In Ms K Flanagan v A Jury (t/a Envy), a hairdresser has recently been awarded £90,000 after she was constructively dismissed, discriminated against for being pregnant and victimised after she filed a grievance complaining of the treatment.
Pregnancy Discrimination
The Claimant was issued with a final written warning five days after announcing her pregnancy, allegedly because of customer complaints. However, the Respondent had not taken action about complaints received before the Claimant announced her pregnancy. This Tribunal decided that this change in attitude was because Ms Flanagan was pregnant. There was no real explanation given as to why such concerns were being raised now and also why a final written warning was issued instead of implementing the company’s performance management process, as per the company’s handbook.
The Respondent also denied the Claimant the opportunity to improve her performance as she was removed from the online booking system and her ‘regulars’ were reassigned to other stylists. This effectively demoted her because she could only take ‘walk-in’ customers, causing her to spend the majority of her time on apprentice-level tasks. This amounted to pregnancy discrimination, motivated by the knowledge that the Claimant will be going on maternity leave.
Victimisation
Ms Flanagan submitted a grievance and the next day, the Respondent cancelled a training course that had been booked before her pregnancy. Although the Respondent claimed that this was due to financial concerns, this was not upheld and was unfavourable treatment because of the Claimant’s pregnancy. It also was victimisation as it was held to be a detriment inflicted on Ms Flanagan because she had submitted a grievance.
Constructive Dismissal
The relationship continued to deteriorate, with a colleague shouting profanities at the Claimant including calling her newborn child a “scabby baby”. It was found that she was forced to resign after these series of events and so the Tribunal upheld Ms Flanagan’s claim for constructive dismissal.
However, the Tribunal found that whilst the Respondent’s sister had also behaved in a similar way, it did not find that this breached the implied term of trust and confidence because it was not shown that the comments were made with the knowledge or approval of the Respondent, who therefore can’t be held to be liable for them. The Respondent had also not induced her sister to make these comments, as they were made of her own volition.
Takeaways:
- A fair and consistent approach should be taken in respect of disciplinary procedures, with clear records kept of the reasons why actions are taken.
- Staff should be informed of poor performance promptly and using impartial language, then should be given the opportunity to improve their performance within a reasonable timeframe.
- Employers may be at risk if it is found that they instructed, caused or induced or encouraged external third parties, including friends and family, to harass an employee. Additionally, employers may be liable for these actions if they have knowledge of the intention and don’t prevent it from happening.
- Grievance should be dealt with fairly and impartially, and treatment of an employee must not change for the worse after one is submitted.
