ms Malik emailed Mr Boodhoo again to remind him about her request for a return to work meeting; Mr Boodhoo had done nothing in the intervening period to arrange a return to work meeting but emailed her on the same day to suggest that the meeting take place on 22 March 2016. Ms Malik replied to state that she would be available the week of 26 December 2016, suggested a potential telephone meeting, and asked him to clarify how much accrued but untaken annual leave she had remaining.
Ms Malik again emailed on 29 December 2016 to set out the background and ask that Mr Boodhoo get in touch with her. She said that because of childcare issues she would now like to book three week’s annual leave from 2 January 2017 to 20 January 2017, and asked whether Mr Boodhoo was available to meet her any day after 8 January 2017 to discuss her return to work. Mr Boodhoo replied on 31 December 2016 suggesting a date of 5 January 2017 (a date that she had said she was not available) and making a reference to holiday pay (which Ms Malik had not asked for). Mr Boodhoo concluded that he wanted to meet Ms Malik as a matter of urgency to discuss her return to work. Ms Malik was surprised by this as she had been trying to arrange such a meeting with Mr Boodhoo for a month.
A meeting was arranged to take place on 10 January 2017, and did in fact take place on that date at a Starbucks. It was discussed at that meeting that Ms Malik wanted to extend her maternity leave to the end of March 2017; it was also discussed the problems with the CQC and the local authority’s bed embargo. It was agreed that Ms Malik would send a written request for an extension of maternity leave, which Mr Boodhoo would then consider.
On 12 January 2017 Ms Malike emailed Mr Boodhoo and Ms Sachdev to ask that she extend her maternity leave on 3 April 2017 and that she would like to take her 21 days’ outstanding annual leave on 4 April 2017. Mr Boodhoo replied later the same day attaching a letter dated 11 January 2017. This letter (which was purported to be sent on 11 January 2017) stated that Ms Malik’s employment would be terminated as of 11 January 2017 due to financial problems at the business and enclosing a final payslip. Ms Malik did not receive the posted letter.
Ms Malik submitted her appeal on 18 January 2017, appealing on the basis that she did not agree with the decision and that she believed that the decision was unreasonable and incorrect. Ms Malik emailed again on 2 February 2017 to ask for a response to her appeal. Mr Boodhoo replied by email to state that a letter had been sent by post. Ms Malik did not receive this letter.
Ms Malik subsequently made claims for pregnancy and maternity discrimination, unfair dismismsa, and automatic unfair dismissal.
The decision of the Employment Tribunal
The Employment Tribunal held that Ms Malik’s dismissal was unfair, as no potentially fair reason was provided and no procedure had been followed. The Tribunal held, further, that Ms Malik’s dismissal was discriminatory (as she would have not been dismissed if she had not gone on maternity leave – it was easier for the business to dismiss her when she wasn’t there) but not automatically unfair (as her dismissal was not principally or wholly because of her period of maternity leave but because of the steps taken by the CQC).
The Employment Tribunal awarded Ms Malik the following sums as compensation:
- Basic award for unfair dismissal of £2,129.09
- Loss of statutory rights: £370
- Wrongful dismissal: £2,220
- Payment of accrued but untaken holiday: £962
- Compensation for loss of earnings: £2,903.02
- Compensation for injury to feelings: £5,276.16
Our solicitors’ view on Malik v Mauricare Ltd and others
Rana Tandon, a specialist employment solicitor at Redmans, commented on the case: “This case shows that, even where businesses are suffering financial difficulties, they must make decisions which are fair and reasonable (particularly if the employer is looking to dismiss an employee who is on maternity leave).”
The judgment of the Employment Tribunal in Malik v Mauricare Ltd and others can be found here.