Croly v Kelly Ann Smith – A pregnancy and race discrimination case

3rd May 2022 Employment

What are the relevant facts of this case?

Sandy Croly was employed as a carer by Kelly Ann Smith from 18th May 2019 to 28th July 2019, when she dismissed via a text message. Ms Smith required full-time care and employed five carers including the Ms Croly. Ms Croly was experiencing a high-risk pregnancy at the time and had communicated to Ms Smith that she needed to be careful to reduce the risk of a miscarriage.

A few days prior to Ms Croly’s dismissal, she refused to lift her employer out of bed as she did not want to cause any strain on her body which would risk the pregnancy. Ms Smith responded by calling Ms Croly “useless” and saying that there was no use in her being there. In a text message on 28th July 2019, Ms Smith stated that the other carers did not want her to return to work, and that Ms Croly was dismissed from her employment.

What claims did Sandy Croly bring?

Ms Croly brought a claim to the Employment Tribunal of pregnancy discrimination, the detriments being Ms Smith calling her “useless”, the dismissal itself, and the subsequent decision not to give her job back. In addition to this, she brought a compliant of race discrimination. The Claimant describes herself as black and was the only black Personal Care Assistant working for the Respondent. She argued that the other carers intentionally excluded her, made snide comments, and gave her dirty looks. Furthermore, as part of her claim, Ms Croly pleaded that the carers falsely blamed her of smoking cannabis, which was a racially motivated accusation.

There were other monetary claims as well as a claim of whistleblowing.

What did the Tribunal say?

Ms Smith did not submit a Response to the claims or attend the hearing itself. Therefore, the Claimant’s evidence only was heard by the Tribunal.

The Tribunal found that Ms Croly was discriminated against based on the grounds of race and pregnancy. Her monetary claims also succeeded. The Tribunal considered the effect of the discrimination on Ms Croly, including stress and loss of confidence in returning to the caring profession. She has been signed off as sick by her GP since March 2020 due to complications resulting from her first pregnancy.

Ms Croly was awarded £24,432.36, £15,000 of which was an injury to feelings award resulting from the finding of discrimination.

What can those employing carers take away from this case?

This case demonstrates that employers who make discriminatory comments such as branding an employee “useless” in association with a pregnancy can be liable for paying out large sum awarded by Employment Tribunals. Whilst some may view this comment as minor or a trivial remark, the Tribunal will look towards the effect of the comment on the employee and the actions taken afterwards. In this instance, Ms Croly was dismissed and has experienced enduring effects from her employer’s treatment.

This case also demonstrates the importance of parties to proceedings showing up to the hearings and making their evidence known to a Judge. The Tribunal could only make a determination based on Sandy Croly’s evidence and had no reason to doubt her allegations. Had Ms Smith submitted a Response and attended the hearing, appearing as a witness, the decision here could have been different.

Specifically, the race discrimination complaint was mostly based on the other carer’s treatment towards Ms Croly. This case reinforces the principle that it is not just the employer’s treatment or comments which can result in a successful claim, but that they are also vicariously liable for their other employees’ actions in the course of employment.

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Emma Salkin is a Paralegal located in Manchesterin our Employment department

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Laura Wharton is a Partner located in Manchesterin our Employment department

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