A property consultant who suffered from early pregnancy morning sickness has been awarded £93,600 after she was dismissed in a message that included a ‘jazz hands’ emoji.
The Birmingham employment tribunal concluded that the text message she received was “deliberately obscure” but that it was “obvious” that her dismissal was because of morning sickness that had made her absent from the office.
The claimant, Miss Miluska, began working for Roman Property Group, the respondent, in Birmingham in March 2022. She discovered she was pregnant in October 2022 and the following month began suffering from morning sickness.
On one occasion this made her go home early and she informed Mr Kabir, one of two co-respondent directors, of her pregnancy.
Her midwife advised her to work from home for the next fortnight while her nausea symptoms peaked and hopefully subsided.
On 26 November, Kabir messaged Miluska to ask how she was feeling. She replied: “Horrendous, I don’t understand why it’s called morning sickness when it hits you all day every day… how are you?”
Kabir responded: “I’m good. Do you think you’ll be able to come to the office Tuesday to Friday the coming week and finish like 4 so it’s not too much” and “I might be flying out for these couple of days”.
Unable to WFH ‘never mind the office’
Miluska replied saying she was about to message about taking the week off. She explained she had vomited six times that day and if it did not settle down she would be admitted to hospital with hyperemesis gravidarum.
She said, “I don’t think I’ll even be able to work from home, never mind the office” and “So sorry I can’t support you right now, I feel bad…” She then joked about whether she should send her partner in instead, adding a laughing smiley emoji to the end of the message.
Kabir did not respond until 1 December, in what the tribunal panel described as the most crucial message in resolving this dispute.
It said: “Hey hope ur OK u probably guessed by now will need to try and find someone to be in the office as we’re falling behind on work. I just want to say I hope you don’t take it personally or see us as bad but we are really struggling. Aside from this me personally I’m going to try and see what other opportunities are there I can get you through the door for just message me when you’re feeling better. Romaan said he’s going to clear the days you did so up until 21st that will be with you today. Hope to see you soon we’ve got a lot of catching up to do outside of work [jazz hands emoji].”
Jazz hands or “hugging face” emojis are used to convey a variety of feelings including enthusiasm, warmth and a sense of accomplishment.
‘Deliberately obscure’
The tribunal found that the bad news being delivered is “not immediately obvious because it is given in an obscure and indirect way. We find that the message has been left deliberately obscure by Mr Kabir and the person he made the decision with and consequently [Roman Property Group].”
It further found: “In our judgment, the deliberately vague text message was written to dress up the bad news being delivered in as positive a way as possible, to soften the landing of the news they were giving to the claimant.”
The following day, Miluska replied that she was “confused with what’s going on”, explaining she had been working remotely “as agreed since I told you I was pregnant to the best I can while suffering from maternity-related sickness. I’ve secured another allocation despite feeling worse than ever during the peak of morning sickness and now you’re firing me?”
She messaged that it was “very out of the blue” adding that she had “not been paid again” and that she expected to be paid for all the days she had worked from home, including sick days, with commission included.
‘Seriously meant’ as dismissal
Based on the documentary evidence, the tribunal found that the text messages did not support Roman Property’s case that it had informed Miluska she had not been dismissed and it was never its intention to dismiss her.
The tribunal accepted the words used in the text message were not clear, they did not include the usual words of dismissal and made no mention of giving notice. However, it considered it was “seriously meant to be a dismissal” and concluded that it was.
“It had been discussed at director level. It resolved a problem for the company, namely a pregnant employee not able to work because of morning sickness which was causing the respondents difficulties,” said the judgment.
The tribunal found that Miluska was not discriminated against because of her pregnancy but because of illness as a result of her pregnancy, and that all three respondents in the case were liable.
The total compensation for discrimination amounted to £88,100, including past and future losses, injury to feelings and aggravated damages. It also ruled that Roman Property Group was liable for £5,500 for failures to provide a statement of terms and conditions of employment, to provide a statement of written reasons for dismissal and to provide itemised pay statements. The total award was £93,600.
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