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In the case of Ms M Krolczyk v Ana Clean Limited 2500974/2016 the Employment Tribunal (the “ET”) held that an employee had been dismissed because she was pregnant and upheld her claims for unfair dismissal and unfavourable treatment because of her pregnancy, awarding her over £7,000 in compensation. All of her other claims were time barred.

The facts in Ms M Krolczyk v Ana Clean Limited

Ms Krolszyk (the “Claimant”) worked for the Respondent, Ana Clean Ltd, as a cleaner.  The Respondent was a family owned business and Mr Larijani was a director of the Respondent.  The Claimant alleged that on 8 May 2015 Mr Larijani had tried to kiss her and in June the same year he touched her bottom when she was up a ladder cleaning windows.  She also alleged that in June or July 2015 he asked her how to say ‘suck my penis’ in Polish.

In mid-August the Claimant told Mr Larijani that she was pregnant.  She claimed that he acted coldly and was unhappy about the news and said that he would inform Mr Najdi (his partner and co-owner of the Respondent) that the Claimant would not be able to work for them as a result.

Unfortunately, the Claimant had a miscarriage after which she returned to work.  She claimed that in early September 2015 Mr Larijani picked her up in his van as normal.  She alleged that he said to her that if she wanted to try for another baby she would not be able to remain employed by the Respondent.  Then in November 2015 she alleged that whilst at a client’s he said to her ‘ladies first’ and when she moved to the front, he pushed her from behind by touching her bottom.

In January 2016 she told Mr Larijani that she was pregnant again and she alleged that once again he reacted negatively and with sarcasm.  On or around 17 March 2016 the Claimant told Mr Lariyani either that she could not work after 18 April.  The Claimant claimed that it was not her intention to resign from the Respondent when communicating this information, but to confirm when her maternity leave period would start.

On 12 April 2016 the Claimant alleged that that Mr Larijani said to a client “you do know it’s my baby?” when discussing the Claimant’s pregnancy.  On 13 April the Claimant was signed off for a pregnancy related illness and that same day she met with Mr Larijani to discuss various matters.  During that meeting her P45 was mentioned by Mr Larijani after which her partner sent a text message to him to express their concern as she did not want her employment to end and was hoping to return after her maternity leave.  Mr Larijani responded “Hi nobody knows about future as leave more than 1 month probably accountant issue the p45 and then when you back you pass the p 45 to me again. Because nobody knows about the future and maybe you won’t back so we have to do all office issues thanks’.

The Claimant received her P45 on 6 May and raised a grievance on the 13 May.  In their response the Respondent said the Claimant had given notice to terminate her employment on the 18 April.

The Claimant was very upset by what happened, cried frequently and considered that she was suffering from depression. She issued a claim in the Employment Tribunal (“ET”) on 2 August 2016.

The Law

The complaints made by the Claimant were as follows: (a) unfair dismissal pursuant to the Employment Rights Act 1996 (“the 1996 Act”), (b) discrimination because of pregnancy pursuant to sections 18 and 39 of the Equality Act 2010 (“the 2010 Act”), (c) harassment pursuant to sections 11, 26 and 40 or alternatively (d) direct sex discrimination pursuant to sections 11, 13 and 39 of the 2010 Act and (e) a claim for breach of contract in respect of unpaid notice pay.

Of particular interest in this case was whether the Claimant had been dismissed or in fact had resigned and also whether she was time barred from bringing some of the complaints.

The decision of the Employment Tribunal

With regards to the harassment and direct sex discrimination complaints and limitation, any act or omission which took place before 15 March 2016 was held to be out of time. As the allegations of four incidents of unwanted sexual conduct contrary to Sections 26 and Section 40 of the 2010 Act happened in May, June, June or July, and November 2015, they were dismissed.

The ET upheld the Claimant’s claim for unfair dismissal.  They held that the Claimant had not resigned, but instead had been dismissed by the Respondent on 15 April 2016.  They also held that the Claimant’s pregnancy was the reason or the principal reason for the dismissal and as such the dismissal of the Claimant was automatically unfair pursuant to section 99 of the 1996 Act.  The Claimant had sought to avail herself of the benefits of maternity leave and because this was inconvenient to the Respondent’s business it dismissed her.  Her dismissal was also held to be unfavourable treatment because of pregnancy contrary to sections 18 and 39 of the 2010 Act.

The Claimant was awarded a £7,000 injury to feelings award.

Our solicitors’ views on the case of Ms M Krolczyk v Ana Clean Limited

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “The importance of adhering to the Employment Tribunal’s strict time limits for issuing claims is highlighted here as well as the extent to which pregnant employees are protected by employment legislation”.

The decision of the Employment Tribunal in  Ms M Krolczyk v Ana Clean Limited 2500974/2016 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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