In the case of Miss Ludwiczak v Your Square Limited (3200758/2018), the Employment Tribunal upheld the Claimant’s claim that she was treated unfavourably when she was dismissed whilst pregnant.
The facts in Ludwiczak Limited v Your Square Limited
Miss Ludwiczak (the ‘Claimant’) was employed as a cleaner by Your Square Limited (the ‘Respondent’) from 11 July 2017 to 26 January 2018. During the course of her employment various performance issues were raised with the Claimant, but after she received a formal warning, her performance improved. In December 2017 the Claimant informed the Respondent that she was pregnant. Subsequent to being advised that the Claimant was pregnant there was a series of communications between the Claimant’s line manager and a director of the Respondent in which they discussed the Claimant and whether they could dismiss a pregnant employee. The Claimant was then dismissed by her line manager on 26 January 2018.
The Claimant’s claim arose under s18 of the Equality Act 2010. S18 provides that an employer discriminates against a woman if, in the ‘protected period’ in relation to her pregnancy, they treat her unfavourably because of her pregnancy (S.18(2)(a) or because of illness suffered by her as a result of it (S.18(2)(b)).
The central question for the Employment Tribunal to decide was:
‘Was the Claimant treated unfavourable by being dismissed during the protected period because of pregnancy? The respondent states that the dismissal was because the claimant’s work was unsatisfactory.’
With regards to the burden of proof, it requires a two-stage analysis (Igen v Wong lTD  ICR 931, CA). At the first stage, the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been proven on the balance of probabilities is the second stage engaged, whereby the burden ‘shifts’ to the respondent to prove that the treatment in question was ‘in no sense whatsoever’ on the protected ground.
The decision of the Employment Tribunal (ET)
It was accepted by the Claimant and the ET that there were some issues with the Claimant’s performance prior to her dismissal and that she was issued with a warning in October 2017. However, they went on to find that her performance improved after the warning and that employees with worse performance than the Claimant were not dismissed. The Respondent attempted to rely on 8 separate incidences of poor performance on the part of the Claimant, but the ET held that only one of those was genuinely an issue and that was not serious enough to warrant her dismissal.
The ET held that the Claimant had proven facts from which they were able to infer that discrimination had taken place. The burden of proof then shifted to the Respondent who failed to show that on the balance of probabilities the dismissal was in no sense whatsoever because of the Claimant’s pregnancy. Consequently, the ET held that the Claimant had been dismissed because of her pregnancy.
The Employment Tribunal awarded the Claimant the following sums in compensation:
- £12,024 in respect of loss of earnings (and loss thereon)
- An ACAS uplift of £1,170
- Injury to feelings: £13,200
- Failure to provide written statement of particulars: £900 (three weeks’ gross salary)
Our solicitors’ views on the case of Miss Ludwiczak v Your Square Limited
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “this case demonstrates that employers need to be very careful when dismissing pregnant employees as they will need watertight evidence to show that the reason for their dismissal was unrelated to the pregnancy”
The decision of the Employment Tribunal in Miss Ludwiczak v Your Square Limited (3200758/2018) can be found here.