A nursery employee who was dismissed at the height of the pandemic was discriminated against because she was pregnant, an employment tribunal has found.
Ms Topping was made redundant from Stepping Stones Nursery in Hoddlesdon, Lancashire, shortly after announcing her pregnancy. No other employees lost their jobs at the time.
Topping started working at the nursery in February 2020 and a few weeks later told her line manager, Ms Costello, that she was pregnant.
Topping’s evidence to the Manchester employment tribunal suggested that the owner of the nursery, Ms Mercer, was disappointed by the news. Costello allegedly said that Mercer would “come round to it” and other comments were allegedly made about whether Topping would keep the baby and about the baby’s father.
As the pandemic worsened in March 2020, Topping began to question whether she, as a pregnant woman, should be self-isolating. It was decided that she should take sick leave and would be paid Statutory Sick Pay.
She was called back to the workplace on 24 March to a meeting where the company announced it would have to reduce staff hours because fewer children were coming to the nursery. Topping was told that the company could not guarantee anything beyond 20 working hours per week and although she was already off work, she was asked to sign a contract that would reduce her hours from 37 hours to 20 hours per week.
She was also incorrectly told that she might have to pay back any wages paid to her via the furlough scheme.
“The claimant was presented with Hobson’s Choice, between signing the document or quite possibly having no job,” the tribunal’s judgment says.
“This was in the context of comments from the respondent’s managers about whether the claimant should, or wanted to, keep the baby and other negative inferences which were made.
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“The claimant was clearly reluctant to sign, and the tribunal considered that the she did not freely give her consent to the reduction in hours. She was given a letter which was not a standard letter, which had been drafted in haste and not even set out on the respondent’s headed paper as other letters were.
“The claimant was the only employee to have her hours formally cut and to get a letter like that, or any letter at the time, and to be asked to sign it there and then. In those circumstances, the tribunal considered that the claimant’s pregnancy operated in the minds of the respondent when it decided how to deal with her because the claimant was dealt with differently to all other employees. The only difference was that the claimant was pregnant.”
On 30 March Topping was placed on the furlough scheme and paid at 80% of 20 hours per week, despite the furlough reference date being 19 March 2020 when she had been contracted for 37 hours.
Toppings colleagues, who were also furloughed, were paid at 80% of 37 hours per week and suffered no reduction in hours or pay.
The nursery told the tribunal that it initially did not understand how the furlough scheme worked. However, the tribunal found that it did not subsequently try to rectify the mistakes it had made.
On 20 April 2020 Topping was told she would be made redundant. No mention was made of any selection process or redundancy criteria having being met.
When she had not received the redundancy letter by 24 April, Topping called Costello. Costello said that an “HR provider” had advised her to speak to Topping to explain the reasons for redundancy, and said that other colleagues had “out-competed” her in a selection process. Costello suggested that the selection process had been carried out on 19 April, but the tribunal’s analysis of the metadata for the selection document found it was in fact written on 24 April.
The claimant commenced an early conciliation process with Stepping Stones Nursey via Acas at the end of April 2020. After this point, the employer got other staff to sign backdated letters agreeing to reduce their hours from the conversations it had with them in March 2020.
Topping told the employment tribunal that there had been no genuine redundancy situation; that no fair procedures had been followed; that she had been singled out; and that, as a pregnant woman, she should have been treated as vulnerable to Covid-19 and suspended on maternity grounds rather than pressured to agree to a reduction in hours and pay.
“The tribunal noted that the claimant was dismissed whilst on furlough. Such action goes against UK government advice during the pandemic and, as has been found, there was no evidence of any saving for the respondent from a dismissal at the time,” the judgment says.
It found that terminating her contract and changing her working hours were “pregnancy-related detriment”.
“They were acts of unfavourable treatment and because of the claimant’s pregnancy. The respondent has not shown any other reason for them, and the tribunal drew inferences from the respondent’s failure to bring evidence of its reasons for such conduct to the effect that the respondent was either unable or unwilling to explain its actions,” the judgment says.
Compensation for unfair dismissal and pregnancy-related discrimination will be decided at a later hearing.
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