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A recent case is almost a text book example of how not to deal with a pregnant employee. And how to make sure your case is undefendable at Tribunal.
But what is most surprising is that, the defendants even tried to defend their position. They were fairly convinced they had done little wrong, had not dismissed the employee, despite not paying her, and had never provided her with any employment documentation. These were costly mistakes for them but provide valuable lessons for others.
In Miluska v Roman Property Group Ltd and others, the Employment Tribunal (ET) ruled that the dismissal of a pregnant employee suffering from morning sickness was discriminatory and automatically unfair.
The Claimant, employed as a property consultant, informed her employer via text that she was too unwell to work from the office due to morning sickness. In response, she received a vague text message implying the termination of her employment.
Not only did the Tribunal find that the message objectively constituted dismissal, it was unlawfully discriminatory due to her pregnancy. In addition to a substantial injury to feelings award, the employer was penalised for failing to provide essential employment documentation, such as a contract, payslips and confirming in writing, her reasons for her dismissal, as well as breaching other statutory rights related to the lack of any proper dismissal procedure. All of which resulted in a total compensation award of £93,616.74.
Key Issues Identified
1. Lack of Clarity Over the Dismissal
The Tribunal found that though the dismissal was communicated via an ambiguous text message, they unequivocally interpreted it as bringing the employment relationship to an end. The principles established in a previous case, Omar v Epping Forest District Citizens Advice, were applied to assess whether the text message constituted a dismissal.
The key considerations were:
Whether the words objectively indicated termination of employment.
Whether they were "seriously meant" and not just an expression of intent.
The perspective of any reasonable bystander.
The employer’s failure to use a clear, formal, and unambiguous method of communication led to significant legal consequences.
2. Discrimination Against a Pregnant Worker
Under Section 18 of the Equality Act 2010, the Tribunal found that the dismissal was directly linked to the employee’s pregnancy and the associated illness (morning sickness). The employer’s treatment was deemed unfavourable and discriminatory.
The key elements were:
The Claimant was in the protected period of pregnancy.
She suffered illness due to pregnancy, which was a protected characteristic.
She was dismissed because of this illness, which amounted to direct discrimination.
This ruling reinforces the ever-stricter legal employment protections for pregnant employees, and the severe financial repercussions for employers who fail to adhere to them.
3. Lack of Employment Process and Documents
The employer failed to provide basic employment documentation, resulting in additional penalties. These included:
No statement of terms and conditions of employment.
No written statement of reasons for dismissal.
No itemised pay statements.
This negligence led to financial penalties and an ACAS uplift of 25%. The lack of formal documentation exacerbated the employer’s liability, reinforcing the importance of compliance with employment law requirements.
Five Action Points for Employers
1. Formalise Dismissal Procedures
Always communicate dismissals in a clear, formal, and written format.
Provide a formal written dismissal letter with clear reasoning, notice periods, and final pay details.
Ensure that the wording leaves no room for ambiguity.
2. Respect Pregnancy and Maternity Rights
Understand and adhere to the Equality Act 2010 protections for pregnant employees.
Avoid any adverse treatment linked to pregnancy or maternity leave.
Make reasonable adjustments for pregnancy-related illnesses.
3. Maintain Proper Employment Documentation
Provide all employees with a written contract and terms of employment from day one.
Issue clear and itemised pay slips.
Provide written reasons for dismissal when required by law.
4. Improve Employer-Employee Communication
Avoid using informal methods such as texts, instant messaging or social media for serious employment matters.
Use formal letters that are then emailed for critical communications.
Check with your inhouse or external professionals that key employment decisions are made for the right legitimate reasons, and in accordance with the law.
5. Train Managers on Employment Law Compliance
Educate Managers on fair dismissal procedures and discrimination laws.
Train them to handle sensitive situations, such as pregnancy-related absences, professionally.
Regularly update policies to reflect legal requirements and best practices.
Conclusion
This case serves as a stark reminder of the legal and financial consequences of poor employment practices. Employers must ensure that dismissals are handled professionally, pregnancy rights are protected, and essential employment documentation is in place. By implementing these key actions, employers can mitigate legal risks and foster fairer workplace practices.
The guidance provided in this article is just that - guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice