In the case of Mrs L Herring v J Lovric & Son (ET/3200293/2019) the Employment Tribunal held that the dismissal of a pregnant employee for alleged capability reasons was both discriminatory and automatically unfair.
The facts in Herring v J Lovric & Son
Mrs L Herring (the “Claimant) commenced work at J Lovric & Son (the “Respondent”) who traded as a motor garage, on 16 August 2017 as a Sales Assistant. The Claimant worked 16 hours a week over a number of shifts. As part of her duties she had to ensure that the newspapers were unbatched and put out on display. She had to carry heavy bundles of newspapers into the shop at the start of her shifts. The Claimant had not been trained to adopt any particular method for doing this by the Respondent. In addition to this she had to restock the milk in the fridge which arrived in large packs containing several milk containers, typically two litre containers wrapped together in batches of six or eight making the load heavy and difficult to carry into the shop before unpacking. On the 4 November 2017 the Claimant was late for work and reported this to a manager via text and this appeared to be accepted as an isolated incident with no indication any further action would be taken.
The Claimant discovered on 5 January 2018, that she was pregnant. Her expected date of delivery was 11 September 2018. She informed her employers of her pregnancy on 8 January 2018. Thereafter, the Claimant swapped shifts where necessary so that she could attend ante-natal appointments without taking time off work. She was feeling unwell in her first trimester, suffering from repeated instances of morning sickness. The Claimant was particularly unwell on 24 February 2018, having suffering badly from morning sickness in her first trimester, and arrived late for her shift in the shop. She sent an apologetic text to one of her managers but no response received. The Claimant was then issued with a verbal warning for lateness.
On the 26 March 2018 the Claimant was hospitalised following health concerns over high risk of pre-eclampsia through hypertension. The Claimant submitted a sicknote which was the first of many. The claimant had a difficult pregnancy and sadly her child died on 17 April 2018.
She suffered a number of health complications and gynaecological problems and remained off work. Numerous communications were exchanged via letter, text and email between the Claimant and Respondent on access to medical records and arranging a case conference for the Claimant to discuss her return to work and possible reasonable adjustments. She also raised a grievance which was heard in August 2018 which she felt unable to attend in person. In this grievance she complained about:
- the previous verbal warning, alleging her absence was for a pregnancy related reason
- that she had not been offered a disciplinary hearing before the sanction was imposed
- The lack of a pregnancy risk assessment, and needing to get help from her husband with the heavier aspects of her job
- The delay in paying her statutory sick pay, the circumstances of her occupational health consultation and the distress she experienced in being “harassed” for further medical information
- The “threat” that decisions could be made about her future employment if she did not consent to providing further medical information as “bullying”. She also complained about the lack of payslips when she first started.
The Respondent rejected these allegations and following a Case Review meeting on 6 September 2018 dismissed the Claimant on the basis of capability due to sickness absence. No reasonable adjustments had been made prior to the Claimant’s dismissal, and she appealed on the basis her employment had been terminated by reason of her pregnancy. This was refuted by the Respondent arguing as she had lost the baby at 19.5 weeks she could not be defined as pregnant both medically and as defined by the Equality Act 2010.
The Claimant lodged a claim at the Employment Tribunal (ET) arguing she had suffered direct sex discrimination and direct discrimination on grounds of pregnancy in the way in which she was treated in advance of her dismissal, and in the dismissal itself.
The Preliminary Hearing on 29 April 2019 narrowed down the detriments alleged:-
- Disciplining her for late arrival to work in February 2018, when the Respondent knew that the Claimant was late for a pregnancy related reason;
- Failing to carry out a pregnancy risk assessment;
- Needlessly requiring the Claimant to consent to her medical records being accessed to obtain a medical report;
- Dismissing her.
The decision of the Employment Tribunal
The ET held that the reason for the Claimant’s dismissal was connected to her pregnancy, and therefore the Claimant’s dismissal was automatically unfair.
The ET held that that the Claimant had been automatically unfairly dismissed for the following reasons:-
- The decision to issue the Claimant with a verbal warning in relation to events on 24 February 2018 was an act of direct discrimination because of illness suffered by her as a result of her pregnancy.
- The Respondent failed in its statutory duty to carry out a suitable risk assessment of the risks to the Claimant’s health during her employment which amounted to unlawful discrimination under s.18 of the Equality Act 2010.
- The Claimant’s dismissal was automatically unfair contrary to Section 99 Employment Rights Act 1996 and Regulation 20 Maternity and Parental Leave etc Regulations 1999. The ET concluded that the reason for the Claimant’s dismissal was connected to her pregnancy, and therefore the Claimant’s dismissal was automatically unfair.
Our solicitors’ comments on Herring v J Lovric & Son
Chris Hadrill, the partner in the employment team at Redmans, commented on the case: “Within the discussion of the relevant law there was an interesting analysis around what constitutes pregnancy and “giving birth” under the heading of what constitutes automatic unfair dismissal. A narrow approach would have been to support the Respondent’s argument that the Claimant fell outside the relevant law (and strict medical approach) that she was not pregnant at the time she was dismissed having lost her child after only 19.5 weeks (not the 24 weeks set out in the relevant EU Regulations). The ET took a wider based on domestic law ironically, and arguably more creative approach in interpreting the relevant law more widely as “any reason connected with her pregnancy” thus adding weight to this aspect of the Claimant’s case.”