In this week’s alert, we look at a case where a false redundancy scenario concocted during the pandemic led to a discrimination claim being brought in the Employment Tribunal, says Tom Scaife of Baines Wilson LLP.
Black v Pat Drain Barbers
Miss Black worked as a hairdresser for Pat Drain Barbers, which was managed by Ms Drain, from 23 October 2019. Miss Black announced her first pregnancy in 2020; however, this news was not welcomed by Ms Drain, as she attempted to dismiss her immediately following this announcement. Ms Drain subsequently decided not to follow through with this proposal, after Miss Black reminded her of her employment rights.
It’s understood that business began to decline in February 2020 for Pat Drain Barbers, which was then further impacted by the pandemic, leading to the temporary closure of the Barbers from March 2020 when the first lockdown was introduced. During the first few months of the pandemic, Miss Black was furloughed until she commenced her maternity leave in July 2020.
Shortly before Miss Black was due to return from maternity leave in April 2021, she discovered that she was pregnant with her second child. This news was not taken well by Ms Drain, as she informed Miss Black on her first day back at work following her maternity leave that she was being ‘paid off’, despite having previously agreed with her in March 2021 that she could return to work on reduced hours to enable her to have time to spend with her new baby.
Miss Black enquired as to the situation with the other employees at Pat Drain Barbers and was informed by Ms Drain that she was the only employee whose employment would be terminating.
Miss Black claimed that the unexpected termination of her employment following her return from maternity leave exacerbated her epilepsy and led to her requiring an increased dose of her mediation to manage this condition. Miss Black was also left feeling anxious as to how she was going to support her children as a single mother, as she was also dealing with the separation from her partner, and it is understood that Miss Black has not worked since her employment terminated on 12 May 2021.
Miss Black subsequently brought claims to the tribunal for discrimination on the grounds of pregnancy following the termination of her employment.
Decision
During the tribunal hearing, Pat Drain Barber’s attempted to argue that there was a ‘genuine redundancy situation’ and that Miss Black had been selected for redundancy due to business reasons; however, they were unable to prove on the balance of probabilities that Miss Black’s dismissal was not on the grounds of her pregnancy.
Miss Black was successful in her claim for discrimination on the grounds of pregnancy and was awarded £7,500.
Comment
This case is acts as a reminder that employers who are experiencing difficult financial times need to ensure that they do not make abrupt cost cutting decisions and that a full and fair process is undertaken where redundancies cannot be avoided. In a redundancy context employers should pool and score employees undertaking the same roles, or similar roles where the relevant employees could easily transfer between them. This avoids allegations that someone has been singled out due to a protected characteristic.
Employers must ensure that when considering the selection pool and criteria, they discount attendance records for example, where an individual has been off work due to pregnancy related illness, maternity, or other family leave. Needless to say, employees definitely shouldn’t be selected for redundancy because of pregnancy or maternity leave.
If you have any questions in relation to discrimination, redundancy, or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.
