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An employee has been awarded over £93,000.00 in compensation after her boss dismissed her for having morning sickness by sending her a jazz hands emoji. In this article, we take a look at the recent decision handed down by the Employment Tribunal in Paula Miluska -v- Roman Property Group Limited and the pitfalls for employers of breaching legislation designed to protect pregnant employees.
A copy of the Judgment can be found here.
Miss Miluska was employed by the Respondent as a property investment consultant. In October 2022, Miss Miluska discovered she was pregnant and began to suffer with morning sickness. On 21 November, Miss Miluska needed to leave work early because of her increasing nausea she had with her pregnancy. The expectant mother informed her line manager, Mr Ammar Kabir by a text message what had happened stating that she had to “go home earlier” as she felt “really faint, shaking and had cold sweats”. She explained that this was due to her pregnancy and morning sickness. The conversation by text message continued and eventually Mr Kabir agreed that Ms Miluska could work from home.
On the following day, Miss Miluska sent Mr Kabir a further text message in which she stated “the midwife was saying that at the moment if I can work from home it’ll be best as these next two weeks are usually the peak of pregnancy nausea due to hormones… also she mentioned that when I get back to work you need to do a health and safety assessment. I’m not sure what that is”.
There was no further communication between Mr Kabir and Miss Miluska until 26 November when Mr Kabir asked Miss Miluska how she was feeling. Miss Miluska replied that she felt “horrendous” adding that she “didn’t know why it’s called morning sickness when it hits you all day every day.”
On the following evening, Mr Kabir replied to Ms Milusa’s text message asking her if she could go to the office for a few days the following week and finish by 4.00pm “so its not too much”. The Tribunal found that there was “nothing untoward” in this response as Mr Kabir was due to go on holiday the following week. In response, Miss Miluska said “Oh gosh I was about to message you about taking the week off. I was sick six times today and if it doesn’t ease up within the next few days I’m going to have to be admitted to hospital… I don’t think I’ll even be able to work from home, never mind the office,” she replied. She also apologised for her absence, writing: “So sorry I can’t support you right now, I feel bad…”
Mr Kabir did not respond to Miss Miluska’s text message until 1 December , when he sent to her a vaguely-worded text message.
“Hey hope ur OK u [sic] 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” he wrote.
“Aside from this, me personally, I’m going to try and see what other opportunities are there I can get you through the door… 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].”
Miss Miluska was shocked by the message, as was clear by her response.
“I’m confused with what’s going on. I’ve been working remotely as agreed since I told you I was pregnant to the best I can while suffering from maternity-related sickness,” she replied. “I’ve secured another allocation despite feeling worse than ever during the peak of morning sickness and now you’re firing me?”
Miss Miluska received no further pay from her employer after 1 December.
The first issue to be decided by the Employment Tribunal was whether or not Mr Kabir’s text message of 1 December amounted to a dismissal. Despite Mr Kabir arguing that the text message did not mean that Miss Miluska was dismissed, Employment Judge Garry Smart said that it was “objectively clear” from his text message that he was “bringing the employment relationship…to an end”. He stated further that the text message was deliberately “obscure” to dress up the “bad news being delivered”.
In reaching his decision, Judge Garry Smart followed the principles established in the recent case of Omar -v- Epping Forest District Citizens Advice [2024] IRLR 92 that needed to be applied to decide if ambiguous words amounted to the termination of employment and if so, with or without notice. The principles include, amongst other things the following:-
The Judge went on to determine that the reason for Miss Miluska’s dismissal was her pregnancy and upheld Mr Miluska’s claims of pregnancy discrimination and automatic unfair dismissal. RPG was also found liable for failing to provide a statement of terms and conditions of employment, a statement of written reasons for dismissal and itemised pay statements, Miss Miluska was awarded a total of £93,600.00 in damages which included, amongst other things, £20,000.00 for injury to feeling and £5,000.00 for aggravated damages together with past and future financial losses.
The Equality Act 2010 makes it unlawful for an employer to treat a woman unfavourably because of pregnancy or maternity. An employer will directly discriminate against a woman on the grounds of pregnancy and maternity if a woman is treated unfavourably because:-
A woman is protected against pregnancy and maternity discrimination from the date of pregnancy (the employer must know that the woman is pregnant for discrimination to occur) and continues until after the woman has returned from maternity leave. So, if you are treated unfavourably because of pregnancy, a pregnancy related illness (which occurred during pregnancy or during your period of maternity leave) or because you intend to take, are taking or took maternity leave, you may have a claim for pregnancy and maternity discrimination.
In order to be protected from discrimination in relation to a pregnancy related illness, the illness must occur at any point from the date of pregnancy until the employee has returned from maternity leave (or two weeks after the end of pregnancy if the employee is not entitled to maternity leave).
The test for direct discrimination because of pregnancy and maternity is whether the treatment is unfavourable rather than less favourable (which is the test in other cases of discrimination). The effect of this is that a woman does not need to compare her treatment with that experienced by others.
A woman will be treated unfavourably if she suffers a detriment or disadvantage. Examples of unfavourable treatment include not offering someone a job, demotion, not considering an employee for a promotion, dismissal, disciplining a woman for refusing to carry out tasks due to pregnancy related risks, giving a woman less responsibility on the assumption that her work will become less important to her after childbirth, stopping someone returning to work because they are breastfeeding etc.
The amount of damages that can be awarded to an employee for direct discrimination because of pregnancy or maternity are uncapped.
It is automatically unfair to dismiss an employee for reasons connected with pregnancy or maternity. An automatically unfair dismissal is a dismissal that is so inherently unfair that an employee is not required to prove two years’ continuous service in order to bring a claim. This means that if a woman is dismissed because she is pregnant or has a pregnancy related illness or for a reason connected to maternity, she may be able to claim that she has been automatically dismissed from day one of her employment.
Where a woman is able to prove that she has been dismissed for a reason connected with pregnancy or maternity, there will be no need for her to prove that her employer acted unreasonably or failed to follow a fair procedure as would be necessary to establish in a claim for ordinary unfair dismissal. The reason itself will be automatically unfair and the Tribunal will not be required to consider the reasonableness of the decision to dismiss or whether the dismissal was procedurally unfair.
The decision in Miluska is a stark reminder to employers of the pitfalls associated with breaching employment legislation designed to protect pregnant employees. In this case, Ms Miluska was awarded significant damages as compensation for her employer’s breaches. Employers should therefore take particular care to ensure that they do not treat a woman unfavourably as a result of her pregnancy or any period of maternity.
The case also serves as a useful reminder of the principles that the Employment Tribunal will apply when interpreting ambiguous words of dismissal.
Our Employment team has extensive experience of advising both employers and employees in a wide range of employment matters including discrimination and unfair dismissal. If you require advice in connection with any of the issues raised in this article or any related matters, then please contact Charlotte Buck or Alex Pearce.
The above is meant to be only advice and is correct as of the time of posting. This article was written by Charlotte Buck, Senior Associate in the Employment Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2025.
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