Case 1311169/2020 · Employment Tribunal

Mrs M Nykiel v Mona Hotels Ltd — 2021

Case reference: 1311169/2020
Decision date: 7 September 2021
Jurisdiction: England & Wales
Judge: Employment Judge Miller
Panel members: Ms L Wilkinson, Mr P Paw

Indexed: 21 May 2026

Parties

2 named

Claimant

Mrs M Nykiel

Respondent

Mona Hotels Ltd

Key findings

Tribunal's reasoning

Mrs M Nykiel brought this later case after an earlier tribunal judgment on 1 October 2020 had already upheld claims including pregnancy and maternity discrimination, unlawful deductions from wages and holiday pay, and had declared her normal weekly earnings for SMP purposes to be £240. In this case she said Mona Hotels Ltd had failed to pay any statutory maternity pay and that this amounted to pregnancy and maternity discrimination under s.18 Equality Act 2010. The respondent did not present a response or attend the hearing.

The tribunal held that the protected period ended on 28 December 2019, when the claimant's maternity leave ended, and that the alleged failure to pay SMP arose only after the earlier judgment of 1 October 2020. It therefore concluded that any unfavourable treatment connected with non-payment of SMP did not occur within the protected period. In the alternative, the tribunal held that the SMP issue had been raised, or ought reasonably to have been raised, in the earlier proceedings and was barred by issue estoppel and the rule in Henderson v Henderson. The pregnancy and maternity discrimination claim was dismissed.

On the separate SMP claim, the tribunal held that it had no jurisdiction to determine whether the claimant was entitled to statutory maternity pay from the respondent. It referred to the statutory maternity pay legislation and to Hair Division Ltd v MacMillan and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, and concluded that entitlement disputes fall within the statutory adjudication route unless the amount has already been agreed or determined by HMRC or on appeal. No further monetary award was made in this judgment.

Claims and outcomes

2 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Pregnancy and maternity discrimination	The claimant alleged that the respondent's failure to pay statutory maternity pay was unfavourable treatment under s.18 Equality Act 2010. The tribunal held that the alleged treatment occurred after the protected period ended on 28 December 2019 and, alternatively, that the point had been decided or should have been raised in the earlier proceedings.	Dismissed	Pregnancy and maternity	—
Other	The claimant also pursued a claim for non-payment of statutory maternity pay. The tribunal held that it had no jurisdiction to determine entitlement to SMP because the amount had not been agreed between the parties or determined by HMRC or on appeal, so the claim could not be decided by the Employment Tribunal.	Other	—	—

Legal tests applied

5 references

Official outcome judgment PDF

Gov.uk primary record

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