In Ms R Martin v Beauty Tonic 64 Beach Rd Limited and Mr Gregory William May, the Employment Tribunal held that an employee had been automatically unfairly dismissed. This came after she was dismissed for being pregnant. The Tribunal also found that she’d been discriminated against when her employer failed to conduct a pregnancy risk assessment.

Read on as we examine what happened and discuss the Tribunal’s judgment. We outline the law before providing comments from a member of our team.

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The Facts in Ms R Martin v Beauty Tonic 64 Beach Rd Limited and Mr May

Dismissed for Being Pregnant: Case Background

The Claimant, Ms Martin, worked for the First Respondent, Beauty Tonic 64 Beach Rd Limited, as a beauty therapist from January 2017.  Mr May, the Second Respondent, was the Managing Director of the First Respondent.

In August 2017 the Claimant informed Mr May that she was pregnant. The following month, she then asked him for time off to attend an antenatal appointment.  The Claimant was advised to book the day off as a holiday, or she would not be paid.  She went on to use annual leave for all of her antenatal appointments.  Later 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. Here, she noticed that the Claimant’s public entries showed that she had gone shopping with her partner that evening.  Mrs Moreton Derain didn’t discuss the Facebook post with the Claimant.

On 21 November, the Claimant then asked for the day off to visit the hospital for blood tests and because she felt tired.  Mrs Moreton-Derain again checked the Claimant’s Facebook page and noticed she’d posted about her intention to visit a friend.  This time Mrs Moreton-Derain asked the Claimant about her post and was told she hadn’t gone to visit her friend.

Around the same time, Mrs Moreton-Derain asked the Claimant on numerous occasions whether she intended to leave her job because of her pregnancy. Unfortunately, Mrs Moreton-Derain’s repeated questions about her future intentions upset the Claimant.

Issues Surrounding Risk Assessment

On 28 November 2017 Mr Campbell, a friend of the Claimant’s with HR experience, sent an email to Mrs Moreton-Derain. She requested, 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. However, 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 chemicals, as she was required to do.  She went on to prepare a handwritten note stating the assessment had taken place and asking the Claimant to sign it, which she refused to do.

Claimant Dismissed for Being Pregnant

On 30 November, for the first time, Mr May complained about the Claimant’s personal use of the work mobile phone.  On 2^nd 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 12.15 pm on 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.

The law

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 workers, entitle those affected to bring a complaint of pregnancy and maternity discrimination under S18 of the Equality Act 2010.

The Decision of the Employment Tribunal

The Employment Tribunal found that the Respondent’s witnesses’ evidence was inconsistent as to the real reason for the Claimant’s dismissal.  They held that the Claimant was dismissed for being pregnant and her claim for automatic unfair dismissal was well founded.  They also found that the Claimant’s claim under s18 of the Equality Act 2010 was well founded.

Dismissed for Being Pregnant: Our Solicitors’ Comments

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment. She said, “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 ET’s decision in Ms Martin v Beauty Tonic 64 Beach Rd Limited and Mr May can be found here.

Get Help with Redmans

If you believe you’ve been dismissed for being pregnant, contact us now. Redmans Solicitors are specialists in the employment sector. Following a brief chat, we can assess your case, answer your queries and provide expert advice.

To learn more about how we could help you, please:

• Call 020 3397 3603
• Complete our online form to request a callback