In Jachacz v Eggfree Cake Box Walthamstow Limited (ET/3200248/2019) the Employment Tribunal upheld an employee’s claim that she had been discriminated against after she was subjected to undue criticism and then dismissed subsequent to notifying her employer of the fact of her pregnancy.
The facts in Jachacz v Eggfree Cake Box Walthamstow Limited
Ms Jachacz (the ‘Claimant’) worked for Eggfree Cake Box Walthamstow Limited (the ‘Respondent’) from 22 August 2018 making egg free cakes. She found out she was pregnant in September 2018 and was advised by her work colleagues to tell a Mr Lenain who managed her which she did by way of a text message on 15 September. Mr Lenain advised Mrs Wright, the owner of the Respondent, no later than 19 September 2018.
Within 5 days of discovering the Claimant was pregnant, Mrs Wright organised a probation review meeting with the Claimant without any prior notification. She told the Claimant that she was not happy with the Claimant using her mobile phone at work, eating leftover sponge cake pieces and licking cream off her hands. The Claimant apologised but stated that colleagues did the same. At the end of the meeting she asked, ‘do I have my job still?’ and Mrs Wright answered ‘yes. You can go back to your task. Meeting completed. I will inform about my decision after the meeting notes have been reviewed’. The meeting lasted no longer than 15 minutes. The Claimant was visibly pregnant at the meeting. At no point during the course of the meeting did Mrs Wright indicate to the Claimant that she would lose or might lose her job.
Subsequent to that meeting Mrs Wright went on holiday and there was no contact between her and the Claimant until the Claimant was dismissed on the 12 October by way of a letter which stated that Mrs Wright was writing to confirm her decision following the meeting. It went on to state that that the Claimant had failed to follow the Respondent’s rules and procedures and failed to achieve performance targets.
The Claimant appealed the decision to dismiss her, but was not notified of the time of the appeal meeting so it went ahead in her absence. The Claimant’s appeal was not upheld.
The Claimant brought a claim for discrimination on the basis that she was dismissed because of her pregnancy.
Section 18 2 (A) of the Equality Act 2010 states that ‘A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably (a) because of her pregnancy.’
Subsection (2) does not apply if A can show that they did not contravene the provision. A Claimant must establish on the balance of probabilities facts from which the ET ‘could in the absence of an adequate explanation’ find that the Respondent had discriminated. This means that there must be a ‘prima facie case’ of discrimination, including less favourable treatment, than a comparator (actual or hypothetical) with circumstances materially the same as the Claimants and facts from which the ET can infer that the less favourable treatment was because of the protected characteristic. If the Claimant is able to establish this, the Respondent must prove that the less favourable treatment was in no sense whatsoever because of the protected characteristic.
The decision of the Employment Tribunal (ET)
The ET upheld the Claimant’s claim that her dismissal constituted discrimination because of her pregnancy contrary to S18 of the Equality Act 2010.
They did not accept that the reasons given for the Claimant’s dismissal in the letter of 12 October were honest and accurate in light of the fact that Mrs Wright had been away for most of the time in between the meeting and the Claimant’s dismissal and as such was not in a position to monitor any improvement in the Claimant’s performance. In addition, they noted that no performance targets had ever been set. The Claimant had successfully established a prima facie case of discrimination and the onus had shifted to the Respondent to establish that on the balance of probabilities that the dismissal of the Claimant involved no discrimination at all. As the ET did not accept the reasons provided for the Claimant’s dismissal they held that the reason for it was in fact her pregnancy.
Our solicitors’ views on the case of Ms Prewett v Green King Services Limited
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case ‘This case demonstrates the importance of employers who make a decision to dismiss following a thorough and fair process, regardless of the employees length of service, so as to ensure they did not get caught out by employment legislation.’
The decision of the Employment Tribunal in Ms Jachacz v Eggfree Cake Box Walthamstow Limited (ET/3200248/2019) can be found here.