Recent cases provide a timely reminder that employers still make costly slip-ups when managing pregnant workers and those returning from maternity leave. We highlight some useful lessons from those cases on how to avoid discrimination claims.
When a worker announces their pregnancy to their employer, the employer becomes subject to additional obligations until the end of the protected period when the worker returns from maternity leave. One such obligation is not to discriminate against that worker on grounds of their pregnancy or maternity leave. However, cases involving pregnancy/maternity discrimination are still hitting the headlines. So what should employers be doing differently?
1. Don’t make insensitive comments
Comments relating to a worker’s pregnancy/maternity which have the purpose or effect of violating the worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them will amount to harassment related to sex contrary to the Equality Act 2010.
In Shipp v City Sprint UK Limited where a Marketing Director received several inappropriate comments after she announced her pregnancy during a period of financial difficulty for her employer. She was asked when she stopped using contraception and whether her pregnancy was planned. Her superiors asked how she thought her pregnancy would affect her long-term career prospects. The CEO remarked, “when you have to leave that little one at nursery, you won’t want to come back” and allegedly suggested that colleagues bet on “how much weight Sally will put on” during her pregnancy.
Mrs Shipp claimed that those comments were offensive and humiliating. When Mrs Shipp was made redundant, the earlier comments (in addition to deficiencies in the redundancy process) led the Tribunal to conclude that her dismissal was unfair and discriminatory on grounds of sex and pregnancy/maternity. The employer was ordered to pay £25,000 plus interest in compensation for her injury to feelings.
This case is a reminder that intrusive comments about a person’s pregnancy should be avoided. Employers should have an anti-discrimination and harassment policy which states that such behaviour will not be tolerated. All staff should receive regular equality and diversity training and managers should be briefed on handling workers’ life events with sensitivity.
2. Be flexible on working arrangements
Although the pandemic has changed many people’s working patterns, it will sometimes be appropriate to give additional leeway to pregnant workers or workers returning from maternity leave.
The Employment Appeal Tribunal in Dobson v North Cumbria Integrated Care NHS Foundation Trust held that there is still a “childcare disparity” relevant to indirect sex discrimination claims – i.e. certain policies or practices, such as a requirement to work full time, may put women at a substantial disadvantage compared to men because women are still statistically more likely to bear childcare responsibilities.
In Thompson v Scancrown Ltd t/a Manors, an estate agent reportedly began to be excluded from work after becoming pregnant in 2018. Once Ms Thompson returned to work following maternity leave, she submitted a flexible working request asking to work a four-day week and to vary her hours to finish an hour earlier in order to collect her child. The Employment Tribunal held that the flexible working request was not seriously considered by her employer. Ms Thompson’s claim of indirect sex discrimination succeeded. This failure proved costly – her employer was ordered to pay compensation of £184,961.32 and £13,500 for injury to feelings.
An employer receiving a flexible working request in this situation should always give it due consideration. This is alongside an employer’s duty to adjust a pregnant worker’s role if there is a risk to them or their baby. If the employer can accommodate a request without undue difficulty, it should do so. However, if the requested working pattern is not viable, the employer should give clear written reasons for why that is. Where an employer is unsure about the potential impact, it is preferable to agree a trial period than to refuse outright.
3. Be prepared to justify your decisions
An employer making a decision about a pregnant worker should keep a clear record of its business rationale. Employment Tribunals will expect to see a paper trail evidencing a non-discriminatory justification for the steps the employer took.
The employer did this successfully in Prosser v Community Gateway Association Ltd. Ms Prosser, a clinically vulnerable, pregnant zero hours worker, was sent home early in the pandemic. Following a risk assessment, the employer decided not to offer Ms Prosser night shifts given the risks of lone working. Ms Prosser was paid more than her legal entitlement during her absence. The Employment Tribunal held that there was no discrimination – the employer had acted according to available public health guidance and recorded the rationale for its decision in a formal risk assessment which was aimed at protecting Ms Prosser and her baby.
Kinlay v Bronte Film and Television. The employer told Ms Kinlay she would not be reprising her role in the second season of a television show because her visible pregnancy would not fit with her character’s storyline. In defending against the resulting discrimination claim, the employer stated that it was a genuine occupational requirement for the purposes of the Equality Act 2010 that the actor playing the role was not visibly pregnant. The Employment Tribunal disagreed. It considered the shots Ms Kinlay was due to star in and held that there were several options open to the production company – props, staging, lighting, costume, etc. – to conceal Ms Kinlay’s baby bump. Therefore, there was no ‘genuine occupational requirement’ for the actor in the role not to be pregnant.
Employers learning that their worker is pregnant should avoid knee-jerk reactions. It is wise to conduct a pregnancy risk assessment and determine whether any adjustments are needed to the worker’s role considering their pregnancy. They should then keep clear records of those thought processes. It is helpful to involve the worker in that process so that their needs can be discussed and a way forward agreed.