Ms M Grabowska v PSA Retail UK Limited (trading as Robins & Day) — 2021

The claimant worked for the respondent as a delivery driver from 17 December 2018. After her driving disqualification was identified in March 2019, Mr Hodgkinson agreed that she could work in the warehouse. She then went off sick on 21 June 2019 with an arm injury. When she did not return after the sick note expired on 5 July 2019, the respondent treated her as AWOL from 8 July 2019, sent a series of warning letters between 8 and 16 July, and dismissed her summarily on 18 July 2019. The tribunal found that the respondent moved quickly and did not attempt to telephone her, although at the point of the dismissal decision Mr Hodgkinson did not know that she was pregnant.

The tribunal rejected the claimant's case that the respondent knew of the pregnancy before the dismissal on 18 July 2019. It found she had not proved that a sick certificate said to have been posted on 25 June 2019 had reached the respondent, and the evidence that it had been sent emerged late and was inconsistent. The tribunal also noted that the claimant's later emails and the Shelter email of 19 July 2019 explained that she had been affected by domestic violence, homelessness, loss of her car and phone, and that she had found out she was pregnant on 25 June 2019. The claimant had also pleaded direct sex discrimination, but the tribunal treated the pregnancy complaint under s.18 Equality Act 2010.

The liability finding turned on the appeal stage. By 19 July 2019, and certainly by 22 July 2019 when Ms Durston returned from leave, the respondent had been told that the claimant was pregnant and why she had not been able to respond earlier. Mr Mace, who decided the appeal, knew of the pregnancy and had the later sick note showing pregnancy-related absence, but he did not take those matters into account and instead upheld dismissal for failure to follow process and protocol. The tribunal held that this reason was inextricably linked to the claimant's pregnancy-related illness, so the s.18 claim succeeded. The unfair dismissal claim could not proceed because of insufficient qualifying service, and the case was listed for a separate remedy hearing.