Pregnant employee’s dismissal not discrimination as dismissing officers were unaware of pregnancy (Agbaje v Santander UK Plc – ET/3325931/2017)
In Agbaje v Santander UK Plc (ET/3325931/2017) an employee’s claims for discrimination and dismissal for a pregnancy-related reason were not upheld when the Employment Tribunal found that the dismissing and appeal officers were unaware of the Claimant’s pregnancy.
The factual background in Agbaje v Santander UK Plc
Mrs Agbaje (the ‘Claimant’) was employed by Santander UK Plc (the ‘Respondent’) from 21 April 2008 to 31 March 2017 when she was dismissed for gross misconduct. The Claimant was a Customer Support Advisor.
On 15 February 2014 the Claimant had an altercation with a work colleague, a Ms Grant. Ms Grant submitted a grievance about the Claimant and the incident. The Claimant messaged Ms Daley, her branch manager, to say she was stressed and wanted to speak to her about something, but the conversation never happened.
The Claimant was undergoing IVF treatment in March 2014. She advised Ms Daley, the Branch Director, on 3 March 2014 that she had an appointment at Guys Hospital which she attended. On 6 March 2014 the Claimant raised a grievance against Ms Grace. In the grievance the Claimant complained about Ms Grace describing her clothes as ‘stinking’. She also catalogued a series of incidents between 2013 and 2014 when Ms Grace had told other members of staff to move their belongings away from the Claimant’s because of the smell and had reacted to the Claimant’s presence in the kitchen by spraying perfume all around the room. On receipt of the grievance Ms Daley did not act for a number of months stating that as the as the incident had proceeded her appointment it was not up to her to investigate it.
On March 7 the Claimant was working normally. She was asked to attend another branch, but not told why. At that branch she was advised that there was to be an investigation into the incident on 15 February. The Claimant had been unaware that a grievance against her had been raised and had not been given the opportunity to talk to Ms Grace about it herself. After the meeting she went for her lunch break and started to feel uncomfortable with stomach pains. She used the lavatory and noticed she was having light vaginal bleeding. She returned to work and to her till. Her abdominal pain worsened, and she said she could not continue to work, but Ms Daley insisted she balance her till. The Claimant refused to do so. The Claimant and Ms Daley spent some time arguing over who would balance the Claimant’s till (standard practice for security reasons was for a cashier to balance their own till, but it was possible for two other members of staff to carry out that function).
The Claimant left her till and went to the staff area. She became uncommunicative and was in considerable pain and discomfort. She did not tell Ms Daley that she was pregnant or miscarrying. She went to the toilet and noticed more vaginal bleeding. She was crying as she left the toilet and went to ask Ms Daley if she could go home. She then collapsed in the corridor and lost consciousness. The police then arrived, and she was taken away in an ambulance. Hospital notes confirmed a miscarriage.
The Respondent’s witnesses said that the Claimant did not appear to be in pain but was ‘hysterically screaming’. Concerned about the Claimant they called Human Resources. Ms Daley decided to close the branch as the Claimant was ‘screaming, shouting and thrashing against the wall, kicking out her legs, wailing and flailing her arms’. Human Resources contacted the Head of Health, Safety and Wellbeing who concluded that the Claimant has ‘an extreme mental health breakdown’.
The next day, the Claimant was advised to stay away from work. The Claimant subsequently provided a fit note which refers to a ‘miscarriage’. The Clamant remained off work and went back on 15 October when she was suspended from work. On 20 October 2014 she was sent a letter by the Respondent advising her that they were investigating a disciplinary allegation that she had been ‘verbally abusive to other members of staff’. No other details were given other than to advise her that her employment could be terminated with notice.
An investigation meeting was scheduled for 20 November. In the invitation to the meeting the investigating office said he was investigating the Claimant’s grievance as well as the allegations was ‘linked’. The meeting did not take place as the Claimant was unwell. A new investigating officer was appointed. Mr Aye-Kumi directly reported to Ms Daley and was appointed by her. On 17 March 2016 the investigation meeting went ahead and at that meeting the Claimant advised the investigating officer that her behaviour had been due to her thinking she was miscarrying. The investigating officer failed to interview any of the key witnesses to the incident, instead relying on their written statements.
The Claimant’s grievance was upheld, and mediation was recommended between her, Ms Grace add Ms Daley.
The decision was made that the Claimant should face a disciplinary hearing, and this took place on 22 March. At the disciplinary hearing the allegations were confirmed as including (i) a failure by the Claimant to balance her till (ii) a wholly inappropriate and serious outburst in the branch (iii) acting aggressively in front of staff and customers and (iv) screaming, shouting and kicking furniture and walls.
The disciplining officer was not provided with the fit notes confirming that the Claimant had suffered a miscarriage. Nor did he have before him the ambulance report which confirmed vaginal bleeding. On 7 March the disciplining officer concluded that the Claimant’s behaviour ‘was both verbally abusive and aggressive and wholly unacceptable and constituted gross misconduct’. The Claimant appealed the finding of gross misconduct and the appeal hearing took place on 22 May 2017. The outcome of the appeal was sent on 6 June 2017. The decision to dismiss the Claimant for gross misconduct was upheld. There was no acceptance that the Claimant’s behaviour was mitigated by the fact that she thought she was having a miscarriage and the Claimant’s actions on the day in question were criticised as ‘wholly unacceptable and regardless of whether you considered you needed medial attention, this could have been handled in a professional manner which would have avoided this incident’.
The Claimant brought claims in the Employment Tribunal (‘ET’) for unfair dismissal, discrimination relying on the protected characteristic of pregnancy and maternity and automatic unfair dismissal on the ground that the reason or principal reason for dismissal was pregnancy, maternity or childbirth.
The decision of the Employment Tribunal
The ET found that on the day in question, the Claimant was not in control of what she was doing. However, they were satisfied that throughout the period, none of the key witnesses for the Respondent were aware of the fact that the Claimant was pregnant. It therefore could not be said that any of the actions which Ms Daley took on that day, about which the Claimant complained, were because of her pregnancy. They also found the individuals who conducted the disciplinary hearing and appeal hearing were also not aware of the Claimant’s pregnancy when they came to their decision and therefore it could not say that the Claimant suffered a detriment or dismissal because of her pregnancy or the miscarriage itself.
The Claimant’s complaints that she was the victim of discrimination on the protected characteristic of pregnancy or maternity and that she was automatically unfairly dismissed were therefore not upheld.
With regards to the investigation and disciplinary process the Respondent followed in dealing with the allegations against the Claimant, the ET were heavily critical. The flaws included (i) relying on a Management Report made by Ms Daley, the main witness to the incident, which played no part in the Respondent’s formal disciplinary process (ii) the appointment by Ms Daley of an investigating officer whose work role was subordinate to her (iv) the failure of the investigating officer to understand his role and take witness statement (vi) substantial delay between the incident and its investigation. They also criticised the fact that the disciplinary hearing went ahead in the Claimant’s absence as she was ill and that their conclusions were unreasonable, particularly their failure to take into account the Claimant’s substantial points of mitigation.
The Claimant’s unfair dismissal claim was successful.
Our solicitors’ views on the case of Agbaje v Santander UK Plc
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “The treatment of the Claimant in this case from the date of the incident until the date of dismissal was far below the standards to be expected by any reasonable employer. However, despite all of the mistakes they made throughout the process, decisions that were made were made in the absence of any knowledge about the Claimant’s pregnancy and therefore could not be said to be discriminatory.”
The decision of the Employment Tribunal in Mrs Agbaje v Santander UK Plc (ET/3325931/2017) can be found here.