Background:

The claimant was employed by the respondent as a beauty therapist from October 2018 until October 2020 when she resigned.   The respondent had closed because of the Covid-19 pandemic in March 2020 and reopened in July 2020.  The claimant was pregnant when the Spa reopened and did not start her employment again when it reopened. She resigned on 13th October 2020.

The claimant alleged she was subject to unlawful discrimination on the grounds of pregnancy/maternity and suffered unauthorised deductions as a result of being taken off furlough.  The claimant submitted this was due to the actions of Ms Dunlop, the owner of the respondent, by driving round the claimant’s house and by sending threatening emails.

The Tribunal had to grapple with a number of factual issues as well as credibility of the witnesses.  One of the key issues was the evidence of the claimant which seemed to be exaggerated at points.  For example, the claimant alleged Ms Dunlop had stopped at her house, parked her car, peered through the window and posted a letter at her address.  Yet at other points, the claimant alleged Ms Dunlop had driven past the claimant’s property.   There were other trivial points made such as other employees not wishing the claimant a happy birthday in the WhatsApp chat.

There was a grievance procedure in relation to the claimant’s return to work, her pregnancy and respiratory distress.  These points were dismissed and the claimant appealed.  Ms Dunlop sent a letter in October 2020 stating that the claimant, through a medical certificate, was fit to work on limited duties. As a result, the respondent wished for the claimant to make contact no later than 20th October to discuss the situation and that SSP would be stopped as there was no renewed medical certificate.  The claimant responded with her resignation stating she was always fit for work, but it was the nature of the return to work. The respondent asked in writing if that was what the claimant really wanted to do and was happy to allow for the resignation to be rescinded and the claimant to continue her employment.  The claimant confirmed the resignation.

An issue raised was that the claimant’s information had been removed from the respondent’s website prior to her resignation.  The claimant felt this was as though she had already been dismissed.  This was not dealt with in the witness statements, so the respondent’s witnesses were recalled to give evidence.   The witnesses stated it was a mistake made by an independent contractor who was migrating the website. The Tribunal did not find this version of events to be credible.

Outcome:

The Tribunal found the claimant failed to provide prima facie evidence of a breach regarding the discrimination based upon pregnancy or maternity.  The medical evidence relating to the breathlessness during the pregnancy was regarded as being unhelpful to the respondent and it was entirely reasonable for the employer to seek a further specific medical report to help determine safely what adjustments would be necessary.  The claimant had failed to consent to an Occupational Health report and the respondent did not even insist on it.   It was held that there was no less favourable treatment demonstrated by the claimant.

The claimant’s unfair dismissal claim was dismissed on the basis that there was no breach of contract shown.

Practical Guidance for Employers:

This case goes back to the lockdown period and the difficulties that arose for particular employees.  In this case, it was a pregnant employee.  The medical evidence from the GP and the respiratory department did not provide precise detail in terms of what was required for the claimant. This left the respondent in a situation where they did not know the adjustments to make.  The claimant failing to engage with occupational health made it very difficult for the respondent.  The Tribunal found there was no unfavourable treatment towards the claimant nor was there any breach of contract.