An employment tribunal has awarded a pregnant employee over £93,000 in compensation after finding that she had been dismissed for taking time off work due to morning sickness. It was found that the dismissal was automatically unfair and discriminatory. Furthermore, in a move which attracted criticism from the judge, the employee had been dismissed by text message – which was found to be trying to obscure the situation.
The case of Miluska v R A R Hussain and others is a reminder for businesses to be alert to discrimination issues and the importance of treating pregnant employees, and others, fairly and appropriately when dealing with HR matters.
What happened in the case?
In brief, around seven months after starting employment the employee became pregnant and started to experience severe morning sickness. She informed the Company of this and it was agreed she could work from home during this time. Soon after, the employee was sent a message asking if she could come into the office to provide cover for part of the week as Mr Kabir was going on holiday. The employee responded by saying her morning sickness had worsened, and she was unable to now work from home let alone the office, and needed to take the week off. If her morning sickness didn’t improve, she may have to be admitted to hospital.
A few days later Mr Kabir messaged in response:
“Hey hope ur OK u probably guessed by now will need to try and find someone to be in the office as we’re falling behind on work I just want to say I hope you don’t take it personally or see us as bad but we are really struggling. Aside from this me personally I’m going to try and see what other opportunities are there I can get you through the door for just message me when you’re feeling better. Romaan said he’s going to clear the days you did so up until 21st that will be with you today. Hope to see you soon we’ve got a lot of catching up to do outside of work [jazz hands smiley].”
The employee complained to the employment tribunal that she had amongst other things been subject to a discriminatory dismissal due to unfavourable treatment because of illness as a result of her pregnancy and that she had been automatically unfairly dismissed in connection with her pregnancy. She brought the claims against the Company and personally against those who had taken the decision to dismiss her.
What did the judge say?
The employee succeeded in those claims. The judge found amongst other things that:
- The employee had been dismissed by text message – the judge did not accept the employer’s (or other parties) arguments that the message wasn’t a dismissal. The judge commented that the “bad news being delivered, is not immediately obvious because it is given in an obscure and indirect way” and that the “ deliberately vague text message was written to dress up the bad news being delivered in as positive a way as possible, to soften the landing of the news… it is also objectively clear that this text message is bringing the employment to an end”. The arguments put forward that reference to ‘other opportunities’ being internal ones or talk about cover whilst the employee was unwell simply didn’t stack up. That the timing of the text message coincided with the employee’s usual pay date led the judge to believe there had been a deliberate choice to send it when they did to create “a clean break” and this also evidenced pre-planning to dismiss. The judge found that a reasonable person in the employee’s position would have understood the message to be a dismissal.
- The employee’s dismissal was discriminatory and automatically unfair – the judge found that it was “obvious” that the [employee’s ] dismissal was because of her morning sickness which caused absence from the office, which was proven by the text message and the facts of the case. The morning sickness was a result of her pregnancy. The judge held that “regardless of the reasons why the [employer ] alleged they needed cover for the office and have tried to justify the reasons for their decision, as soon as they dismissed the [employee ] because of her absence from work with morning sickness and the associated problems that it caused them with work cover, the action of dismissal was inherently discriminatory. As the employee was dismissed for a reason connected to her pregnancy, the dismissal was also automatically unfair.
The judge awarded the employee a total of £93,616.74 for which all three respondents in the case are liable (the employer and the two individual employees of the company against whom claims were also successfully brought).
Key takeaways
This case highlights the importance of ensuring employees are treated fairly, appropriately and in a non-discriminatory way when it comes to protecting your business from potentially costly claims. Bear in mind that there is no limit on the amount an employment tribunal can award if a successful discrimination claim is brought.
As you may have noted, the employee in this case had short service with her employer at the time of her dismissal, this is a reminder that whilst employees need two years continuity of service to qualify for ordinary unfair dismissal protection, there are many claims that can be brought from the first day of employment. If you have any HR concerns regarding a pregnant employee in your workplace or are considering taking action in relation to a pregnant employee for any reason, irrespective of their length of service, it’s vital to seek advice on the facts of your situation to avoid making a mis-step.