In Mrs Bosch v FAC Property Consultants Limited(ET/1401369/2018) an employee’s complaint of pregnancy discrimination was upheld, and she was awarded over £40,000 in compensation, after her employer first considered making her redundant than commenced capability proceedings against her after she advised them she was pregnant.
The facts in Bosch v FAC Property Consultants Limited
Mrs Bosch, (the ‘Claimant’) worked for FAC Property Consultants Limited (the ‘Respondent’) an estate agent. She was taken on by the Respondent originally to increase sales in their Bodmin office, where there had only been two sales during the whole of 2016.
The Claimant was initially very enthusiastic about her new role and came up with lots of suggestions for improving sales, but due to the fact that the business had been losing money for some time, there was no appetite for additional expenditure given the poor level of sales. A manager at the Respondent’s, Mr Harvey, made it clear to the Claimant that results were required as soon as possible, or the branch would close. The Claimant was given performance targets in terms of the number of properties she was required to sell per month and told she had three months to turn the office around or it would be shut, and she would have to work in the Par office or face redundancy.
The Claimant was under a lot of pressure to bring sales in but remain motivated. She tried to make it clear to Mr Harvey that there was a pipeline of about 8 weeks from valuation to payment and that he would have to be realistic about how much time it would take to see the required changes.
In June 2017 there were two sales agreed, 1 in July and 1 in August, then none in September and October. The Claimant was not hitting the sales targets Mr Harvey had imposed.
On 2 October 2017 the Claimant e-mailed a Mr Rees at the Respondent to say she was pregnant. He suggested a meeting the following day. At that meeting it was suggested to the Claimant that she should step back to a less stressful role to ensure her health was not affected by work-related stress. The Claimant responded by saying she was not stressed.
Mr Rees then told Mr Harvey about the pregnancy. At a monthly manager meeting on 5 October 2017 Mr Harvey referred to a tenant as ‘Alice the slag’ when he made reference to the fact that she got pregnant whenever she had money troubles. He then asked about a colleague called Beth who was on maternity leave and made the point that he only had an obligation to offer her a full time role on her return from maternity leave and that as she would want to come back part time, this was a way of getting rid of her.
The Claimant was asked to meet with Mr Rees and Mr Harvey on 26th October when she returned to work after her honeymoon. At that meeting she was told that her health had affected her performance during the weeks before she went on honeymoon and she was asked if she wanted to take a pay cut and drop down to a negotiator’s salary. They said that the figures showed that she had failed in her role as a manager and she would have to move to the Bodmin office from the following week. She was advised that if things didn’t improve either her of one of her colleagues would be made redundancy in January. The Claimant again requested a marketing budget and was refused.
During that meeting she was also asked whether her husband was the same religion as her and whether they celebrated Easter and Christmas.
In a follow up email summarising the meeting, it was confirmed that they had proposed to the Claimant that she step down and that her salary would be reduced as a consequence. The Claimant responded by e-mailing to confirm that it was the second time it has been proposed to her that she take on a more junior role with less pay since announcing her pregnancy.
On 31 October, a Friday, she received an e-mail at 8.24pm advising her to go into the Par office on Monday rather than Bodmin. There was a short burst of renewed activity in the run up to a monthly manager meeting on 8 November. In that meeting the Claimant was reduced to tears by Mr Harvey when he told her she had failed and that there were no results.
On December 2015 the Claimant was invited to a capability meeting. The letter set out performance concerns, a lack of progress in securing business and generating sales and a reduction in return from the ‘previously successful’ Par Branch. The letter went on to say her employment could be terminated. On 18 December the Claimant went off sick and then started maternity leave. She commenced proceedings in the Employment Tribunal and then resigned from her position at the Respondent’s.
The decision of the Employment Tribunal
The Claimant’s complaint of discrimination on the grounds of pregnancy and maternity was upheld. The ET held that she was threatened with dismissal on the grounds of capability because she announced she was pregnant. They found that there were a number of examples of the Claimant having being treated unfavourably because of her pregnancy and these included (i) being pressed to accept a demotion immediately following the announcement of her pregnancy (ii) being threatened with redundancy (iii) being invited to a capability hearing with a view to dismissal. Ultimately the ET accepted that the Claimant had done everything she could to turn the Bodmin office around and as such capability proceedings were held to be completely inappropriate in the circumstances.
The ET also upheld her complaint of harassment on the grounds of religion and belief in respect of the remarks made at the meeting on 27 October and the e-mail sent during the sabbath. However, her complaint of direct discrimination on the grounds of religion and belief was dismissed.
The Employment Tribunal awarded the Claimant £41,065, comprised of the following:
- Non-financial losses (injury to feelings etc.): £23,542
- Financial losses (loss of earnings etc.): £16,192
- Grossing up for tax: £1,331
Our solicitors’ views on the case of Mrs Bosch v FAC Property Consultants Limited
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “In this case the employer’s attitude to the Claimant changed almost immediately upon being advised that she was pregnant. The closure of one of their offices could have provided for a genuine redundancy situation, but the Respondents tried to get rid of the Claimant prior to her going off on maternity leave and this is what led to the Claimant successfully bringing proceedings against them.”
The decision of the Employment Tribunal in Mrs Bosch v FAC Property Consultants Limited(ET/1401369/2018) can be found here.