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In the case of Ms Stolk v Hunts Food Service Limited (1402790/2018), the Employment Tribunal upheld the Claimant’s claims that she was unfairly dismissed and discriminated against for pregnancy and maternity related reasons.

The facts in Ms Stolk v Hunts Food Service Limited

Miss Stolk (the ‘Claimant’) was employed as a Payroll Manager by Hunts Food Service Limited (the ‘Respondent’) from 1 June 2016 to 11 July 2018 when she resigned with immediate effect.  The Claimant was pregnant in January 2017 and notified the Respondent in March 2017.  She went on maternity leave and was due to return to work 1 May 2018.

During her maternity leave the Respondent acquired another business and took on the Finance Director of that company.  It was arranged that the Finance Director would take on the Claimant’s responsibilities during the Claimant’s maternity leave.

In February 2018 the Claimant contacted the Respondent to arrange a meeting to discuss her return to work.  The meeting took place on 16 March and during that meeting the Respondent’s Finance Director raised some concerns about the Claimant’s performance at work, prior to her pregnancy, some of which had been discussed with her previously, but only on an informal basis.

At the meeting on the 16 March the Respondent’s representative tried to put the Claimant off returning to work by starting a section 111A process at the meeting.  Subsequent to that meeting the Claimant and the Respondent entered into a process of negotiation where offers and counteroffers were put forward by both parties to bring about the termination of the Claimant’s employment amicably.  When those negotiations broke down, the Claimant resigned from her position, claiming that there had been a fundamental breach of the implied term of trust and confidence which allowed her to resign with immediate effect.  She went on to issue claims in the Employment Tribunal for unfair dismissal and pregnancy and maternity discrimination.

The Employment Tribunal awarded the Claimant £11,028.22 as compensation, comprised of the following:

  • Basic award (less 20% for contributory fault): £714.46
  • Loss of earnings and loss of statutory rights (less 20% for contributory fault): £3,961.76
  • Injury to feelings: £5,000
  • Unlawful deduction from wages and interest: £728.30

The relevant law

Section 111A of the Employment Rights Act provides that evidence of pre-termination negotiations are inadmissible in any proceedings in a complaint of unfair dismissal.  However, it does not cover discrimination claims and as a result the Tribunal in this case found that the evidence of the pre-termination negotiations were admissible and relevant.

Pursuant to Regulation 18 of the Maternity Regulations 1999 the Claimant had the right to return to work ‘to the job on which she was employed before her absence, or if it is not reasonably practicable for her employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances’.  Section 39(2) of the Equality Act provides that an employer must not discriminate against an employee by dismissing them or subjecting them to any other detriment.  To deny or to delay the right to return to work is a detriment and a disadvantage.

Section 95(1)(c) of the Employment Rights Act states ‘The Employee terminates the contract under which he is employed with or without notice in circumstances in which he is entitled to terminate without notice by reason of the employer’s conduct.’  The conduct must amount to a fundamental breach of a term of the contract of employment.  There is a term implied in all contracts of employment that neither party to the contract will act in such a way, without reasonable and proper cause, such as to destroy or seriously damage the trust and confidence of the other.

The decision of the Employment Tribunal (ET)

The Employment Tribunal held that at the meeting on 16 March the Respondent made it clear to the Claimant that she would not be able to return to her job at the end of the maternity leave period.  Consequently, she had suffered a detriment and this detriment entitled her to resign and claim constructive unfair dismissal as it destroyed the Claimant’s trust and confidence in the Respondent.  The also went on to find that the Claimant did in fact resign in response to the Respondent’s breach. The Claimant’s claims for unfair dismissal and discrimination claims were well founded.

Our solicitors’ views on the case of Ms Stolk v Hunts Food Service 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 employer’s treading very carefully when attempting to undertake ‘without prejudice’ negotiations with employees, especially where there is the prospect of potential discrimination claims.  Whilst S111A potentially assists employers in undertaking those negotiations, it is recommended employers seek legal advice before doing so to ensure that negotiations don’t become inadvertently admissible in possible future discrimination claims.”

The decision of the Employment Tribunal in Ms Stolk v Hunts Food Service Limited (1402790/2018) 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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