Case of the Week

£313,672.36 awarded for unfair dismissal, pregnancy discrimination, victimisation and breach of contract

Mrs N Hefford v Dr M Jack and others

Queensway surgery

You may have already read press reports about this case, simply because of the significant sum awarded to the Claimant, Mrs Hefford. Originally it was set at £294,372.72 but, after reconsideration at a further hearing, it was increased to £313,672.36.

It’s all about pregnancy and taped conversations.

By way of background Mrs Hefford was employed at Queensway Surgery, Southend-on-Sea. She hadn’t been there too long, starting in November 2017, she was employed as the Practice Manager.

The Practice had five partners, Dr M Jack, Dr A Sivaprasad, Dr J Sorouji, Dr O Aderonmu and Dr S Azeem. All five are named as defendants in the case. The five partners interviewed the Claimant for her job. In evidence she claimed that one of the questions they asked her at her interview was whether she had any children, and, when she said no, whether she planned to have any children.

I’ve recently done a TikTok video on questions not to ask at interview and this was one of them. It’s a definite no, no and I note the partners denied she had been asked such a question but the tribunal preferred the evidence of the Claimant on this point.

Mrs Hefford was duly appointed and for all intents and purposes she performed adequately. The partners did have some issues with her performance and brought evidence of email correspondence between them to the hearing, but the fact was that she had not been copied in to the emails, nor had she been given any indication that there were any issues with her work. In fact, she was offered a more generous bonus scheme after completing her probationary period.

“I’m having a baby” 👶

Mrs Hefford informed the GPs she was pregnant on 6 November. A couple of days later she attended a meeting in one of the practice meeting rooms along with other members of staff. She had to leave early to attend to an engineer who had arrived on site.

She left her phone and notebook in the meeting room. As it happens, Mrs Hefford used to record meetings on her phone so that she could write accurate minutes. The GPs were aware she did this although they did not give specific permission to do so. Her phone was recording when she left the meeting. She had been away a long time - 2 hours, and when she returned she could hear Drs Sivaprasad, Azeem and Aderonmu talking about her on the other side of the door.

Her recollection was that the words were these.

“If we are going to sack her, we can’t possibly do this locality work. We’re going to be too busy steadying the ship after we have sacked her”. “No no no, we need to forget all of this. We need to look at our mapping. We need to get together and have a meeting to talk about mapping”. “We need to focus now. We need to focus on sacking her and then steadying the ship because that’s going to take up an awful lot of time.”

Not what she wanted to hear on her return! She added that after the comment made by the female voice, (Dr Aderonmu), she also heard the phrase “mother hen” and it was after these words that she left the vicinity.

She was understandably upset and reported the incident to her colleague. She also retrieved the phone later that day and the conversation had been recorded. There was some debate about the recording as Mrs Hefford subsequently deleted it, nonetheless the tribunal accepted her evidence in respect of what was said at that meeting, notwithstanding the three doctors present denied saying they were planning on sacking her.

The following month the Practice had a CQC inspection and the Claimant and Dr Azeem worked together to prepare for the inspection.

In January 2019 the outcome of the inspection was published. The nonclinical areas, those which the claimant was responsible, were passed with flying colours, while the clinical aspect the surgery needed a lot of attention.

The Claimant’s thoughts were that she and the partners had worked together well to deal with this inspection and she hoped that the partners had moved on from their plan to dismiss her.

However, she was to be disappointed. From January 2019, the partners had off-site meetings to which she was not invited. She emailed Dr Sorouji asking him not to bypass her. Dr Aderonmu forwarded this to the partnership on 22 January saying she was very concerned about the tone of the email and suggesting there should be a formal meeting with the claimant to discuss her email instruction. The email said,

“I suggest we act quickly on our dismissal plans; we have again let this drag on for too long”.

So the plan was set in motion. Critically, the Tribunal said:

“We find that by January 2019, the partners had determined to dismiss the claimant as Dr Aderonmu set out. We also find that there while the emails that have been disclosed show discontent with the claimant, we have found that the concerns in 2018 prior to the pregnancy announcement were minor. The concerns raised in 2019 are also minor matters. They are raised to further the dismissal plan.”

This is not good for the Practice!

To move matters on they decide to hold a disciplinary investigation chaired by Dr Sorouji. That was a mistake. Dr Sorouji was held not to be impartial as he was was personally involved in the complaints. He was concerned about the claimant’s conduct to a greater extent and earlier than his partners.

The Tribunal found that it was not a genuine investigation and that the partners had already determined that disciplinary action was going to be required. They also found the lack of notice, format of the meeting and the manner in which it was conducted were not in accordance with ACAS best practice¹.

The grievance

Mrs Hefford raised a grievance setting out her concerns. This had the effect of pausing the investigation pending the outcome of her grievance. At this point the practice appointed a third-party HR consultant from the Face2Face service, part of Peninsula Business Services Limited, to hear the grievance and to make recommendations to the practice.

Peninsula provide HR outsourcing services

Now, Peninsula are a huge business to business company providing HR support to help smaller businesses who do not have their own HR departments. As part of the grievance investigation/outcome a consultant from Face2Face interviewed Mrs Hefford and Dr Sorouji.

Quite astonishingly the consultant determined that the conversation that the Mrs Hefford says she overheard, which amounted to her being sacked for being pregnant, had not occurred, even though none of the doctors were interviewed. Her grievance was subsequently dismissed.

Mrs Hefford appealed the grievance, so another consultant from Face2Face heard the appeal and, not surprisingly, that too was dismissed.

Back to the disciplinary . . .

Now the coast was clear to continue with the disciplinary meeting. The practice came up with four allegations, namely;

• alleged breach of confidentiality,

• HR protocols,

• breakdown of the working relationship,

• and breach of health and safety.

An investigation meeting was held, chaired by yet another third party consultant. He recommended that Mrs Hefford attend a formal disciplinary hearing.

The disciplinary meeting took place in May chaired by a fourth third-party consultant. The allegations were not the same as the investigation. She was now accused of;

• eleven breaches of confidentiality,

• conducting return to work meeting with a member of staff in an intimidating manner,

• displaying rude and objectionable behaviour towards Dr Sorouji,

• and failing to follow a reasonable management instructions by not actively engaging with Peninsula.

It is fair to say the ‘charge sheet’ was flimsy to say the least. However, following the meeting the consultant upheld the allegations and recommended Mrs Hefford’s dismissal.

As it transpired the tribunal held that none of the allegations were capable of amounting to unfair dismissal.

Communicating the dismissal

On 9 June 2019 Mrs Hefford was admitted to hospital. She said in evidence that she received an email from Dr Azeem asking to have a telephone conversation. She replied telling him that she was in hospital and it was not a good time.

Despite this, Dr Azeem sent a copy of the disciplinary report to the her the following day, together with a letter terminating her employment and giving her five days to appeal.

She asked for the time limit to be extended but had no response so she discharged herself and managed to send in the appeal in time. She also gave them five days to respond but they waited until the sixth day to send her a response setting a six-week timetable to hear the appeal.

Understandably by this time she had lost faith in the doctors and elected to start the tribunal process.

Comment

How on earth this ever made it to a tribunal is beyond me. When seeking advice as to the merits of a case it is always prudent to consider the worst case scenario. This is a discrimination claim, so there is no statutory cap for unfair dismissal. Losses were potentially limitless so whoever is representing or advising the employer should warn them of the strengths and weaknesses of their case.

In this particular instance there were plenty of weaknesses. The fact that they had no issues with her before the pregnancy announcement, The overheard conversation, the flimsy allegations of misconduct, the wrong choice of chair for the disciplinary, the different allegations for the disciplinary, the inadequate investigation by Face2Face, the mishandling of the grievance and appeal - virtually everything they did was wrong.

The only thing I can find in this case that follows good practice is that the disciplinary was put on hold whilst the grievance was dealt with.

Other than that the whole process was simply a tick box exercise to rubber-stamp and predetermined outcome.

Quite why they chose to fight this and not settle is not known - perhaps they had an insurance policy covering tribunal claims or maybe they were ignorant or naieve as to the potential liability they faced. Either way the strength of Mrs Hefford’s case should have steered them in the direction of an out of court settlement. But that was not to be and for that, the practice has paid the price.

Have you been treated similarly or suffered discrimination at work, particularly due to pregnancy or maternity? I’d love to hear if you have. Email me or leave a comment.

The tribunal award

I have set out below the tribunal award exactly as it is in the judgment. You will see that when considering financial losses, tribunals take into consideration more or less everything and go through some fairly lengthy calculating.

Financial Awards

Bonus £12,000

Overtime £9,300

Notice Pay £12,801.72 (12 weeks pay at £923.08 plus pension loss of £143.73)

These are all gross payments. The Claimant will need to account for her own tax and NI. Total financial award - £34,101.72.

Compensation and Injury to Feelings

The compensatory period is from 01.01.20 – 31.12.22. This is broken down into three periods:

1. 01.01.20 – 31.05.21 – This is 99 weeks at £885.89 per week (£695 net wage plus £190.89 pension loss). This equates to a figure of £87,703.11 less income received of £1,720 (SMP received in January – March 2020) and £10,661 (income from casual employment throughout the period). Total award for past losses - £75,322.11

2. 01.06.21 – 31.12.21 – Maternity Pay of £8,025. This is 90% of the Claimant’s wage at £923 for six weeks which is £4984 and a further 20 weeks SMP at £152 per week

3. 01.01.22 – 31.12.22 – This is 52 weeks at £885.89 (£695 net wage plus £190.89 pension loss). This equates to £46,066.28 less potential future income of £5,300 (Tribunal found that the Claimant would likely earn half of what she has already earned from casual employment). Tribunal also awards £12,000 for future bonus. Total award for future losses - £52,766.28

Total compensatory award - £136,113.39 (£75,322.11 + £8,025 + £52,766.28)

25% uplift for failure to follow ACAS Codes of Practice. This equates to £34,028.35

This brings the total losses compensatory award to £170,141.74 (£136,113.39 + £34,028.35)

Injury to Feelings - £30,000
Aggravated Damages - £5,000
Interest - £3,123. Interest is calculated at 8% per annum. Interest began on 1st April 2019 which was the start of the discriminatory treatment. The daily interest rate on £35,000 (injury to feelings and aggravated damages) is £7.67 (£35,000 x 8% / 365). From 1st April 2019 – 12th May 2021 is 407 days. £7.67 x 407 = £3,123.

Thus the total compensatory award is £208,264.74 (£170,141.74 + £38,123)

This needs to be grossed up as the Claimant will pay tax on these elements and the figures are calculated using net figures. 40% is the gross up figure given that the Claimant will be a higher tax payer this year through the award. The £30,000 tax free allowance is deducted (as the Claimant gets tax free sum of £30,000 from any award). The figure to gross up is therefore £178,264.74. Gross up figure is £71,305.90 (£178,264.74 x 40%).

Thus the total compensatory award is £279,570.64 plus the £34,101.72 (financial loss – bonus, CCG etc) brings a total of £313,672.36

1. A tribunal can increase the compensatory award by up to 25% if they consider the ACAS Code has not be adhered to.