Ms A Dugdale v Key Cars (Widnes) Ltd (in Liquidation) — 2023

The claimant, Ms A Dugdale, worked as a telephone operator for Key Cars (Widnes) Ltd. The tribunal found that cigarette breaks were a common and accepted practice and that, after a WhatsApp message on 4 August 2021 warning that putting the phones on hold while smoking would be gross misconduct, the practice of taking cigarette breaks continued with the respondent's knowledge. The claimant was then disciplined after cigarette breaks on 16 and 18 August 2021, but the tribunal found that the respondent ignored her point that other employees had behaved in the same way without being disciplined and did not investigate the comparators she named.

The tribunal held that pregnancy was the reason, or part of the reason, for the claimant's dismissal and that her automatic unfair dismissal claim under section 99 of the Employment Rights Act 1996 succeeded. It found that the respondent relied only on the 18 August cigarette break at the disciplinary hearing, gave no explanation for the different treatment between the claimant and other employees, and failed to address the claimant's pregnancy-related complaint in the dismissal and appeal letters. The tribunal also found that the respondent had made no attempt to adjourn the disciplinary hearing to investigate the equality issue raised by the claimant.

The claimant's two harassment claims under section 26 of the Equality Act 2010 also succeeded. The first concerned a comment made to the claimant's mother that if the claimant was able to go shopping, she was able to come to work, in the context of pregnancy-related sickness absence. The second concerned a comment made to the claimant's mother on 10 September 2021 that the claimant would be able to return to work after 12 months once she had learned her lesson. The tribunal found both comments to be unwanted conduct related to pregnancy and satisfied that they had the required effect on the claimant.

On remedy, the tribunal awarded £2,890 for loss of earnings for unfair dismissal, representing 17 weeks at the claimant's weekly take-home pay of £170, and made no basic award. It awarded £12,000 for injury to feelings for the two harassment claims and £1,433.35 interest on that sum. It also awarded £680 under section 38 of the Employment Act 2002 for failure to provide written employment particulars. The written judgment corrected an oral mistake so that interest was awarded only on the injury-to-feelings sum, and the total monetary award was £17,003.35.