Pregnant employee discriminated against and victimised after making complaint of discrimination (Jarvis v Davies and Davies Estate Agents Limited)
In the case of Jarvis v Davies and Davies Estate Agents Limited ET/3323814/2016 the Employment Tribunal held that the Claimant, Ms Jarvis, had been automatically unfairly dismissed and discriminated against by being dismissed because of her pregnancy.
The facts in Jarvis v Davies and Davies Estate Agents Limited
Ms Jarvis commenced employment with Davies and Davies Estate Agents Limited (“Davies”) on 9 November 2015 as a junior negotiator. Davies is an estate agent with thirteen full-time employees, ten of whom are female and three of whom who are male.
On 1 February 2016 Ms Jarvis passed her probationary period and was promoted to the position of sales negotiator by her line manager, Mr Stuart.
Although Ms Jarvis initially performed well (selling the requisite number of properties expected of her), during the course of her employment various concerns were raised regarding her performance, including:
- That on 23 March 2016 Ms Jarvis had inappropriately criticized Mr Reach, the sales manager, by describing marketing strategies he had been advocating as “a waste of time” (Ms Jarvis subsequently apologies for this)
- That she was given an informal warning on 6 April 2016 on allegations that she had bullied Ms Begum, another member of staff
- That she had on one occasion allegedly dressed inappropriately in the office by wearing a short-sleeve dress
On 7 April 2016 Ms Jarvis informed the company that she was pregnant.
On 13 April 2016 Mr Scales sent an email to Mr Davies (director of the business) confirming that he had disciplined Ms Jarvis on allegations of bullying. However, Mr Scales exaggerated the extent and seriousness of Ms Jarvis’ conduct in this email.
On 14 April 2016, Ms Davies (a non-executive director of the business), happened to use Ms Jarvis’ computer whilst she was away from the office on sickness absence (caring for her mother, having informed the business that her mother was ill in hospital with terminal cervical cancer, and that she was currently in a coma). Ms Davies mistakenly opened Ms Jarvis’ personal email account while using the computer and saw that Ms Jarvis’ mother had emailed her – this caused Ms Davies to be suspicious, and Ms Jarvis had previously informed the business that her mother was in a coma. Ms Davies became suspicious that Ms Jarvis might be lying about her pregnancy and proceeded to open a number of Ms Jarvis’ other personal emails.
On attending work the next day Ms Jarvis discovered that someone had accessed her personal email account and had read her personal emails (including emails dating back to 2014 regarding her wedding and that she had suffered a miscarriage). She note that the use of her computer had occurred between 8pm and 9pm the night before, and she became emotional, stressed and tearful. She came to the conclusion that it was only Ms Davies or Mr Scales who could have accessed her account, as she knew that they were the only employees in the office after 7pm the day before. She concluded that Ms Davies had read her emails but could not be sure.
The same day Ms Jarvis approached Mr Reach, marketing manager, and informed him that she believed that she had been treated differently by Mr Scales, Ms Davies, and Mr Rudolf (another manager) in comparison to her non-pregnant colleagues and gave examples of such incidents. She provided details of documents that had been accessed on her computer. Mr Reach contacted Mr Davies, explained what had happened and asked what he should do – Mr Davies said that Mr Reach should meet with Ms Jarvis immediately, ask her to go home while her claims of bullying were investigated, and take notes.
At 11am on the same day Mr Reach met with Ms Jarvis and explained that she would be suspended on full pay while he conducted the investigation into allegations of bullying. Ms Jarvis was upset and said that she would take legal advice. After being addressed on the matter by Mr Davies Mr Reach apologies to Ms Jarvis for using the term ‘suspension’. He stated that Mr Davies would meet with Ms Jarvis on 18 April 2016 to discuss her grievance.
On the same day Mr Davies canvassed the managers at the business to see whether they had any concerns regarding Ms Jarvis’ performance.
On 18 April 2016 Mr Davies met with Ms Jarvis, with Ms Davies acting as a notetaker. During the meeting it was put to Ms Jarvis that she had been given a formal warning previously for bullying and that she had not met targets; Ms Jarvis replied that she had met her targets and that she had not been given a warning. Mr Davies also questioned Ms Jarvis on her personal email account. Ms Jarvis stated that she was not willing to comment on this, apart from to confirm that her mother was in a coma. Ms Jarvis was concerned that the meeting was more akin to a disciplinary hearing than a hearing to consider her grievance.
On 19 April 2016 Mr Reach emailed Ms Jarvis to confirm that she should attend work on 20 April 2016, and that Mr Davies would meet with her on that day. Ms Jarvis replied the same day, stating that she was taking legal advice and that she did not wish to return to work until she had received such. Mr Reach replied to state that she must attend work, and the next day Ms Jarvis emailed him to state that she was unwell. She therefore did not attend work.
Without a further meeting to Ms Jarvis to discuss her absence Mr Davies sent her a letter on 20 April 2016 confirming that she was being dismissed on allegations of misconduct, including (among other things) allegations of bullying and that she had taken an unauthorized leave of absence on 19 April 2016.
Ms Jarvis subsequently brought Employment Tribunal claims for unfair dismissal, automatic unfair dismissal, victimisation, and pregnancy and maternity discrimination.
The decision of the Employment Tribunal in Jarvis v Davies and Davies Estate Agents Limited
The Employment Tribunal upheld Ms Jarvis’s claims for automatic unfair dismissal, victimisation, and pregnancy and maternity discrimination.
Automatic unfair dismissal (section 99 Employment Rights Act 1996)
The Tribunal held that no concerns had been raised that Ms Jarvis had been underperforming until after she had informed the business that she was pregnant. The Tribunal further held that Ms Jarvis was too ill to attend work on 20 April 2016, that Mr Davies knew that she was consulting solicitors regarding her treatment on the grounds of her pregnancy, yet he still proceeded to dismiss her without a disciplinary hearing.
The Tribunal came to the conclusion that the reason or principal reason was related to her pregnancy – the Tribunal did not accept that she was dismissed because of her performance as this was not an issue for either Mr Scales or Mr Reach.
Pregnancy and maternity discrimination (section 18 Equality Act 2010)
The Tribunal held that two allegations of pregnancy and maternity discrimination would be upheld:
- That Ms Davies had accessed Ms Jarvis’ personal email account, breaching Ms Jarvis’ privacy – the Tribunal found that there must have been an ulterior motive behind Ms Davies spending 90 minutes accessing Ms Jarvis’ computer; and
- That Ms Davies had taken screenshots of Ms Jarvis’ computer with regards to Ms Jarvis’ pregnancy and miscarriage – the Tribunal found that this was a gross breach of privacy and related to her pregnancy
Victimisation (section 27 Equality Act 2010)
The Tribunal held that Ms Jarvis’ protected act (her complaint that she felt that she was being discriminated against) significantly influenced Mr Davies’ approach to Ms Jarvis (that he avoid her grievance and discipline her). The Tribunal therefore upheld her victimisation claim.
Our solicitors’ view on Jarvis v Davies and Davies Estate Agents Limited
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “It is extremely important for businesses to undertake fair and impartial disciplinary and grievance procedures, particularly if an employee has raised a grievance that they are being discriminated against. If businesses fail to undertake fair and impartial grievance and disciplinary processes then they could face discrimination and victimisation claims (as the relevant business did here).”
The judgment of the Employment Tribunal can be found here