Pregnancy discrimination: £46,500 award after employer’s "obdurate refusal" to give statutory maternity pay

Quigley v Paul McGrory t/a Cafe Ole NIIT/01251/08

Date added: 4 November 2010

sex discrimination | pregnancy | statutory maternity pay | unfair dismissal

The industrial tribunal in Northern Ireland has awarded around £46,500 to an employee whose employer refused to pay her statutory maternity pay, in a serious case of sex discrimination that led to the claimant having health problems. 

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An employee can receive statutory maternity pay (SMP) for a maximum of 39 weeks if her average weekly earnings are at least equal to the lower earnings limit for national insurance purposes. An employer that fails to pay SMP to an eligible employee is likely to face a sex discrimination claim. 

A woman who has given birth must not be allowed to do any work for a period of two weeks from the date on which her baby was born. For women who work in factories, the prohibited period is four weeks. 

Ms Quigley worked at a cafe in Londonderry that was owned by Mr McGrory. She worked between 40 and 45 hours per week, and was promoted to manager of both the cafes owned by Mr McGrory. Ms Quigley was paid between £240 and £280 per week before she became pregnant. Her hours were reduced to 30 hours per week when she became pregnant and she then received approximately £210 per week. 

When Ms Quigley became pregnant in November 2007, Mr McGrory appeared pleased and, when she met with him in March 2008, he assured her that he would be paying her statutory maternity pay (SMP). However, Ms Quigley claimed that, when she tried to give him her MAT B1 form, he refused to take it, saying that she should “hold on to it for him”. As a favour to Mr McGrory, she worked right up until the birth of her baby on 27 July 2008, with her waters breaking while she was at the cafe on 26 July. 

Soon after the birth, Ms Quigley invited Mr McGrory several times by text message to visit her to sort out her SMP, but he did not respond. He did eventually call her, but told her that his accountant had advised him that she was not entitled to SMP because she had been earning only £80 per week. Ms Quigley reminded Mr McGrory that she had in fact been earning up to £280 per week, but his response was that he had been putting only 15 hours of her working week "through the books". He suggested that she contact the social security agency and maintain the lies that he had already told, which she refused to do. 

In an attempt to resolve the non-payment of her SMP, Ms Quigley made contact with Mr McGrory several times in August 2008. He offered to pay her if she came back to work and even asked her to come in and conduct some interviews to find someone to cover for her while she was on maternity leave. 

Ms Quigley was upset and distressed by Mr McGrory’s treatment of her. She sought legal advice, and in September 2010 her solicitor wrote to Mr McGrory setting out her grievance. He did not respond to this or any other correspondence from her solicitor. She subsequently brought claims for, among other things, unfair dismissal and sex discrimination. 

The industrial tribunal had no hesitation in making awards for sex discrimination and unfair dismissal against Mr McGrory, who did not appear before the tribunal to defend the case. It concluded that the employer's failure to honour its contractual obligations in respect of Mr Quigley's SMP, and his subsequent attempts to have her join him in fraudulent actions against the social security agency, had fundamentally breached the employment relationship. She was awarded over £27,000 for unfair dismissal. 

The industrial tribunal also accepted that Mr McGrory had treated Ms Quigley less favourably on the ground of her pregnancy, and thereby her sex, by failing to pay her the SMP to which she was entitled. She was hurt, distressed and annoyed by the treatment and this had been exacerbated by the treatment being at a time when she ought to have been enjoying time with her new baby. The tribunal accepted that the treatment displaced that enjoyment and gave Ms Quigley such anxiety and concern that it triggered a period of anxiety and depression, as shown by the medical evidence. Ms Quigley’s compensation for injury to feelings for sex discrimination was £17,500. 

A total sum of just under £46,500 was awarded to Ms Quigley. 

View the full transcript of the case  (on the BAILII website)  

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