A family lawyer was found to have discriminated against a pregnant employee after he raised questions about her capability as a single mother and wrongfully accused her of benefit fraud.
A Nottingham employment tribunal (ET) ruled that Elaina Brown faced pregnancy and maternity discrimination when her employer, Ash Bhatia, managing director of Bhatia Best Solicitors, used her pregnancy and an allegation of fraud that he lodged as grounds for dismissal.
Judge Ahmed said Bhatia “failed to provide a non-discriminatory explanation for [Brown’s] treatment” and that he was satisfied that Bhatia’s belief that she had committed benefit fraud was “neither a reasonable belief nor an honest belief”.
He ruled that the firm had engaged in pregnancy and maternity discrimination, but dismissed claims of automatic unfair dismissal and direct sex discrimination.
Brown had not been employed for long enough to qualify for ordinary unfair dismissal.
The Department for Work and Pensions (DWP) found no evidence of fraud by Brown.
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Brown worked as a paralegal in 2015 for the Nottingham-based firm before taking a career break. She was then re-employed at the firm from July 2016 until her dismissal August 2017.
In March 2017, she fell pregnant with her fifth child and notified Bhatia the following month. The tribunal heard that it was a “difficult pregnancy” and that Brown’s health deteriorated. She suffered from a number of pregnancy-related issues, and some of these entailed absences from work.
On 7 August, Brown’s pre-arranged pregnancy checkup overran, and she called Bhatia to let him know she would miss a client meeting. As a result, Matt Best, operations director and founding partner, took the meeting in her absence.
Brown claims that when she returned to the office, Best told her that her failure to return in time was “unacceptable” and that her pregnancy was “causing a burden on the department”. The tribunal notes this account is disputed by Best but that it accepts the account given by Brown.
Later that day, Brown discovered that Bhatia was asking colleagues about her personal circumstances, and if she was still living with her husband, whom she had recently separated from. Brown emailed Bhatia asking why he was contacting colleagues for information and offered to answer any questions.
Bhatia’s reply said: “The fact that you are pregnant, have had pregnancy-related difficulties, and not least that you are the sole carer of four children (already) simply exacerbates my concerns.”
He went on to describe Brown’s situation as “far from ideal… far from ordinary or straightforward” and that he was “concerned about your [Brown’s] four children”. He advised that he could not “turn a blind eye” to these matters and suggested a meeting on 8 August.
The meeting was held and, immediately after, Bhatia’s PA noted a discrepancy in the surnames being used by Brown, whose previous surname was Shaw. Brown was separated but not divorced from her husband and had reverted to using her maiden name – which she had used throughout the entirety of her employment.
Bhatia called the DWP, apparently to query the discrepancy in name – even though tax credits are now handled by HM Revenue & Customs not the DWP, a fact that the ET found Bhatia would have been “well aware” of.
Bhatia then called the Benefit Fraud Hotline and opened a fraud investigation into Brown, claiming he believed she had failed to notify the DWP of her marriage and change of circumstances and committed welfare benefit fraud.
Following this allegation, Bhatia held another disciplinary hearing on 9 August 2017 where it was decided Brown had committed benefit fraud. She was dismissed in a letter dated 15 August for gross misconduct.
The ET ruled that Brown’s pregnancy and her inability to attend the client meeting led to her being reprimanded, and found a link between her pregnancy and unfavourable treatment.
It also found that Bhatia’s evidence of his belief of a criminal offence was not credible. Judge Ahmed said that the evidence to support his belief of criminal activity was “flimsy to say the least” and “without substance”.
Ahmed added that Bhatia “appears to have believed he was insulated” by the fact that Brown had not been employed long enough to qualify for ordinary unfair dismissal.
Croner’s associate director, Paul Holcroft, said the case was a useful illustration of a female employee’s protection against discrimination related to pregnancy.
“There are some clear-cut examples here for employers of what not to do, including criticising an employee for the overrunning of a pregnancy-related medical appointment,” said Holcroft.
“The reality of this is that employees generally have no control over the timing or length of their appointment and can’t be penalised for this. In addition, the law doesn’t allow pregnancy-related absences to be used against an employee.”
A DWP compliance officer confirmed on 5 October 2017: “We are satisfied following our discussions and with evidence provided and we have therefore close [sic] this case.”