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A nursing home care assistant who was paid less than she was contractually entitled to – and was discriminated against by her employer after she became pregnant – has won the right to substantial compensation after the Employment Appeal Tribunal (EAT) ruled that she was constructively dismissed unfairly (Nicholson v Hazel House Nursing Home Limited).
Owing to what her employer, Hazel House Nursing Home Limited, described as an administrative error, Ms Nicholson had been paid 39p per hour less than she should have been throughout her employment. After she announced her pregnancy, and that she was suffering from morning sickness, she was moved from a morning to an afternoon shift pattern.
However, the move led to a reduction in the number of hours that she was permitted to work and, as a result of her reduced earnings, she lost her entitlement to maternity pay, only qualifying for the less generous maternity allowance. She was also threatened with suspension after her 20-week scan clashed with a training session. She lodged a grievance and, when that was rejected, resigned.
The Employment Tribunal (ET) found that the reduction in Ms Nicholson's shifts was discrimination on the grounds of pregnancy, but it also held that that claim was out of time and that it was not just and equitable to extend time for bringing that part of the claim. The ET went on to reject her claim that she had been constructively dismissed.
In upholding Ms Nicholson's challenge to that decision, however, the EAT detected a number of errors of law in the ET's reasoning. On the basis that only one conclusion was rationally possible, the EAT took the rare step of substituting a finding that her constructive dismissal was unfair.
In its decision, the EAT found that the unjustified rejection of Ms Nicholson's grievance, taken with all that had preceded it, was the final straw that had led to the breakdown of the relationship of trust and confidence between employer and employee.
The matter was sent back to the ET for assessment of Ms Nicholson's compensation.
Treating a woman less favourably because of pregnancy or maternity leave is unlawful sex discrimination and it is important for employers to understand the extent of their legal duties in this regard. There is no limit to the level of compensation that can be awarded in such cases. The maximum statutory limit to compensation for unfair dismissal is currently set at £78,962 or one year's gross pay, whichever figure is lower.