Shift worker discriminated against when pub stopped offering her shifts because she was pregnant (Knowles v The Inn at Whitehall Limited)
In Knowles v The Inn at Whitehall Limited [ET/2410460/18] the Employment Tribunal considered the employment status of a casual worker and whether she had been discriminated against for a pregnancy related reason when a pub she worked for stopped offering her shifts after she suffered a bout of morning sickness.
The facts in Knowles v The Inn at Whitehall Limited
Holly Knowles (the ‘Claimant’) worked at a pub, the Inn at Whitehall (the ‘Respondent’) from January 2017. She was a university student and worked casual, part time hours which varied from week to week. In November, during a period of sickness when she was unable to work, she discovered she was pregnant and advised the person in charge of doing the rotas at the Respondent of that fact by way of a text.
Subsequent to advising the Respondent of her pregnancy, the Respondent stopped offering the Claimant shifts and failed to respond to her text asking for shifts once she felt better. Only after the Claimant raised a grievance in January 2018 did the Respondent again offer her work. The Respondent did respond to the Claimant’s grievance in writing, but did not offer her a meeting.
Then in March 2018 the Claimant rang HMRC and was advised by them that the Respondent had notified them that the Claimant had left employment with them in November 2017. This prompted the Claimant to resign. The Claimant made claims in the Employment tribunal for:
- Direct discrimination on the grounds of pregnancy (s18 Equality Act 2010)
- Victimisation (s27 Equality Act 2010)
- Failure to provide written particulars (s1 Employment Rights Act) 1996
- Failure to comply with the ACAS code of practice on grievances (s207A Trade Union and Labour Relation Act (Consolidation) 1992
Section 18 of the Equality Act 2010 sets out that pregnancy and maternity are protected characteristics and describes direct discrimination in relation to them as follows:
‘A woman will suffer unlawful discrimination if she is treated unfavourably during the protected period of her pregnancy because of the pregnancy or any illness resulting from the pregnancy.’
Under s27(1) of the Equality Act 2020 victimisation is defined as follows:
‘A person (A) victimises another period (B) if A subjects B to a detriment because:
- B does a protected act or
- A believes that B has done or may do a protected act’
There is no definite definition of employee, although it is expressed in the Employment Rights Act 1996 as ‘an individual who has entered into or works under a contract of employment’. Case law tells us there needs to be mutuality of obligation (e.g. an obligation to offer work and an obligation to take work), an obligation to provide personal service and sufficient control by the putative employer over the putative employee.
Section 1 of the Employment Rights Act 1996 states that ‘where an employee begins employment with an employer the employer shall give to the employee a written statement of particulars of employment….’
Finally, paragraph 33 of the ACAS Code of Practice says that ‘Employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received and s207A of the Trade Union and Labour Relations (Consolidation) Act 1992 states that an Employment Tribunal can increase any award it makes to an employee by no more than 25% where there has been a breach of the ACAS Code of Practice.
Decision of the Employment Tribunal
The Employment Tribunal held that the Respondent had withheld work from the Claimant because she was pregnant and suffering from a pregnancy related illness. They therefore upheld the Claimant’s claim for direct discrimination on the grounds of pregnancy. They found no evidence that the Respondent had been in contact with HMRC and as a result the Claimant’s claim of victimisation failed. They did however find that the mutuality of obligation between the parties was just sufficient to find an overarching contract of employment. As a result, they upheld the Claimant’s claim in respect of a written statement of particulars. Finally, the Employment Tribunal found that even though they had not held a grievance meeting, the Respondent had been willing to meet with the Claimant and so did not find that its conduct was unreasonable. As a result, this claim failed as well.
Our solicitors’ views on the case of Knowles v The Inn at Whitehall Limited
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comments on the case: “This case highlights the importance of employers understanding the legal status of those who they offer work to and the legal rights that flow from that status as well as the responsibilities on them as employers.”
The decision of the Employment Tribunal in [ET/2410460/18] can be found here.