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When push comes to shove!! – Lawyer unfairly dismissed and discriminated against pregnant nanny in Ms Saesi Musilipah v Mr Sylvian Dhennin (15 October 2018)

Date: 15/10/2018
Duncan Lewis, Employment Solicitors, When push comes to shove!! – Lawyer unfairly dismissed and discriminated against pregnant nanny in Ms Saesi Musilipah v Mr Sylvian Dhennin

Summary

Ms Musilipah successfully claimed direct pregnancy discrimination and automatic unfair dismissal against Mr Dhennin, a partner at Hogan Lovells. She had been employed by Mr Dhennin and his wife as a nanny and housekeeper.

The employment tribunal awarded Ms Musilipah £11,000 compensation, £6,500 damages for injury to her feelings and £500 interest.

Background

Ms Musilipah began to work for Mr Dhennin and Mrs O’Sullivan as a nanny and housekeeper from January 2017.

She enjoyed a happy working relationship with Mr Dhennin and his wife, caring for both their children and provided housekeeping services.

In August 2017 Ms Musilipah suspected that she may be expecting and a scan on 28 August 2017 confirmed that she was approximately 8 weeks pregnant.

The week prior to disclosing her pregnancy to Mrs O’Sullivan, Mrs O’Sullivan had talked of her plans for Ms Musilipah’s role within the household for the foreseeable future. She explained that she would give Ms Musilipah a garden key to invite more of the eldest son’s friends for play dates and take him to swimming and music lessons.

On Monday 18 September 2017, Ms Musilipah told Mrs O’Sullivan of her pregnancy.

On Friday 22 September 2017, without any warning, approximately an hour before she was due to finish for the day, Mr Dhennin told Ms Musilipah that he and his wife no longer needed her to work for them because both children were going to nursery full-time.

He handed her a letter of termination which confirmed that she was dismissed. She finished work that day.

Decision

The tribunal judge found primary facts of discrimination, as follows:

  1. Mr Dhennin knew of Ms Musilipah’s pregnancy but had made subsequent attempts to hide or obscure that knowledge.

  2. There was a failure to provide a reasonable explanation for the omission of Mr Dhennin’s knowledge.

  3. Mr Dhennin made an untrue assertion that Ms Musilipah was warned of the risk of redundancy.

  4. There was no full-time nursery place for one of the children prior to 25 September 2017 and no evidence of acceptance of a place before then.

In considering whether Mr Dhennin had a non-discriminatory explanation, the tribunal judge found:

  1. The children being at nursery meant there was a diminished need for Ms Musilipah’s services. However, it was not accepted that her duties ceased.

  2. There was a lack of cogent evidence that the decision to dismiss was made before knowledge of the pregnancy, on 18 September 2017.

  3. It was an untrue assertion that Ms Musilipah had been made aware she was at risk of redundancy.

  4. It was inaccurate that Ms Musilipah had in some manner expected redundancy.

As a result, the tribunal judge found that Ms Musilipah was dismissed because she was pregnant. There was little difficulty in finding that pregnancy was a material factor in the decision to dismiss, which meant Ms Musilipah was successful in her claim for pregnancy discrimination and automatic unfair dismissal.

Employment Law Specialist’s Comment

This is a peculiar case in that this situation should have been entirely avoidable. As a well-qualified and respected lawyer, Mr Dhennin had considerable resources to draw on to follow best practice.

This case serves as an important reminder to employers that a tribunal can draw inferences of discrimination where knowledge of a claimant’s pregnancy is hidden and inaccurate or inconsistent evidence is given to explain the mistreatment.

Author, Joshua Platt, is a Trainee Employment Solicitor working alongside Director Anthony Thompson who has over 20 years’ experience in this area. Under Anthony’s supervision Joshua assists in matters relating to unfair dismissal, discrimination; and unlawful deduction from wages.

For advice on this matter or any other employment related issue, contact:

anthonyt@duncanlewis.com 020 7014 7343

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