The Employment Tribunal (ET), in the case of Hinds v Mitie Limited, had to consider whether the treatment of an employee during their pregnancy, maternity leave, and upon their return to work constituted discrimination and entitled them to resign and claim constructive unfair dismissal.
Facts:
The claimant, who was around seven months pregnant at the time, sent an email to two of the respondent’s leadership team, both who had line management responsibilities to the claimant at various times. In the email, the claimant explained that they were “really struggling” with certain aspects of the role, had experienced two panic attacks that week, significantly disrupted sleep, and they were concerned that they might become seriously ill with work stress and anxiety because they were struggling mentally and physically with the workload. The claimant concluded their email with a request to establish a handover plan to resolve the situation.
No specific response was provided to the claimant about their email. Instead, the respondent’s Account Manager sent an internal email which stated that the claimant “…has become very emotional and tearful especially over the last week or so. I am very frustrated with this as she is certainly not overworked, and we have been very supportive in helping her manage her workload…”
The claimant went on sick leave two working days after they sent the email and brought forward the start of their maternity leave.
During their maternity leave the claimant asked for Keeping in Touch Days, however there was again a lack of a response direct to the claimant about them, the Account Manager just sent an email to the respondent’s payroll team saying, “This is approved”. The claimant’s return from maternity leave was also not handled well and certain communication was again lacking.
Around a month after their return from maternity leave, the claimant was certified as unfit for work with post-natal depression, and they ultimately resigned around six weeks later.
The claimant brought claims for constructive unfair dismissal and pregnancy discrimination.
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Employment Tribunal:
Following receipt of the claimant’s email, the ET held that the respondent should have considered altering the claimant’s working conditions, hours of work, redeployed the claimant to a suitable alternative role, or failing that, to suspend them on full pay. They found that there was an “obvious and pressing need” for the respondent to complete a risk assessment. However, the respondent failed to do any of this.
The ET held that the internal email sent by the respondent’s Account Manager was stereotyping the claimant as an “emotional, hormonal pregnant woman” and that their description of the claimant was dismissive and belittling. The inference was that the claimant was not fully in control of their emotions because of the pregnancy.
The ET found that the lack of an adequate response to the claimant’s email and the failure to ensure that a risk assessment was undertaken was because of the claimant’s pregnancy. The claimant’s discrimination claim on this issue therefore succeeded.
The respondent’s failure to undertake a risk assessment during the claimant’s pregnancy, ahead of or on their return to work following their maternity leave, as well as the Account Manager’s lack of effective response to the claimant’s email, also meant that trust and confidence was ultimately destroyed. The ET found, therefore, that the claimant was constructively unfairly dismissed.
Remedy:
At an initial remedy hearing, the claimant was awarded a basic award of £6,528 in respect of the unfair dismissal, the sum of £20,000 as compensation for injury to feelings as a result of discrimination, and £7,123.29 interest. Recent news reports confirm that a further remedy hearing has now taken place to look at the award the claimant should receive for their loss of earnings, and it is reported that the claimant has been awarded a total of more than £350,000.
Whilst unfair dismissal awards are capped, discrimination claims are not, and this case shows that such awards can, therefore, be very costly. It also shows how entwined HR is with Health and Safety - Peninsula can support you with both.
