Nicholson v Hazel House Nursing Home Ltd

The Claimant worked as a care assistant for the Respondent since November 2011 until she resigned. Her original contract required her to work 18 hours a week, but in fact she worked significantly more until she became pregnant in September 2012. As a result of her pregnancy she suffered from severe morning sickness and asked for her shifts to be moved from morning to afternoon. The Respondent did so, but at the same time reduced the number of shifts from 5 to 3 per week. This resulted in a decrease in her monthly pay which took her below the threshold for qualifying for statutory maternity pay. The initial information provided to her by the Respondent stated that she will qualify for maternity pay, however she only qualified for maternity allowance. In order to continue her employment, the Claimant was required to attend training organised by the employer. One of the training days coincided with her 20th week scan, however the Respondent stated that she will have to attend the training and if she does not she will be suspended as she would not be up to date with the training requirements.

The Claimant started her maternity leave in March 2013 and in October 2013 raised a grievance complaining about her reduction in shifts. The grievance was investigated by Ms Banks who was involved in the acts which the Claimant complained about. The decision maker substantially dismissed the grievance without meeting with the Claimant because although there was a reduction in shifts, the hours she worked did not reduce below her contractual hours. The Claimant resigned on 31st December 2013 without mentioning the grievance, but citing personal reasons instead. She appealed the grievance on 13th January 2014, but the Respondent did not receive a response to their further information request and set aside the appeal process indefinitely.

The Employment Tribunal ruled that the reduction in shifts did amount to pregnancy discrimination, however the claim was presented legal time limit permitted for making a claim. It also dismissed the claim of constructive unfair dismissal as it concluded that the Respondent’s conduct surrounding the grievance and the procedure did not entitle the Claimant to terminate her contract.

The Employment Appeal Tribunal held that:

• The ET did not give the required significance to its findings of pregnancy discrimination.
• There fact that the appeal was not pursued did not have an effect on the constructive dismissal claim.
• Although on its own the grievance outcome does not amount to a repudiatory breach, the ET did not consider whether it was the ‘last straw’.
• It is irrelevant whether or not the Claimant mentions her grievance in her resignation. There is no such requirement.
On the above findings, the EAT overturned the ET’s decision and substituted a ruling that the Claimant was constructively unfairly dismissed.