Case law | Pregnant employee unfairly dismissed for morning sickness receives £93k

Pregnant employee unfairly dismissed for morning sickness receives £93k

In this case, the Employment Tribunal (ET) determined that the dismissal of a pregnant employee experiencing morning sickness was both discriminatory and automatically unfair. 

The case also explored the principles the ET should apply when interpreting ambiguous dismissal messages, particularly when they are sent via text.

The law

Under Section 18 of the Equality Act 2010 (EqA), discrimination occurs when an individual is treated unfavourably during the “protected period” of pregnancy, either due to the pregnancy itself or any illness resulting from it.

The protected period begins when the pregnancy starts and ends as follows:

• If the individual is entitled to ordinary and additional maternity leave, the protected period ends at the end of the additional maternity leave or when they return to work, whichever is earlier.
• If there is no entitlement to maternity leave, the protected period ends two weeks after the pregnancy ends (Section 18(6) EqA).

The facts

The claimant, employed by the respondent as a property consultant, became pregnant and experienced severe sickness, a condition known as Hyperemesis gravidarum. 

On one occasion, the claimant needed to leave work early due to their pregnancy-related illness and informed Mr. Kabir from the respondent’s company by text message. 

The claimant was permitted to work from home, as agreed via text. The claimant’s midwife advised them to continue working from home for the following two weeks. 

On the same day the Company were notified about the advice that was given by the Claimant’s nurse, Mr. Kabir texted the claimant to inquire whether they could work from the office on certain days the following week. 

The claimant responded, explaining they would not be able to work either from home or the office due to their pregnancy related condition.

A few days later, Mr. Kabir sent another text, stating: “Will need to try and find someone to be in the office as we’re falling behind on work. I just want to say I hope you don’t take it personally or see us as bad, but we are really struggling.” 

The message concluded with a “jazz hands” emoji. Following this message, the claimant received no further payments from the respondent.

The decision

In its judgment, the Employment Tribunal (ET) found that the deliberately vague text message was written in an attempt to soften the bad news being delivered to the claimant. 

The message was objectively clear in its intention to end the employment relationship between the claimant and the respondent company.

The ET referred to the principles established in the recent case of Omar v Epping Forest District Citizens Advice, which guide the interpretation of ambiguous language to determine if it constitutes a dismissal, and if so, whether it is with or without notice. 

A key factor in this determination is whether the words used would be understood by a reasonable bystander, in the position of the recipient, as words of immediate dismissal. Merely expressing an intention to dismiss is not enough; the dismissal must be “seriously meant.” The ET emphasised that words of dismissal should be considered objectively in light of all surrounding circumstances.

The Tribunal concluded that the text message was “seriously meant” to dismiss the claimant and upheld the claim for automatic unfair dismissal. 

The claimant’s dismissal became effective when they read the text message, which marked the date of termination. The dismissal was also deemed discriminatory, as it involved unfavourable treatment due to the illness caused by the claimant’s pregnancy.

The claimant was awarded compensation for several breaches, including the failure to provide a statement of terms and conditions of employment, failure to provide written reasons for dismissal, and failure to provide itemised pay statements. 

The compensation for discrimination included £20,000 for injury to feelings, £5,000 for aggravated damages, a 25% ACAS uplift, along with past and future losses, interest, and grossing up, resulting in a total award of £93,616.74.

The takeaways

This case serves as an important reminder for employers about the principles the ET will apply when interpreting ambiguous dismissal language. 

Employers should ensure that all communications with employees, whether oral or written, are clear and unambiguous. This includes considering the “reasonable bystander” test, which will be used by an Employment Tribunal if there is a dispute over the language used.

The case also highlights the protections afforded to pregnant employees and the risks employers face if they fail to uphold these protections. In this instance, the claimant received additional compensation due to the employer’s failure to provide a statement of terms and conditions of employment, pay statements, or written reasons for dismissal.