A hairdresser who was sacked just four days after telling her employer she had fallen pregnant while on maternity leave was discriminated against because of her pregnancy, a tribunal has ruled.
The remote tribunal found that Miss Siobhan Black – who had to remind her employer, Pat Drain Barbers, of her legal rights when it tried to dismiss her during her first pregnancy – was the only employee to be “paid off” after disclosing her second pregnancy.
The tribunal found that Evelyn Drain, owner of the business, claimed there was a “genuine redundancy situation” because it was struggling financially, but was unable to prove on the balance of probabilities that the decision was not related to Black’s newly announced pregnancy with her second child.
The tribunal heard that Black, who started working at the Glasgow-based salon as a barber in October 2019, had a number of years’ experience and that the business “historically was not very profitable”. In 2020, Black became pregnant with her first child and the tribunal heard that Drain immediately tried to terminate her employment.
Black took advice from her husband about her employer rights during her pregnancy and reminded Drain that she was protected by law, after which the tribunal heard that Drain dropped the proposal.
The tribunal found that in February 2020 the business was becoming “quiet and unprofitable”, and Black agreed to a reduction in hours as she knew the company was struggling. Drain also claimed that all employees had agreed to be flexible with their hours and reduce them.
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The company’s lack of financial success was impacted further during the pandemic, and Black was furloughed from March to July 2020. She then went on maternity leave until 10 April 2021 following the birth of her child.
The business reopened briefly between July and November 2020 but a further lockdown meant it was closed until 5 April 2021. The tribunal also heard that Drain’s accountant “emphasised” the need to cut costs and suggested that Drain contact Acas if she were to consider redundancies.
In March 2021, Black met Drain to discuss her return to work and they agreed she would return on 12 April to work 16 hours per week, as Black indicated she wanted to both work and spend time with her baby. Additionally, she was claiming universal credit and a 16-hour work week would not impact on her receiving that benefit.
Black subsequently discovered she was pregnant with her second child and, on 7 April, advised Drain that she would still return as planned a few days later. Meanwhile, the salon had seen a small uptick in customers since reopening from lockdown, but this was short-lived and once again business was “poor”.
The day that she returned to work, Black was told by Drain that she was being “paid off” and when she asked if any other employees were being paid off, Drain told her they were not. The tribunal found that no other staff members had their hours reduced, as Black was initially led to believe.
Black told the tribunal that she was “distressed and upset” by the news as she had since separated from her husband and was anxious about how she could afford to support her family as a single mother. Black, who was already taking medication for epilepsy, claimed the stress of this news caused her to have an epileptic fit and spurred the need for her to be on a stronger dose of medication.
Black has not worked since her redundancy.
The tribunal ruled that Black was a credible and reliable witness, as was Drain, with the exception being when she was asked to explain her decision to make Black redundant and the reason for the redundancy. Drain claimed there was a “genuine redundancy situation” but Black argued that she was “simply chosen” after revealing she was pregnant.
Employment judge James Hendry said Drain was not a “persuasive witness” as she was unable to prove on the balance of probabilities that Black’s dismissal was not on the grounds of her pregnancy.
The tribunal ruled that the timing and conjunction of events coupled with the past actions of Drain when Black first became pregnant was “sufficient in our view to allow us to draw inferences of discimination”.
Black was awarded £7,500 for discimination on the grounds of pregnancy and injury to feelings, and noted that Drain “resisted” the decision by arguing her redundancy was for business reasons.
Kate Palmer, HR advice and consultancy director at Peninsula, said the ruling was a “clear-cut case” of pregnancy discrimination and that financial woes were no excuse for such treatment. She said: “Although this case is set in the context of the pandemic and the catastrophic impact it had on businesses, it reminds us that a tribunal will look through evidence to find the real reason for the respondent’s action, and the chronology of events is all important.”
Paul Seath, partner at Bates Wells, said the ruling was a reminder that discrimination can be “inferred from what’s happened even without any direct evidence”.
“Once an inference is drawn, the employer must show that the act was not on the ground complained of,” he explained. “If the employer cannot do that, a finding of discrimination will follow. In short, there does not need to be actual evidence of discrimination. If it can be said to be a possibility, and there isn’t another credible explanation, the employer will lose.”
Neither Black nor Pat Drain Barbers could be reached for comment.