Mrs L Macmillan v Hair Division Ltd, S/103370/11

Heard at Edinburgh Employment Tribunals (Scotland), 15-17 November 2011

Summary of Claim

The Claimant, Mrs Lisa Macmillan, was dismissed for capability (equal to serious misconduct) on grounds of absences from work due to sick leave, and appealed against this, claiming the dismissal was unfair, and was in fact sex discrimination due to her pregnancy – the claimant was eight months pregnant at the time of dismissal, but did not have sufficient service to claim ordinary unfair dismissal (a minimum of one year’s service at the time of dismissal) . The claims also covered notice pay, holiday pay, arrears of pay, other payments, .

She was seeking an unspecified amount, and was represented at the tribunal by Mr Eddie Egan of Unison.

Summary of Result

In a lengthy judgment (running to 38 pages) that was described by the Employment Appeals Tribunal as “complex and not easy to follow”, the respondent was found by the Tribunal to have unfairly denied the claimant Statutory Maternity Pay (SMP), and that decision was indicative of discriminatory action, which led to findings of discrimination & unfair dismissal.

The findings of the Tribunal & jurisdiction on which the foundation of these were reached, were appealed and this was successful.

The jurisdiction of the tribunal to consider entitlement to SMP was found by the Employment Appeals Tribunal not to include decisions on entitlement to SMP, and furthermore, that the claimant was required to provide notice in writing to make such a claim.

As these matters were so fundamental to the Tribunal’s reasoning, the findings of discrimination could not stand.

The claim for holiday pay for 2010 was also overturned on appeal, as the claimant had the opportunity to take the leave during the year in question.

Employment Tribunal Judgment

Unfair Dismissal

The employment tribunal found the dismissal (a decision taken by Employment Law Clinic on behalf of the employer) was connected with the claimant’s pregnancy, and thus was automatically unfair.

Lie Time

The tribunal found insufficient information to support any claim for lie time.

Holiday Pay

The claim for holiday pay was accepted, the respondent ordered to pay £681 for the previous leave year (2010), and £191.45 (an accepted claim that had been met by the respondent in advance of the hearing) for the leave year before the dismissal (2011).

Notice Pay

The facts of the case demonstrated that the notice pay due had been met, and this claim failed.

Statutory Maternity Pay

The Tribunal deemed that it had the jurisdiction to consider SMP, and therefore made an award for Statutory Maternity Pay to the value of £712.62.

Remedy for Discrimination

Having found the claimant was dismissed for a reason relating to her pregnancy, the tribunal made an award of £5,000 for injury to feelings.

Employment Appeals Tribunal Judgment

Sex Discrimination

The Employment Appeal Tribunal found that the Employment Tribunal did not have jurisdiction to consider the claimant’s entitlement to Statutory Maternity Pay, and as the finding of entitlement (an entitlement that the claimant had never appealed against to HM Revenue & Customs, the correct arbiter of such matters) was so fundamental to the Tribunal’s findings (see paragraph 59 of the EAT judgment), the discrimination claim (including unfair dismissal) was set aside.

Holiday Pay

As the Claimant had the opportunity to take leave in 2010 but had failed to exercise this opportunity, the EAT made an important addition to employment case law in an area the Tribunal had observed was continuing to “present problems”: with the opportunity to take her leave in almost seven months before going off sick for the balance of the leave year, but having failed to do so, the relevant employment case law applying was “use it or lose it” (Fraser) – and as the claimant had the opportunity to use it, but didn’t, she lost this entitlement.

The case was remitted to a freshly constituted employment tribunal, but withdrawn in full by the claimant on the first morning of the scheduled hearing.

Full Judgments

The full employment tribunal judgment is available here.

The Employment Appeals Tribunal judgment is available here.

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