Pregnant beauty therapist was automatically unfairly dismissed and discriminated against as a result of the failure to conduct a pregnancy risk assessment (Ms R Martin v Beauty Tonic 64 Beach Rd Limited and Mr May)
In the case of Ms R Martin v Beauty Tonic 64 Beach Rd Limited and Mr Gregory William May Case number 2405471/18, the Employment Tribunal held that an employee had been automatically unfairly dismissed when she was dismissed for being pregnant and discriminated against when her employer failed to conduct a pregnancy risk assessment.
The facts in Ms R Martin v Beauty Tonic 64 Beach Rd Limited and Mr May
The claimant, Ms Martin, started working for the first respondent as a beauty therapist in January 2017. Mr May, the second respondent, was the Managing Director of the first respondent, Beauty Tonic 64 Beach Rd Limited (“Beauty Tonic”). In August 2017 the claimant informed the Mr May that she was pregnant and in or around September 2017 the claimant asked him for time off to attend an antenatal appointment. The claimant was advised to book the day off as holiday or she would not be paid. She went on to use annual leave for all of her ante natal appointments. Later on that year, Mrs Moreton-Derain was appointed area manager and her duties included managing the salon where the claimant worked.
In November 2017 the claimant took the day off work for an illness relating to her pregnancy. Mrs Moreton Derain was Facebook friends with the claimant and checked her Facebook status that night and noticed that the claimant’s public entries showed that she had gone shopping with her partner that evening. Mrs Moreton Derain did not discuss the Facebook post with the claimant. On 21 November the claimant asked for the day off to attend hospital for blood tests and because she felt tired. Mrs Moreton-Derain again checked the claimant’s Facebook page and noticed that the claimant had posted of her intention to visit a friend on the 21 November. This time Mrs Moreton-Derain did ask the claimant about her Facebook post and was told by the claimant that in fact, she had not gone to visit her friend’s salon after all.
Around the same time Mrs Moreton-Derain asked the claimant on numerous occasions whether she intended on leaving her job because of her pregnancy and the claimant became upset with Mrs Moreton-Derain repeatedly asking her about her future intentions.
On 28 November 2017 Mr Campbell, a friend of the claimant’s with HR experience, sent an email to Mrs Moreton-Derain requesting, amongst other things, a copy of the findings from the first respondent’s workplace risk assessment and in particular those relevant to the Pregnant Workers Directive. Mrs Moreton-Derain replied stating she would provide it as soon as possible, but after discussion with Mr May, a decision was made not to reply to the e-mail.
On 29 November Mrs Moreton-Derain attended the claimant’s place of work with the stated purpose of carrying out the risk assessment. However, she failed to complete a risk assessment form and she did not discuss with the claimant any concerns she had about working at the salon or with chemical as she was required to do. She went on to prepare a hand-written note stating the assessment had taken place and asking the claimant to sign it, which she refused to do.
On 30 November for the first time Mr May complained about the claimant’s personal use of the work mobile phone. On 2nd December Mrs Moreton-Derain and the Mr May attended the salon where the claimant worked and began interrogating her about who Mr Campbell was and made the comments ‘Why are you doing this to us?’ and ‘I thought we were mates’. At no time during that conversation did Mrs Moreton-Davies or Mr May discuss the claimant’s attendance record, or allegations regarding her conduct or capability.
On 7 December the claimant became aware of the fact that heavy snow was predicted for the following day which would mean she would be unable to attend work. She advised Mrs Moreton-Davies who told her not to worry and that she would get her shift covered. The same thing happened the next day and again the claimant contacted Mrs Moreton-Derain and was advised that she would reschedule her appointments. She did not contact Mrs Moreton-Derain or Mr May on the actual day to confirm her non-attendance.
She then received an e-mail at 12.15pm on the 9 December terminating her employment. The email stated that her employment was being terminated due to their warning about her absenteeism not being taken seriously.
Section 18 Equality Act 2010 states that a person discriminates against a woman if, in the protected period in relation to a pregnancy, he treats her unfavourably because of her pregnancy or because of illness suffered as a result of the pregnancy. Section 18 also covers unfavourable treatment of a pregnant employee based on any health and safety concerns of the employee for herself or her unborn child.
Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999/32/42 sets out a general duty on employers to safeguard the health and safety of their employees. By virtue of regulation 16(1) the employer must include in an assessment under Reg 3(1) an assessment of particular risks to new or expectant mothers and their babies where their work is of a kind which would involve risk to the health and safety of the expectant mother and/or baby from processes or working conditions, or physical, biological or chemical agents.
An employer’s failure to carry out a risk assessment can, in the case of pregnant worked, entitle her to bring a complaint of pregnancy and maternity discrimination under S18 of the Equality Act 2010.
The decision of the Employment Tribunal in Ms R Martin v Beauty Tonic 64 Beach Rd Limited and Mr May
The Employment Tribunal found that the respondent’s witnesses’ evidence was inconsistent as to the real reason for the claimant’s dismissal. They went on the hold that the reason for the claimant’s dismissal was her pregnancy and that her claim for automatic unfair dismissal under s99 of the Employment Rights Act was well founded. They also found that the claimant’s claim under s18 of the Equality Act 2010 was well founded.
Our solicitors’ comments on the case
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “This case demonstrates the importance of employers making sure they comply with employment legislation designed to protect pregnant employees and their unborn child, regardless of their size or resources”.
The decision of the Employment Tribunal in Ms Martin v Beauty Tonic 64 Beach Rd Limited and Mr May case number 2405471/18 can be found here.