Mrs K. Amin v Calvary Pre-School Limited — 2019

Mrs K. Amin worked for Calvary Pre-School Ltd as a nursery nurse/apprentice from 23 February 2015. The tribunal found that she told the respondent she was pregnant at the end of May or beginning of June 2017 and completed her Level 3 apprenticeship on 28 June 2017. It found that Ms Bailey had previously said a new permanent contract and pay rise would follow completion, but then refused to move her onto a higher-paid permanent contract unless a hard-copy certificate was produced, and later relied on low child numbers and financial difficulty. The tribunal found those explanations were not the true reasons and that the respondent delayed the new terms because the claimant was pregnant and would soon be on maternity leave.

At the meeting on 15 September 2017 the tribunal found that Ms Bailey said words to the effect that the claimant's brain did not function properly because she was pregnant and that she was always arguing and raising problems. It rejected the allegation that Ms Bailey avoided inviting a director to the meeting, and it also rejected the DBS-renewal allegation, finding that Ms Bailey's mistaken view about waiting until the claimant returned from Pakistan was not because she was on maternity leave.

On the claimant's return from maternity leave on 28 June 2018, the respondent gave her a new contract with a salary of £10,600, which she signed on 13 July 2018. The tribunal found that she was entitled to be paid under the 2016 contract until 13 July 2018 and under the 2018 contract thereafter, but she was paid only SMP rates in July and August 2018. It upheld the unauthorised deduction from wages claim for underpayment from 13 July 2018 onwards, including holiday pay, and found that the discrimination complaints before June 2018 were in time because the respondent's conduct was an ongoing state of affairs within Hendricks; alternatively, time would be extended as just and equitable.

The tribunal upheld pregnancy and maternity discrimination in relation to the refusal to give a pay rise and permanent contract in June and September 2017, the pregnancy-related remarks, the failure to assist in resolving the pay and status dispute, the late-September 2017 offer of full-time work only from the return date, and the August 2018 underpayment. It dismissed the allegations that Ms Bailey had excluded a director from the meeting, that she had made the statements attributed to her by the notes from the second part of the meeting, and the DBS-renewal complaint.

For constructive unfair dismissal, the tribunal held that the persistent failure to pay the sums due under the 2018 contract from 13 July 2018 was itself a repudiatory breach, and that the wider discriminatory course of conduct over about 18 months was likely to destroy or seriously damage trust and confidence. It found that the claimant resigned on 28 September 2018 in response to that conduct, so the dismissal was unfair and itself discriminatory. Liability was decided only; the tribunal listed a separate remedy hearing for 5 November 2019.