Dismissed because pregnant

An employment tribunal has concluded that a woman was unfairly dismissed from her role at a Marks and Spencer bakery due to her pregnancy.

Nilgun Kayahan Kolan was employed for a short time at the Watford branch in October 2023. Initially, she had been assured by the company that she wouldn't need to lift anything over 5kg due to a back issue.

However, after being transferred to the Watford location following her induction, she was asked to lift heavy boxes, according to evidence presented to the tribunal.

During a conversation about her role, a manager reportedly told her, "I can’t move you anywhere else because your English isn’t good enough."

Ms. Kayahan Kolan described breaking down in tears, with the manager, Caroline Bowie, briefly patting her on the shoulder before making it clear that she was expected to leave. She stated that Caroline didn’t ask any questions about her pregnancy or health, nor did she explore alternative roles or reasonable accommodations.

She expressed her concern that her dismissal came directly after revealing her pregnancy, reinforcing her fear that disclosing it would cost her the job.

Following the meeting, she waited for about 30 minutes, expecting someone to address the situation. When no one did, she knocked on Ms. Bowie's office door to seek answers. In her statement, she recalled asking, “What can I do?” and requesting documentation related to her dismissal.

Reportedly, Ms Kolan was then told to leave her swipe card on the way out, which made her believe that she had been dismissed, albeit without process or documentation.

Ms Bowie told the tribunal that she had asked Ms Kolan to go home and consider her options, referring to potential other vacancies in the organisation. However, she also confirmed that she did not believe any other roles were suitable, due to Ms Kolan’s poor command of English, but that she would have been quite happy to continue employing her in the bakery.

The tribunal unanimously accepted the claimant’s case that the status of her employment was not sufficiently explained to her and that the language used clearly indicated dismissal.

Learnings

As always, your processes ensure compliance!

When an employee discloses pregnancy, employers should undertake a pregnancy / maternity risk assessment, which also includes questions regarding the capability of the individual and specified risks of the work activity.

Following this, both parties should have a documented conversation to discuss the way forward. If the employee is unable to perform their usual duties, employers can re-assign them temporarily or place them on paid leave until maternity leave can commence.

Before this is enforced, we would recommend an occupational health review or the request of a doctor’s report.

In any case, it is vitally important to communicate clearly and openly and, as always, back up your conversations with a letter, email or file note.