In the case of Kimberley Hill v 9ine Accounting Limited, the employee successfully brought a claim against her former employer for pregnancy discrimination, automatic unfair dismissal and failure to provide a written statement of employment particulars.
Kimberley Hill commenced working at 9ine Accounting Limited, a Nottingham-based accountancy firm, on 21 October 2019. She discovered she was pregnant a short time after in February 2020.
Ms Hill gave evidence at the Employment Tribunal hearing that her manager and sole director of the accountancy firm behaved in a contradictory way once she disclosed her pregnancy to him. He congratulated her and was ‘great’ one minute but also made ‘little digs’, as if he was not happy for her and was upset about the impact of her pregnancy on him and his business. On 11 February 2020, Ms Hill disclosed the news of her pregnancy to her manager who responded with “well, that’s my plans for you ruined.” This comment made Ms Hill feel “panicky:” She did not know whether her job or the plans for her progression had ‘gone’. Just two days later, on 13 February 2020, her manager’s personal assistant was dismissed. He told Mrs Hill “that would have been your new office but now you will be leaving soon”. This comment understandably made Ms Hill feel “on edge” and unsure of her future with her employer.
In June 2020, Ms Hill became unwell due to her pregnancy and was advised by her midwife to start her maternity leave earlier than she had intended. On 22 June 2020, whilst signed off as unfit for work, Ms Hill emailed her manager explaining that she wanted to start her maternity leave earlier and enquired about taking her accrued annual leave before her maternity leave commenced.
Her manager responded on the same day via email, writing how he “completely understood”, her request and also commented “enjoy the rest of the pregnancy.” He then went on to request particular information from Mrs Hill about where she was up to on some of the projects she had been working on.
Despite the uncontroversial response of her manager, in a turn of events, he subsequently emailed Ms Hill on 30 June 2020 dismissing her with just one week’s notice, (the effective termination date being the 7 July 2020). His email alleged that she had not been keeping up with her workload and referred to errors that had been found with her ‘archiving.’ Allegations were made about important client files being hidden in Ms Hill’s draws, numerous client records beneath her desk and other client files which should have had a ‘home.’ The email addressed how there had been a distinct difference in Ms Hill’s work ethic stating how she initially “started life with 9ine with such vigour and enthusiasm that it appeared [she] would grow with the business and become a great asset within.” The email then went on to state “I don’t think your mind has entirely been on work when you have been in the office”.
In August 2021 until May 2022, Ms Hill and her family had to move in with her husband’s parents, (a 2 bedroom flat with 3 children) because she and her husband had both lost their jobs and their home.
Ms Hill subsequently brought forward the following claims against her former employer at the employment tribunal:
(a) that she was subjected to pregnancy discrimination contrary to section 18 of the Equality Act 2010; (section 18(2) provides that a pregnant woman suffers discrimination if she is treated ‘unfavourably’ and that treatment is because of her pregnancy or an illness arising as a result of it.)
(b) that she was automatically unfairly dismissed contrary to section 99 of the Employment Rights Act 1996;
(c) that her employer failed to follow the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice on Disciplinary and Grievance Procedures; and
(d) that her employer failed to provide her with a written statement of contract particulars contrary to section 1 of the Employment Rights Act 1996.
Following a hearing on 28 September 2022 before Judge R Broughton, all 4 of Ms Hill’s claims were deemed to be well founded and were successful.
Pregnancy discrimination and unfair dismissal
Judge Broughton held that although Ms Hill’s manager raised issues about her performance in his email dated 30 June 2020, there had been no previous disciplinary proceedings and only a few months before, he had indicated that he had expected her to progress within the business. Judge Broughton concluded that the sole, and if not certainly the principal reason, for the decision to terminate Ms Hill’s employment was the fact of her pregnancy and/or that she was seeking to exercise the right to take ordinary or additional maternity leave. The issues raised about her performance were simply used as an excuse for terminating her employment and were not in any event, so serious that he would have otherwise terminated her employment.
Judge Broughton noted that the financial difficulties Ms Hill suffered and the impact on her homelife flowed from the act of discrimination. While there were other factors, the loss of employment was accepted as being a material factor.
Failure to follow the ACAS Code of Practice
Though the manager applied the ACAS procedures to some extent in that he wrote to Ms Hill on 30 June 2020 and provided reasons for the decision to terminate her employment, Judge Broughton held the failure to comply with the ACAS Code was unreasonable, serious and on a balance of probabilities deliberate.
Whilst Ms Hill was absent on sick leave, it was held that a meeting could have been convened with her at her home or even remotely or at least some discussion had with her by telephone rather than an email which made allegations of poor performance and immediately terminated her employment. There was no attempt to inform Ms Hill of the details of the alleged problems prior to the decision to terminate her employment. She was not told which files had not been dealt with and not told what the alleged problems with the archiving project were. There was also no disciplinary hearing with Ms Hill to discuss the alleged issues. The employer had therefore failed to comply with the ACAS code.
It was held that an investigation could have been carried out which involved Ms Hill. The manager’s mere personal observations of what he believed had or had not happened, did not constitute a meaningful investigation. There was no attempt to establish the facts. While it is not necessary in all cases to hold a meeting with the employee, it was held that the fact that the manager had himself alleged that Ms Hill’s mind was ‘elsewhere’, meant that it would have been incumbent on him to at least make some effort as part of an investigation process to invite an explanation from her. There was therefore a failure to comply with paragraph 5 of the ACAS code.
The manager had also failed give Ms Hill a warning before her dismissal and an opportunity to improve. It is not alleged in the emails that the issues were so serious as to amount to a fundamental breach of the employment relationship and nor did the manager set out what actual harm or impact the alleged performance issues had on the business. There had therefore been a breach of paragraphs 19, 20 and 21 of the ACAS code.
In further breach of the ACAS Code (namely paragraph 22), the manager failed to inform Ms Hill of her right of appeal, and instead proceeded to confirm the decision to terminate her employment.
Failure to provide a written statement of contract particulars:
Prior to 6 April 2020, a section 1 statement had to be provided to employees no later than two months after their employment started (section 1 (2) Employment Rights Act). However, with effect from 6 April 2020, the right to a written statement is now deemed a ‘day one’ right pursuant to regulation 3 of the Amendment Regulations. As such, there had been a breach of this requirement.
Ms Hill was awarded £15,995.78 for injury to feelings in respect of the comments and the dismissal and for the failure to provide her with written particulars of employment. A final decision is awaited concerning the sum to be awarded for loss of earnings following her dismissal.
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