Black v Pat Drain Barbers: Pregnancy discrimination during maternity leave

An Employment Tribunal has held that a barber who fell pregnant while already on maternity leave was discriminated against when she was made redundant by her employer.

This decision demonstrates the need for employers to follow a fair procedure in any redundancy process even where the financial difficulties of the employer are clear, and particularly where employees with protected characteristics are concerned.

Background

Miss Black was a barber employed by a Glasgow salon, Pat Drain Barbers, from October 2019 until she was dismissed in May 2021.

The employer had been in financial difficulties for some time, which worsened during the coronavirus pandemic. Just prior to the pandemic, the employer decided to reduce the hours of all staff, which Miss Black agreed to. During the pandemic Miss Black was then placed on furlough between 23 March 2020 and 11 July 2020.

Miss Black discovered she was pregnant with her first child in 2020. When she informed her employer of her pregnancy, the business owner attempted to dismiss her immediately. At which point, Miss Black reminded the business owner of her employment protections and the employer withdrew the proposed dismissal. Miss Black was not dismissed at this stage and went on maternity leave, giving birth in July 2020 before returning to work in April 2021.

In early April 2021, Miss Black found that she was pregnant again and immediately informed her employer.

It had been agreed that on her return, Miss Black would support another barber in the salon with an excess of clients. However, on her first day back at work after informing her employer of her second pregnancy, Miss Black was held back and informed of her redundancy. Miss Black was the only employee to be made redundant and no other staff had their hours reduced at this time.

Decision

The Employment Tribunal held that the employer could not show that the dismissal “was in no sense whatsoever on the grounds” of the claimant’s newly announced pregnancy.

The Employment Tribunal acknowledged the financial difficulties of the employer but ultimately held that the timing of the redundancy, which took place essentially as soon as Miss Black returned from maternity leave after announcing her second pregnancy, in conjunction with the employer’s failure to consult on the redundancy was sufficient for the Tribunal to draw inferences of discrimination.

Miss Black succeeded in her claim for discrimination on the grounds of pregnancy and was awarded £7,500 for injury to feelings.

Comment

This decision serves as a reminder to employers that a Tribunal will look to find the real reason for dismissal, even where there is no clear evidence of discrimination, but an inference of discrimination can be drawn from the facts. It is important to note that in spite of the employer’s clear financial difficulties, the employer was unable to provide another explanation for the claimant’s dismissal than her pregnancy.

Employers must therefore ensure that they consult appropriately on any redundancy process and that the selection criteria they use are not discriminatory, whether directly or indirectly.