In the case of Mrs Amin v Calvary Pre-School Limited (ET/3201703/2018), the Employment Tribunal upheld the Claimant’s claims for maternity leave discrimination and constructive unfair dismissal after her employer delayed increasing her pay and giving her a new contract until she returned from maternity leave.
The facts in Amin v Calvary Pre-School Limited
Mr Amin (the ‘Claimant’) was a nursery nurse. She worked for Calvary Pre-School Limited, (the ‘Respondent’) from 23 February 2015 as an apprentice but employed under a contract of employment. Ms Bailey was the manager of the nursery for the Respondent.
In early 2017 Ms Bailey told the Claimant that when she completed her apprenticeship, she would be given a new contract of employment and an increased salary. In or around June 2017 the Claimant informed the Respondent that she was pregnant. She then completed her apprenticeship course on 28 June 2017. The Claimant immediately informed the Respondent that she had completed her course and asked to be given her new contract of employment with the increased rate of pay. The Respondent informed the Claimant that they would not be able to provide either until she provided evidence of having completed the course. The Respondent received an e-mail from the course assessor confirming that the Claimant had completed the course, but despite this the Claimant was informed that no changes would be made until a copy of the actual certificate were provided.
As a result, the Claimant worked from 29 June to 9 November 2017 (when she went on maternity leave), under her apprenticeship contract, even though her apprenticeship had finished on 28 June 2017. The Claimant finally received the certificate on 4 September 2017 and e-mailed it to Ms Bailey. At the same time, she gave notice of her intention to go on maternity leave from 10 November 2017 to 25 June 2018. The Claimant again asked for a pay rise and to be put on a new contract and the Respondent again refused. Ms Bailey advised the Claimant that numbers in the nursery were down and that they could not afford to employ the Claimant on new terms until she returned from maternity leave
The Claimant was dissatisfied with this decision and on 14 September 2017 Ms Bailey wrote to the Claimant offering her a new contract from the date she returned from maternity leave, despite the fact that the Claimant still had two months before she was due to go on maternity leave. Then at a meeting on 15 September 2017 to discuss the Claimant’s complaints, Ms Bailey said words to the effect of ‘your brain does not function properly because you are pregnant.’
The Claimant took maternity leave and returned to work on 28 June 2018. The Respondent had failed to apply for a DBS for the Claimant and so she was unable to work the last few days in June and into July and then the nursery was closed for the summer. The Claimant was given a new contract with increased pay, which was signed on 13 July 2018, but for the month of July the Respondent paid the Claimant holiday pay calculated using a SMP rate based on the old contract.
Upon the Claimant’s return to work in September 2018 the Claimant resigned. In her resignation letter she referred to having been discriminated against because she was pregnant and had taken maternity leave and her belief that all of the issues regarding pay and the change of contract would have been dealt with more smoothly and efficiently had she not done so.
The Claimant went on to make claims in the ET for pregnancy and maternity discrimination, constructive unfair dismissal, unauthorised deductions from wages.
The decision of the Employment Tribunal (ET)
The Claimant’s claims succeeded. The ET held that, on the balance of probabilities, there were no financial difficulties which could justify not putting the Claimant on a new contract until she returned form maternity leave. They further held that the Respondent took advantage of the fact that the Claimant was going on maternity leave to save money by delaying the start of her permanent contract until after she returned and that this was an act of unfavourable treatment because of pregnancy and maternity discrimination. They also held that the remarks made by Ms Bailey constituted unfavourable treatment because of the pregnancy.
With regards to the Claimant’s holiday pay, the Respondent was unable to provide any justification as to why the Claimant had been paid at the SMP rate for July and August and held that they had done so to save the business money. The ET also upheld that Claimant’s claim for unauthorised deduction from wages from the point at which the new contract superseded the old contract (13 July 2018) as she was underpaid from that time.
Finally, the Claimant’s claim for constructive unfair dismissal succeeded as the Claimant’s continued failure to pay the Claimant the sums due under the 2018 contract was a repudiatory breach of contract which entitled the Claimant to resign.
The Employment Tribunal listed a remedy hearing to take place on 5 November 2019.
Our solicitors’ views on the case of Ms Amin v Calvary Pre-School Limited
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “This case is a clear example of an employer treating an employee differently from the moment she announces her pregnancy and attempting to use the employee’s maternity leave to their financial advantage. A pregnant employee’s right to avail themselves of maternity leave and not suffer a detriment as a result is enshrined in law employers should make sure they have a solid understanding of a pregnant employee’s rights so as to not fall foul of the law.”
The decision of the Employment Tribunal in Mrs Amin v Calvary Pre-School Limited (ET/3201703/2018) can be found here.