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In the case of Miss M Kinastowska v Agniezka Kokot Ltd (Case Number: 3306840/2018), the Employment Tribunal found that the Claimant had been discriminated against because of pregnancy by the Respondent and was awarded for loss of earnings, future loss of earnings, injury to feelings and interest on injury to feelings to a total of £23,143.79. The Claimant was also found to have been unfairly dismissed because of pregnancy (although no separate award was made for that claim).

The facts in Miss M Kinastowska v Agniezka Kokot Ltd

The Claimant worked with a predecessor of the Respondent, known as “Sun Studio“, from 19 December 2016, where Miss Kokot was then a hairdresser. The Claimant worked as a Receptionist and Customer Service Assistant. Her normal working hours were Monday to Friday from 11:00 to 19:00. The Claimant and Miss Kokot had a good relationship during this period. Miss Kokot acquired that business by way of the Respondent in late 2017. The provisions of TUPE applied from 1 November 2017 so that the Claimant had continuous service from the start of her employment with Sun Studio. The Respondent sub-let a small area of the premises to the Claimant for her to set up a nail bar business for £130.00 per month. The Claimant worked there on Mondays to Fridays from 18:00 and at weekends.

The Claimant learned of her pregnancy on 11 December 2017. She informed Miss Kokot of this the next day, and that she had an ante-natal appointment with a midwife for 1⁄2 day on 22 December 2017. The Claimant had already booked a period starting with 23 December as holiday, when she intended to visit Poland, and she was persuaded to agree by Ms Kokot to take this 1⁄2 day as holiday as well.

On the morning of 15 December 2017, the Claimant texted Ms Kokot that she felt terrible but even so, said she would try to come in and work. It was clear to the Claimant when she arrived that Miss Kokot was unhappy that she was unwell and made remarks to the effect that she would have to speak to her accountant, who she relied on for employment advice, because the Claimant was unwell so early in her pregnancy. The Claimant in fact worked until 19:00 that day. By then Miss Kokot had left for the day and the Claimant decided not to empty the waste bins because she still did not feel well. She also left a couple of plates and glasses unwashed in the sink. The Claimant decided to come in early the next day, a Saturday, to empty the bins and do a friend’s nails.

When the Claimant arrived the next morning, she was confronted by Miss Kokot, who alleged that the Claimant was deliberately wronging her by failing to empty the bins or wash up. The Claimant explained that she had left early because she was not feeling well. Nonetheless she emptied the bins and did the washing up. On the morning of 18 December 2017, a Monday and Miss Kokot’s usual day off, the Claimant was at work when a regular client of Miss Kokot’s came in and asked the Claimant if she would do her nails. While this was contrary to the arrangement the Claimant had with Ms Kokot (to only do nails after 18:00), the salon was quiet at the time and she thought it was in the interest of the business to assist the client. Miss Kokot happened to come into the salon while the Claimant was doing the client’s nails and later criticised her for what she had done.

On 19 December 2017 the Claimant saw her midwife for the first time. When she came to work she thought Miss Kokot was “clearly unhappy” about her having time off for such visits and requested that the Claimant provide evidence of the appointment with her pregnancy book (as, as she admitted in cross examination, she believed the Claimant had taken the time off to go Christmas shopping). The Claimant provided a receipt of the visit saying that the book was for her and her GP. The Claimant was then on holiday until her return to work on 28 December 2017, when Miss Kokot invited her to have a chat. The Claimant was told that Miss Kokot only wanted the Claimant to work at her nail bar business. The Claimant expressed surprise and said she needed the other work and income, at least until the maternity leave started. Miss Kokot then told the Claimant that she had no choice but to give her notice.

Decision of the Employment Tribunal

The Employment Tribunal considered the following  statutory provisions: (Sections 18 and 136 Equality Act 2010, Sections 99 and 108 Employment Rights Act 1996 and Regulation 20 Maternity and Parental Leave etc Regulations 1999) and referred to the cases of Madarassy v Nomura International Plc. [2007] IRLR 246, Nagarajan v London Regional Transport [2000] 1 AC 501  and O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor [1996] IRLR 372.

The Tribunal found that the Claimant had established, on the balance of probabilities, evidence from which they could conclude, absent an explanation from the Respondent, that the unfavourable treatment complained of (that is her dismissal), was because  of her pregnancy. They found in particular, that this burden of proof had been satisfied by fact that the relationship between the Claimant and Miss Kokot only deteriorated, and then quite suddenly, after Miss Kokot had knowledge of the Claimant’s pregnancy.  The Tribunal did not believe that the Respondent had shifted this burden by asserting that it was the Claimant’s conduct that caused her to dismiss her. The Claimant had the right to claim automatic unfair dismissal under Section 99 of the ERA even though she did not have two years’ service.

The Tribunal awarded the Claimant past financial loss and also future loss (as she was in a wheelchair at the hearing due to an accident and was not going to be able to work for 3 months) and also using the Vento guidelines, considered that while this was a single discriminatory event, it was serious and had hit the Claimant at a particularly vulnerable time in her life, and so awarded damages in the mid-range.

The Employment Tribunal awarded the Claimant £23,143.79 in compensation, comprised of the following:

  • Past loss of earnings: £6,113
  • Future loss of earnings: £3,600
  • Injury to feelings: £12,000
  • Interest: £1,430.79

Our solicitors’ views on the case of Miss M Kinastowska v Agniezka Kokot Ltd

Caroline Lewis, a Senior Associate in the employment department at Redmans, made the following comments on the case: “Employers can still dismiss a pregnant employee or an employee on maternity leave as long as the reason is entirely unconnected to their pregnancy or maternity. For example, an employer may be able to dismiss an employee for stealing company goods or persistent under-performance. However, it’s important to tread carefully when considering dismissing a pregnant employee for poor performance or because they cannot perform their duties. An employer should always take into account the impact that pregnancy can have on employees when assessing their performance whilst pregnant because if the sole or main reason for the dismissal is, for example, that the employee is pregnant; that she plans to take maternity leave; that she has exercised her statutory right to time off for antenatal appointments; that she is suspended from work due to health and safety concerns; or that pregnancy-related illnesses has resulted in lateness or absence then this will amount to pregnancy and maternity discrimination. Note, as in this case, an employee can make a claim for unfair dismissal if the main reason for dismissing them is the fact that she is pregnant or on maternity leave, irrespective of their length of service.”

The decision of the Employment Tribunal in Case Number: 3306840/2018 can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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