What was the real reason that pregnant employee was dismissed?

Author: Euphemia Matheson.

Tribunal looked behind redundancy to see whether the employer was being genuine.

EVEN where the employer has a good reason to dismiss, women can still win Tribunal claims if their pregnancy has “played a part” in the decision.

The recent case of Yasin v Swift Lawyers has illustrated how the law operates, and resulted in an award against the law firm of almost £19,000 in compensation.

Ms Farzana Yasin, a paralegal, had taken maternity leave twice during her employment and was made redundant three months after she notified her employers of her third pregnancy.

The tribunal in Manchester found that there was a genuine redundancy, but that her dismissal because was unfair because the Respondents had discriminated against her. The Employment Judge said the redundancy process was a “box-ticking exercise” and that the company had not engaged in a meaningful consultation.

The tribunal was critical of the attempts the employer said they had made to find alternative employment for Ms Yasim, which is required in any redundancy situation involving a pregnant employee. They said no suitable role was available.

Ms Yasim successfully proved a number of facts which allowed the ET to find that she would have been treated differently had she not been pregnant.

“Particularly in circumstances where an employee has been absent from the business during furlough, they cannot be assumed to have the same knowledge as the employer about conditions ‘on the ground’ in the business,” the tribunal said.

“An open dialogue about the need for redundancies, as well as the basis for selection, when the proposals are at a formative stage, rather than when they are ‘a done deal’, is likely to prevent the sort of suspicions and misconceptions which have arisen in this case.”

The tribunal also found that the firm fell short in its attempts to find alternative employment in contrast to a personal injury colleague who was found other opportunities within the business when his work was drying up.

“More specifically, we reject the respondent’s evidence that there was no role available in the conveyancing department,” Judge Dunlop went on.

This case serves as a cautionary tale to any respondents engaging in redundancy processes involving pregnant employees.

The firm, based in Bolton, was “not interested in seeking ways to avoid the redundancy” and was “not open and transparent” with Ms Yasin about developments in the conveyancing department, telling her it did not need to recruit an assistant, only to do so soon after.

“We consider that those circumstances give rise to an inference that Ms Yasin would have been treated differently if she had not been pregnant…"

“Although pregnancy was not the immediate cause of Ms Yasin’s dismissal … her pregnancy played a part in the respondent’s decision to dismiss, albeit that it was not the sole or principal reason for the dismissal.”

At the remedy hearing, the tribunal order Swift Lawyers to pay Ms Yasin £15,000 plus interest for injury to feelings plus another £1,000 in loss of earnings. The firm was ordered to pay a total of £18,800.

Over the past 12 months, Livingstone Brown’s employment team has provided advice on pregnancy and maternity discrimination to a number of women in the Employment Tribunal, and these claims have been settled for substantial sums after successful negotiations on behalf of our clients with lawyers for an airline and a brewery chain.