In the case of Ms J Sinnamon v Carexl Ltd (ET/3329420/2017) the Employment Tribunal held that a pregnant employee had been discriminated against and unfairly dismissed when she was told that she was no longer employed by the organisation upon from her return from maternity leave.
The facts in Ms J Sinnamon v Carexl Ltd
Ms Sinnamons (the ‘Claimant’) commenced employment with Carexl Ltd (the ‘Respondent’) on 27 July 2014 as a care assistant. She was later promoted to care co-ordinator and, in that role, was responsible for preparing the rotas of the staff as well providing care to clients herself.
In March 2016, the Claimant was made a director of the company and Mr Hanson, the Managing Director, promised her a transfer of 5% of the company’s shares. Her rate of pay was at that point changed to a flat rate of £15,000 per annum on the expectation of a dividend on those shares. On 31 July 2016, the Claimant informed Mr Hanson that she was pregnant.
On 18 August 2016 there was a problem with the rota and there was a suggestion that the Claimant did not turn up for work where and when she should have done. This caused some problems and as a consequence on 19 August 2016 Mr Hanson sent her a text message in which he referred to her conduct the previous night and that morning as having been “poor”.
Later that day, after the Claimant had finished her shift, Mr Hanson called the Claimant into his office. There was some dispute over what happened at this meeting – Mr Hanson stated that he had raised with the Claimant complaints of bullying against the Claimant by members of staff and that his view was that she was no longer suitable for her role; the Claimant’s recollection was that this meeting had related to discussions about the previous day and the rota (Mr Hanson subsequently sent the Claimant a text message confirming the Claimant’s version of events).
The Claimant walked out of the meeting on 19 August and was subsequently certified by her doctor as not unfit to work due to work-related stress. She did not again return to work with the Respondent, other than for some ‘Keeping In Touch Days’ (KIT Days).
On 25 August 2016 Mr Hanson wrote a letter to the Claimant in hostile terms stating that items of company property in Ms Sinnamon’s possession “should be returned to the office by return, for example fuel cards, client keys and care plan sheets that several clients informed us you have removed”.
On 30 August 2016 the Claimant posted a letter through the Respondent’s mailbox confirming that she wished to commence her maternity leave on 1 November 2016.
Mr Hanson wrote to the Claimant on 20 September 2016 acknowledging receipt of the MAT1B form.
On 28 September 2016 there was a meeting between the Claimant and Mr Hanson. The notes of this meeting recorded that the Claimant’s maternity leave would start in November and dates would be confirmed by the Claimant by email.
On 10 October 2016 Mr Hanson wrote a letter in hostile terms (noted by the Employment Tribunal as “insensitive”) when the Claimant was off work with stress. This letter informed the Claimant that her sick note had run out and another one has not been received as yet. The letter read “If you do not contact us in writing with your intentions within the next 7 days we will have no alternative but to presume that you have left the company”. In addition, another manager at the Respondent (Mrs James) sent the Claimant a letter on 11 October 2016 pressing the Claimant for confirmation of the start date of her maternity leave.In this letter it stated, “that you’ve stated you’ve already informed us but we haven’t received anything so please give us this information as soon as possible”. The Claimant replied the next day, stating that the start date would be 1 November 2016. Her maternity leave started on 1 November 2016.
In the month of October the Claimant took 29 days accrued annual leave, for which she had been promised payment. On 18 October 2016 Mr Hanson wrote an email to the Claimant confirming that the Claimant’s maternity leave would start on 1 November 2016 – the letter, however, mistakenly stated that: “you are legally entitled to 52 weeks leave and must give us 8 weeks’ notice in writing when you intend to return to work” (8 weeks’ notice is only required if an employee on maternity leave wishes to return early from her period of maternity leave). The email went on to confirm the Claimant would be paid 29 days holiday for the month of October.
On 14 March 2017 the Claimant met with the Respondent and continued to have a number of KIT Days with when she came into work, so the Respondent would have been aware when she intended to return to work.
On 10 October 2017 one of the company’s NVQ providers informed Mr Hanson in a telephone conversation that she had been told by an employee of the Respondent that the Claimant was no longer employed by the company. Following a request from the Claimant this was subsequently confirmed by the NVQ provider who provided an email on 10 October 2017 to her stating ”I had to cancel the appointment booked for today due to the employer advising me that you no longer work for them”.
After receiving this email he Claimant sent several emails in October 2017 to Mr Hanson querying whether she was still employed by the Respondent. chasing the on the subject of her employment status.
The Claimant managed to make contact with Mr Hanson via telephone on 26 October 2017 and asked him for clarification of where she stood regarding the email from the NVQ provider. Mr Hanson told the Claimant that she was now unemployed and as she had not replied to an email sent to her in August they had assumed that she was not coming back. The Claimant asked for confirmation that she was no longer employed by the Respondent company and was told that no, she was not. Following this conversation the Claimant took legal advice and her solicitors wrote to the Respondent on 30 October 2017 referring to the telephone conversation and say that their client had been told that she was no longer employed as a result of failing to respond to an email.
The Respondent replied merely to say that information had been passed on to their solicitors who would be in touch.
On 14 December 2017 Ms Sinnamon issued a claim for unfair dismissal, pregnancy-related discrimination, payment of holiday pay, and for notice pay.
The decision of the Employment Tribunal (ET)
The Employment Tribunal held that the Claimant had been unfairly dismissed as the Respondent had failed to establish a potentially fair reason for her dismissal (the Respondent had given various reasons for the Claimant’s dismissal, including that the Claimant had not been dismissed at all).
The Employment Tribunal also held that the following conduct amounted to pregnancy-related discrimination: the removal of the Claimant as a director, emails confirming she was no longer employed, failure to respond to her solicitor’s letter all contributed to the fact her employment had been terminated.
The Claimant was awarded a total of £15,825.57. This was comprised of the following:
- Loss of earnings: £7,478.30
- Injury to feelings: £6,000
- Accrued holiday pay: £616.51
- Notice pay: £865.38
Our lawyers’ views on the case of Sinnamon v Carexl Ltd
Stephen Norton, a Legal Executive in the Redmans employment team, commented on the case: “The employer is this case made a clumsy attempt to dismiss one of their female employees rather than being proactive in supporting a female member of staff through her period of maternity and facilitating their return to work. Clearly she had been promoted in recognition of her value and worth to the company, only to then face poor treatment and discrimination later on when she became pregnant and an inconvenience to them. The Employment Tribunal saw through this blatant attempt to dismiss a female employee and shoddy practice.”
The decision of the Employment Tribunal in Ms J Sinnamon v Carexl Ltd (ET/3329420/2017) can be found here.