What happened?
Mrs Kayahan Kolan was employed by Marks and Spencer in October 2023. It had been agreed that she would not have to lift anything heavier than 5kg because of a problem she had earlier mentioned with her back.
After some initial induction and baking training at Brent Cross and Uxbridge, she transferred to the Watford branch. There, she started at Watford, she encountered problems as she was required to lift heavy boxes.
She messaged her manager, referring to back and groin pain, saying, “Please can I get information from you about what we can do about the situation and how can improvements be made”.
Her manager responded on the same day: “…this was an unprecedented situation…. Come in on Sunday as your shift dictates and things should be better organised.”
They had a conversation and Mrs Kayahan Kolan began explaining her situation and disclosed her pregnancy, expecting that her manager would discuss possible adjustments.
She said “The moment I mentioned my pregnancy, [her] expression shifted. Her face dropped and she immediately dismissed me, stating, ‘I’m sorry, we don’t have any suitable jobs for you’. She then added ‘I can’t move you anywhere else because your English isn’t enough.’ I broke down and [she] patted my shoulder twice before it became apparent that she wanted me to leave. She did not ask a single question about my pregnancy, my health, or whether I needed support. She made no effort to discuss alternative roles, reasonable adjustments. The fact that I was dismissed immediately following the disclosure of my pregnancy and the fact that [she] said that because of my pregnancy she didn’t have any roles for me spoke to my worst fears that disclosing my pregnancy would lead to my dismissal”.
She waited outside the meeting room for about half an hour, then knocked on her manager’s door and asked what she could do and that she needed documents in relation to her dismissal. Her manager said “you can leave your [swipe] card and go” and said nothing further.
Mrs Kayahan Kolan did as she’d been asked, but not because she was resigning – she did it because she had been told to.
“At that moment it became clear to me that I had been dismissed.”
She confirmed in her witness statement that she was not given a formal termination letter, or notice period, or any right to appeal. “I was being sent away without a single piece of paperwork or a proper explanation.”
The tribunal unanimously accepted that Mrs Kayahan Kolan did not voluntarily resign and had been dismissed from her employment by Marks and Spencer.
In their context, the words that “we have no jobs available for you” clearly indicated a dismissal. Any doubt was resolved by the instruction by [her manager] that she should hand over her swipe card and locker keys. In short, by word and deed, the respondent unambiguously communicated to Mrs Kayahan Kolan her dismissal.
The unanimous decision of the tribunal was as follows:
- Under Section 99 of the Employment Rights Act 1996 (ERA), Marks and Spencer automatically unfairly dismissed Mrs Kayahan Kolan, the reason, or principal reason for the dismissal being her pregnancy;
- Under Section 18 of the Equality Act 2010, Marks and Spencer discriminated against Mrs Kayahan Kolan by dismissing her because of her pregnancy
Although the remedy hearing, where the amount of compensation to be awarded is considered, has yet to take place, it’s likely that this case will prove expensive for Marks and Spencer. Evident throughout the judgment is the lack of observance by the employer of the key steps for both dismissal and the relevance of pregnancy as a protected characteristic and what should be done to take that into account.
So what should employers do?
By law, an employer must not discriminate against an employee, or someone they’re thinking about employing because of:
- pregnancy;
- time off taken due to pregnancy-related illness;
- reasons related to maternity pay, maternity leave or leave planned to be taken.
Pregnant employees are protected by the law from discrimination during the ‘protected period’ which begins when someone becomes pregnant and ends when:
- when maternity leave ends, or
- when they return to work (i.e., if they take annual leave before returning), or
- if they leave their job.
The protected period ends 2 weeks after the pregnancy ends if the employee is not entitled to maternity leave, or the pregnancy ends during the first 24-weeks (for example, if they have a miscarriage).
Employees also have protection under the Equality Act if they’re receiving IVF treatment and have reached the embryo transfer stage. In this situation, they’re protected against pregnancy and maternity discrimination until:
- the end of their maternity period if the treatment is successful, or
- 2 weeks after the end of the pregnancy if the treatment is not successful.
Pregnant employees also have enhanced protection in redundancy situations which lasts for 18-months after the baby is born. They must be offered a suitable alternative role if there is one available.
Prevent discrimination
An employer must take all reasonable steps to prevent discrimination against employees because they are pregnant or on maternity leave. They should:
- Have a pregnancy and maternity policy
- ensure all policies, procedures and practices are fair and consider those who are pregnant or on maternity leave;
- have an equal opportunities and equality and diversity policy;
- provide regular training on equality, diversity and anti-discrimination;
- quickly address any discriminatory behaviour they become aware of;
- as an employer, understand your responsibilities and ensure that managers understand their responsibilities.
How can we help?
The tribunal judgment highlights a number of shortcomings with the employer’s process for dealing with pregnancy discrimination. It’s something that most, if not all, employers will face at some point and so it’s important that they are prepared for it with robust policies and procedures that are fit for purpose and verified by legal professionals. Why not contact our Employment team and see if it’s time for your policies to get a spring clean ready for use?