Case No. ED027/09

In a decision dated 20 November 2009, the Guernsey Employment & Discrimination Tribunal (“the Tribunal”) upheld complaints of unfair dismissal and sex discrimination against a respondent employer on the grounds of pregnancy. The Tribunal went on to find that the written reasons given for dismissal (performance) were untrue.

Facts

Ms Lucy Campbell (“C”), a Client Services Administrator, started work with Augentius Fund Administration (Guernsey) Limited (“Augentius”) on 28 July 2008.

C was required to work a six month probationary period. Two probationary review meetings were held during C’s probationary period, the first in September 2008, the second in January 2009. Although conflicting evidence was given on her performance at the hearing, the Tribunal accepted C’s evidence (supported by documented performance ratings) that she had fulfilled the requirements of probation.

Prior to the second probationary meeting, C had informed Augentius that she was pregnant. When she asked for clarification of her maternity pay entitlement under the contract terms notified to her at the start of her employment, she was told that those terms, which were generous, did not apply to her. Instead she was told that under separate terms, which had not been drawn to her attention when she started work with Augentius, she had no entitlement to maternity pay.

Subsequently, further meetings took place at which C’s maternity pay entitlement was discussed. At these meetings she was again told that she had no entitlement to paid maternity leave.

On 18 February 2008, C was called into a meeting and told, without preamble, that her employment was being terminated. As no explanation was given for her dismissal, C requested a written explanation. She received a letter the next day stating that her dismissal was performance-related. As C had only been given positive feedback at her probationary review meetings, she doubted this was the real reason for her dismissal, which she attributed to her pregnancy.

Nine days’ later, the Company sought to rescind notice and requested C to return to work. She declined on the grounds that the employment relationship had become untenable and brought claims of unfair dismissal and sex discrimination on the grounds of unfair treatment attributable to her pregnancy. She also challenged the reason given for her dismissal.

Decision

The Tribunal held that:

1. The reason for dismissal was C’s pregnancy, not her performance.

2. On this basis, there was no requirement for C to comply with the qualifying period for unfair dismissal, normally twelve months (C’s period of continuous service at the date of dismissal was only seven months).

3. C had been directly discriminated against by Augentius on the grounds of her sex by virtue of being dismissed by reason of pregnancy.

4. The award would be six months’ pay on the basis that there was one single act that resulted in both the unfair dismissal and the sex discrimination.

5. A further award of half a month’s pay was made in relation to a separate claim by C that the written reasons given for her dismissal (performance) were untrue.

Comment

This is the fourth sex discrimination claim to be heard by the Tribunal in Guernsey and the first complaint to be upheld. Two interesting points come out of the decision. The first is in relation to the Tribunal’s approach to the direct sex discrimination complaint; the second is in relation to the amount of the award.

To establish sex discrimination, a complainant normally has to point to a male comparator as the law requires a woman alleging sex discrimination to show that she has been treated “less favourably than… a man”. So, for example, a woman might allege sex discrimination by comparing her salary with a male colleague in the same position if she feels she is underpaid.

Historically, it has been problematic for courts and tribunals to identify a male comparator in pregnancy-related sex discrimination claims as only women get pregnant. In this case the Tribunal considered that an appropriate comparator was a woman who was not pregnant. We consider this a curious approach on two grounds: firstly, it compares a woman to another woman rather than to a man; secondly, it disregards the now well-established principle of UK law that discrimination on the grounds of pregnancy is automatic sex discrimination (i.e. there is no need to establish a comparator), since pregnancy is a condition that it is applicable only to women1.

The second point arising from the Tribunal’s decision (in relation to the amount of the award) is perhaps of more general interest. 1 Webb v EMO Air Cargo (UK) Limited (No. 2) [1995] IRLR 645 The Tribunal applied the principle that, for more than one award to be made, there should be at least two separate breaches and these should have occurred on separate occasions.

We have difficulty understanding this approach. The Employment Protection Law provides for an award of six months’ gross pay to be made in circumstances where an employee is unfairly dismissed on the grounds of pregnancy2. The Sex Discrimination Ordinance separately provides for an award of three months’ gross pay to be made where any employee is discriminated against on the grounds of her sex, including where she is dismissed3. There is no provision in either law that these awards should be reduced if a single act results in a discriminatory dismissal. In fact, on the contrary, both the Employment Protection Law and the Sex Discrimination Ordinance provide that the award “is in addition to any other right or remedy relating to or arising from the complaint or the circumstances thereof and… is not deductible… from any other payment that may become due, in respect or as a consequence thereof”4.

We construe these sections as entitling a successful complainant to recover both an unfair dismissal and a sex discrimination award where a dismissal is based on a discriminatory reason on the grounds of sex.