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XHook vs A Perfect Glass Ltd

A Perfect Glass Ltd (PGL) Manager has requested the advice of the PGL Personnel Department to advise on their dealings with employee Hook.

History

Hook has been employed by PGL as a full time qualified glass designer for just under one year. Hook became pregnant six months ago and informed PGL. Hook has never been issued with a contract of employment or any written particulars and having approached PGL about the possibility of returning to work part time after the baby is born she was informed that PGL would not be able to take her back.

Contract

PGL’s Legal Position

PGL have failed to issue Hook with written particulars of employment and are therefore in breach of Section 1 (s1) of the Employment Rights Act (ERA) 1996 providing Hook with the opportunity to complain to an Employment Tribunal (ET) for failure to supply written particulars. S1 states that written particulars be issued in the first eight weeks of employment.

An ET would quickly conclude that Hook was indeed a full time employee by applying a control test as in the case of Yewens v Noakes (1880) whereby it would be clear that PGL controlled Hook’s activities in the workplace. The contract of employment is further implied by PGL’s salaried payments to Hook in which they deduct both Income Tax and National Insurance at source.

Conclusion

PGL have no defence against failing to issue written particulars of employment and an ET would take a dim view of them not having done so but the award that would be made payable to Hook from PGL is relatively small itself being between two to four weeks pay (up to a maximum of £1,320).

Recommendations

1. PGL Personnel Department immediately issues Hook written particulars of employment.
2. PGL Personnel Department conduct a thorough audit of all employees HR files and ensure that contracts of employment have been issued and a countersigned copy from the employee is retained on their HR files.

Maternity Rights

PGL’s Legal Position

Both domestic law (UK) and European (EU) Law categorise pregnant employees as a protected group which provides them with extra rights to ensure that they are treated fairly in the workplace, protected from detriment, discrimination and dismissal from the outset of pregnancy to the end of their Maternity Leave.

PGL have failed to action anything in relation to Hook’s pregnancy or communicate the five basic rights she is entitled to:

1. The right to Maternity Leave & Right to Return (Part VIII ERA 1996 71 (1), 78 (1), 79 (1) & (2))
2. The right to Maternity Pay
3. The right not to be dismissed / suffer detriment for reasons connected to pregnancy (Article 10 Pregnant Workers Directive 1992 (PWD), Regulation 10 of the Maternity, Parental Leave Regulations 1999 (MPLR) & s99 of the ERA 1996)
4. The right to paid Time off for Ante natal Care (Article 9 PWD 1992, s55 &s56 ERA 1996)
5. Health & Safety (Articles 1 & 4 PWD 1992)

Conclusion

In not communicating to Hook her rights PGL have also denied Hook of the right to return to work and the right not to be dismissed or suffer detriment breaching Part VIII of the ERA 1996 in addition to The Maternity & Parental Leave Regulations 2006 and The Pregnant Workers Directive 1992 all of which are indefensible in claims of Direct Sex Discrimination bought under the Sex Discrimination Act 1975 (SDA) which is an option open to Hook.

Recommendations

1. Personnel explain to Hook her Maternity rights and also gives Hook a pack containing the same information. Hook is told that she is eligible for both Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML). During the first 26 maternity leave (OML) Hook is entitled to and retains all her contractual benefits (with the exception of remuneration (Part VIII ERA 1996 71 (2)). If Hook returns after her OML she needs not provide PGL with any notice if however she wishes to return earlier she needs to provide PGL with eight weeks written notice.

2. If Hook wishes to take AML she can take a further 26 weeks leave and her contract continues but only basic elements of the contract are maintained (MPLR, Regulation 17).
Hook is told that if AML is taken PGL are not obliged to keep her position of Designer open till she returns but are obliged to offer her a suitable alternative where possible.

3. Personnel explain the provisions for Maternity pay. The statutory provisions of the ERA and MPLR set out the minimum rights and unless PGL offers more favourable rights i.e. higher maternity pay or longer leave than the statutory right prevails.
In terms of statutory entitlement Hook, on commencement of her maternity leave will receive six weeks at 90% of her pay followed by a further 33 weeks of Statutory Maternity Pay (SMP) currently £112.75 but rising to £117.18 from the 1st April 2008.

4. Hook’s right not to be dismissed and suffer detriment should be highlighted to Hook’s LM.

5. Personnel conduct a risk assessment for Hook to ensure she is safe and comfortable in the workplace.

6. Arrange training for both the SMs and all LMs to inform them of MPLR and best practice.

Dismissal

PGL’s Legal Position

Any dismissal connected with pregnancy is unlawful and automatically classed as unfair. Because pregnancy is a protected reason this means that the one year qualifying period does not apply.

Article 10 of the PWD s1 & s2 prohibit PGL from dismissing Hook and s2 states that in the case of pregnancy PGL must “cite duly substantiated grounds” for Hook’s dismissal in writing which again has not been done. Also covered by s92 (4) ERA.

Hook has the opportunity to claim Direct Sex Discrimination, Indirect Sex Discrimination, Unfair Dismissal, failure to follow Statutory Disciplinary and Grievance Procedures as contained in the 2004 Act in addition to Constructive Dismissal.

Hook’s case is strengthened by PGL’s failure to follow the Statutory Disciplinary & Grievance Procedures 2004 (DGP) which could see any award from an ET increased by a further 10 50% for failing to follow prescribed statutory procedures something which Hook could argue to be a consistent failing of her employment with PGL.

For a claim of unfair dismissal the following questions should always be considered:

1. Is the applicant entitled to claim?
2. Has the employee been dismissed?
3. Has PGL got a statutory fair reason for dismissal i.e. conduct, capability? Or is there an automatically unfair reason?
4. Has PGL acted reasonably?

Unfair Dismissal – Direct Sex Discrimination

A claim bought under Direct Sex Discrimination is indefensible, unlawful and contravenes s3 of the Sex Discrimination Act 1975 (SDA) as held in both Hertz v Aldi Marked K/S (1991) IRLR31 and Webb v EMO Air Cargo (UK) Ltd (No.2). A large award could be made to Hook as the awards have no guidelines set and are unlimited with a further sum payable as injury to feeling (maximum £25k following the guidelines in Chief Constable of West Yorkshire v Vento (2001)) and reinstatement is not an option.

Hook would need to make a comparison between how she has been treated and how a man would be treated or argue the “but for” test as in the case of James v Eastleigh Borough Council 1990 IRLR 288.

Whilst PGL couldn’t defend a direct discrimination claim by claiming that the less favourable treatment was justified it could attempt to defend the claim by showing that one of the elements needed for a successful claim was absent:

• Hook consented to the discrimination
• There is no male comparator
• The pregnancy or Maternity was not the Effective Cause of the Less Favourable Treatment
• PGL had no knowledge of the pregnancy
• Treatment resulted from Hook’s poor performance or conduct
• The claimants post is redundant

The Pregnancy or Maternity was not the Effective Cause of the Less Favourable Treatment

In the instance of a claim being bought against PGL this would be the most sensible defence. PGL would have to argue that the less favourable treatment was due to another reason and not Hook’s pregnancy. Hook’s claim would succeed if her pregnancy is the ‘real and effective’ cause of the less favourable treatment, even if it is not the only or main cause of the treatment as in O’Neill v Governors of St Thomas More RCVA Upper School and Others 1996 IRLR 372.

Unfair Dismissal – Indirect Sex Discrimination Part Time Working Request

Hook can also bring a claim for indirect discrimination as a result of PGL’s refusal to consider her application for part time hours.

Indirect sex discrimination is the provision, criterion or practice which when applied to both sexes puts one at a particular disadvantage as upheld in The Home Office v Holmes 1984 IRLR 299 and it would be argued that PGL are disadvantaging women by not considering part time working requests.

Unfair Dismissal – Breach of the Statutory Dismissal & Disciplinary Procedures (DDP)

PGL’s failure to comply with the DDP makes a dismissal automatically unfair and means that whatever Hook could be awarded in her claim for Sex Discrimination could receive an uplift of 10 50%.

PGL should have:

1. Written to Hook giving details of the circumstances which may result in her dismissal or disciplinary action being taken.
2. Ask Hook to a meeting to discuss the matter (explain that Hook has the right to be accompanied). After the meeting notify Hook of the decision and offer a right of appeal.
3. If Hook wants to appeal, hold a further meeting. Notify Hook of the final decision.

Unfair Dismissal – Constructively Dismissed

Hook might have a case for being constructively dismissed arguing that PGL have breached the mutual trust and confidence implied by the employment contract. Hook could argue that PGL have provided her with no support since announcing her pregnancy and have informed her that she will be dismissed and have no job to return to causing a detriment.

Claims of Unfair Dismissal are made up of a Basic Award (£9,900 max) and a Compensatory Award (£63,000 max) so not only would PGL have to incur the expenses of their internal resources responding to these claims, they would look at incurring expenses for legal advice and representation in addition to potential awards in favour of Hook.

Conclusion

PGL should be advised that if a claim(s) is bought or the dismissal continues an award could be vast as it would need to compensate Hook for her lost job and expected duration in finding a new one which will be difficult given Hook’s specialism.

Recommendations

1. Hook’s LM immediately retracts the dismissal.
2. The Personnel Department add DDP Training to the list of training already now scheduled.

If the Personnel Department are given the steer to not carry out the recommendations they have proposed but continue with Hook’s dismissal then the Personnel Department would need to update SMs when the three month window has passed in which Hook can make an application to claim.

Part Time Working Request

PGL’s Legal Position

PGL have also breached the Flexible Working Regulations 2006 (FWR) which entitles employees like Hook with 26 weeks continuous service the right to make a request for flexible working once a year if they have or care for a child under the age of 6.

The FWR procedure should have been applied to Hook’s request:

1. Employee makes a written request
2. Employer has a duty to consider request
3. A meeting must be held within 28 days
4. A Decision must be made within 14 days of meeting
5. Appeal must be within 14 days of the decision
6. Appeal meeting must be within 14 days of appeal request
7. Decision must be made within 14 days of appeal meeting

In breaching the FWR a claim could be bought against PGL by either:

Breach of Flexible Working Rights

An employee could complain to an ET of a breach flexible working as in Commotion Ltd v Rutty 2006 IRLR 171 and the ET could direct the Employer to reconsider and make an award of compensation maximum award £2,640.

Or more likely a claim for:

Indirect Sex Discrimination

As discussed in the Dismissal section Hook could argue that PGL’s decision to refuse flexible working placed a disproportionate and unfair disadvantage on women and awards again would be unlimited!

PGL have more scope to defend a claim for Indirect Discrimination (assuming no male comparator is currently working part time):

1. Burden of additional cost
2. Detrimental effect on meeting customer demand
3. Inability to reorganise work amongst existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality or performance
6. Insufficiency of work during periods employee proposes to work
7. Planned structural changes

Conclusion

Unfortunately PGL did not consider or follow the FWR instead dismissing Hook which could lead Hook to bring a claim for indirect sex discrimination as awards are unlimited.

Recommendations

1. LM and Personnel advise Hook that if she submits a written request for flexible working it will be given due consideration.
2. Add FWR to the training for SMs and LMs.
3. Establish if any other requests have been made within the business recently to try and head off any other potential claims.

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