Employee unfairly dismissed but not discriminated against because of her intention to become pregnant (Stower v C & L Facilities Limited)

In the case of Stower v C & L Facilities Limited ET/3200209/2016 the Employment Tribunal held that Mrs Stower had been unfairly dismissed but not discriminated (because of her pregnancy) against when she was dismissed from her employment.

The facts in Stower v C & L Facilities Limited

Mrs Stower commenced employment with CS Maintenance on 30 August 2011 as as a Maintenance Coordinator, based in the  West Horndon office. In December 2012, as a result of an acquisition and merger, her employment transferred to C & L Facilities Limited (“C&L”).

In July 2015 Mrs Stower married her partner and she alleged that from around this date she talked with her colleagues about her intention to have a baby; she also discussed with colleagues the fact that she had given up alcohol and smoking with the intention of facilitating a healthy pregnancy.  In August 2015 Mrs Stower’s line manager to date, Mr Canfer, was dismissed. Mrs Stower alleged that on 19 August 2015 she had discussed with Mr Abel (a senior manager) the fact that she intended to have a baby in the near future. Ms Douglas replaced Mr Canfer as Mrs Stower’s line manager as of 7 September 2015.

Mrs Stower took 2 days’ annual leave on 7 and 11 September 2015 and returned to work on 14 September 2015. When she returned to work she found that her desk had been moved so that she was now facing the wall. On the same date Ms Douglas complained that she felt that some employees, including Ms Stower and another colleague, Ms Thearle, were deliberately making life difficult for her in the office.

On 15 September 2015 Mrs Stower was called to a disciplinary hearing with Ms Douglas – she was given no advance notice of this meeting, was not informed of any disciplinary issues prior to the meeting, and was not given the opportunity to arrange for a third party to attend with her. This disciplinary hearing was arranged, in part, to discuss Ms Douglas’ view that Mrs Stower had a bad attitude. Mrs Stower responded that she didn’t understand what this perception was based on, and that she believed that she came into work, “put her head down”, and got on with matters.

After the meeting on 15 September 2015 Ms Douglas wrote to Ms Stower (in a letter dated 17 September 2015) stating that she was giving her a verbal warning, including the allegations that had been put to her (including a lack of respect for her new manager, a bad attitude, and disobeying management instructions). Ms Thearle was also provided with a verbal warning relating to her conduct.

In October 2015 C&L advertised for three new vacancies – one of these vacancies was to replace a retiring employee, but Mrs Stower (who saw the advert) was concerned that a position substantively similar to hers was being advertised as vacant. She enquired with Mr Abel about this at the time and was reassured that the intention was not to replace her.

On 26 October 2015 a management meeting took place at 9.30am, attended by Mr Abel, Ms Douglas, and a number of other managers. In this meeting Ms Douglas reported that she had given Mrs Stower a further warning on 23 October  2015 (although she had not).

On 29 October 2015 Mr Abel was working from home. No other senior managers were present in the office that day. On that date Mr Abel received a report from a colleague at work that Mrs Stower was “causing havoc” and acting in an “uncontrollable and frightening” manner. Mr Abel subsequently drove to work, called Mrs Stower and Ms Douglas (who was not at the office) into a meeting, and summarily dismissed Mrs Stower on the grounds that he “had had enough” of her behaviour. Mrs Stower was not informed of the purpose of the meeting or the disciplinary allegations prior to the hearing.

A letter dated 30 October 2015 was subsequently sent to Mrs Stower confirming her dismissal. Despite Mrs Stower requesting an appeal no such appeal process was commenced.

Shortly prior to dismissal Mrs Stower ascertained, through a home pregnancy test, that she may be pregnant. This pregnancy was not, however, confirmed until she attended her doctors’ surgery for a pregnancy test in December 2015.

After her dismissal Mrs Stower made claims to the Employment Tribunal for unfair dismissal, direct sex discrimination (section 13 Equality Act 2010), and discrimination because of pregnancy or maternity (section 18 Equality Act 2010).

The decision of the Employment Tribunal in Stower v C & L Facilities Limited

The Employment Tribunal upheld Mrs Stower’s unfair dismissal claim but dismissed her claims for discrimination.

With regards to the unfair dismissal claim, the Employment Tribunal held that her dismissal was outside of the range of reasonable responses: there were clear breaches of proper disciplinary practice in the run-up to the termination of Mrs Stower’s employment and, further, Mrs Stower had been denied an appeal after she was dismissed. The Tribunal commented that it could see no reason to reduce Mrs Stower’s compensation for unfair dismissal for ‘Polkey’ or ‘contributory fault’ reasons.

With regards to the discrimination claims, the Employment Tribunal held that Mrs Stower had not been subjected to detriments or dismissed because of her pregnancy (or her intention to become pregnant or take maternity leave): the Tribunal concluded that the dismissing manager, Mr Abel, had not been aware of Mrs Stower’s intention to become pregnant (and could not have inferred such through Mrs Stower stopping smoking and drinking), and that the reasons for the treatment that Mrs Stower was subjected to were related, broadly, to incompetence rather than an intention to discriminate against Mrs Stower because of her intention to become pregnant and/or take maternity leave.

Our solicitors’ views on Stower v C & L Facilities Limited

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that employers can escape liability for discrimination if they can plead ‘incompetence’ as a reason for what occurred – equally, however, what was important in this case is that the employer could point to a previous positive attitude to women on maternity leave prior to the issues that the Claimant experienced in this case.”

The judgment of the Employment Tribunal can be found here