In the case of Ms K Barnes v Douglas Leisure (North West) Ltd T/a The Wiend Bar (in Liquidation) and others: 2423941/2017, the Employment Tribunal held that a member of bar staff was dismissed because of her pregnancy, rather than because she was redundant or because she had engaged in misconduct.
The facts in Ms K Barnes v Douglas Leisure (North West) Ltd T/a The Wiend Bar (in Liquidation) and others
Ms Barnes started working at Douglas Leisure (North West) Ltd t/a The Wiend Bar (“the Bar”) in November 2015 as assistant manager. Mr Clayton and Mr Douglas were two of the four directors of the Bar and the majority shareholders, each having a 45% shareholding; Mr Douglas also assumed personal responsibility for the lease of the Bar premises and funded the refurbishment costs.
The Bar was originally projected to turn over up to £11,000 per week, but was only achieving approx £6,000 per week instead. As time went on Mr Douglas and Mr Clayton decided to cut costs, cancelling the Sky subscription and ordering staff to keep a close eye on costs.
In May 2016 an employee was dismissed as ‘redundant’ because a customer made a complaint about her.
By March 2017 Mr Clayton and Mr Douglas were considering making Ms Barnes redundant in order to improve profitability; however, Mr Clayton persuaded Mr Douglas that they should not make Ms Barnes redundant – this was in part because Mr Clayton was due to get married shortly, and he wished for Ms Barnes to cover his shifts at the Bar whilst he was on honeymoon.
In May 2017 the Bar employed two new staff on a part-time basis.
On 20 June 2017 Ms Barnes sent Mr Clayton a message with a picture of a positive pregnancy test. She also sent a message jokingly asking what she should do next given the fact that she was pregnant. Mr Clayton replied “laughing” and he then messaged her “gonna push you downstairs”.
On 25 June 2017 Mr Clayton informed Mr Douglas of Ms Barnes’ pregnancy.
On 29 June 2017 Mr Douglas was asked by a third party whether the Bar would be closing soon, as they had attended the Bar recently and there had not been much stock on show. On 30 June 2018 Mr Douglas attended the Bar and found that there was very little stock on the premises. He spoke to Mr Clayton who blamed Ms Barnes for the lack of stock, as she had allegedly overslept and missed a delivery.
On 6 July 2017 Mr Douglas had a telephone conversation with Ms Barnes – in this conversation he informed her that he believed that she was to blame for the lock of stock at the Bar; he also informed her that the Bar was in financial difficulties and that they could not afford to pay her any more.
On 10 July 2017 Mr Douglas sent Ms Barnes a letter confirming that she was being dismissed for various reasons, including that the business was in financial difficulties and that he felt that she was responsible for the lack of stock.
On 26 October 2017 the Bar went into creditors’ voluntary liquidation.
Ms Barnes subsequently made claims in the Employment Tribunal, alleging:
- That Mr Clayton’s texts on 20 June 2017 constituted unfavourable treatment because she was pregnant;
- That Mr Douglas’ conduct on 6 July 2017 constituted unfavourable treatment because she was pregnant; and
- That she had been dismissed because she was pregnant
The decision of the Employment Tribunal (ET)
The Employment Tribunal held that the conduct of Mr Clayton and Mr Douglas on, respectively, 20 June 2017 and 6 July 2017 did not constitute pregnancy discrimination – Mr Clayton’s conduct on 20 June 2017 was, the Tribunal found, part of a joke with Ms Barnes and was not serious, and it found that Mr Douglas’ conduct on 6 July 2017 constituted part of his act to dismiss her and therefore not a separate act to that of the dismissal.
The Employment Tribunal did find, however, that the reason for Ms Barnes’ dismissal was because of her pregnancy, and therefore found her dismissal to be an act of discrimination and automatically unfair. The Tribunal found that Ms Barnes would not have been dismissed at the beginning of July 2017 and that there was a significant causal connection between the timing of her announcement of her pregnancy and her dismissal; there was not a redundancy situation that existed at any time and Mr Douglas also, the Tribunal found, acted ‘in haste’ once he was told that Ms Barnes was pregnant.
The Employment Tribunal ordered a remedy hearing be held on a separate date.
Our solicitors’ views on the case of Ms K Barnes v Douglas Leisure (North West) Ltd T/a The Wiend Bar (in Liquidation) and others
Chris Hadrill, the partner in the employment department at Redmans, made the following comment on the case: “Once employers are aware that an employee is pregnant they should take great care to ensure that any action taken against the pregnant employee is reasoned, justified, and fair, otherwise they may face a claim of pregnancy discrimination as in this case – act in haste, repent at leisure.”
The decision of the Employment Tribunal in Ms K Barnes v Douglas Leisure (North West) Ltd T/a The Wiend Bar (in Liquidation) and others: 2423941/2017 can be found here.