In Queen Victoria Seamen’s Rest Ltd v Ward UKEAT/0465/08 the Employment Appeal Tribunal (“EAT”) held upheld an Employment Tribunal’s findings that an employer’s course of conduct, that resulted in an employee resigning when seven months’ pregnant, amounted to pregnancy discrimination.

The facts in Queen Victoria Seamen’s Rest Ltd v Ward UKEAT/0465/08

Ms Ward worked as an Assistant Operations Manger for Queen Victoria Seamen’s Rest Ltd (“QVSR”), a maritime charity. Ms Ward lived in a flat on QVSR’s premises, which she had access to the tenancy of because of her job (although the tenancy was a separate contract and not linked to her contract of employment).

In September 2005 Ms Ward passed her probation period and she received positive comments and reviews from staff members and residents at QVSR. To all intents and purposes Ms Ward was well supported at QVSR.

In January 2006 Ms Ward discovered that she was pregnant and informed Human Resources of this fact. After this date Ms Ward experienced a number of issues at QVSR, including:

  • Two of Ms Ward’s team members being disciplined by the new Chief Executive Officer, Ms Ndiwe, on 18 January 2006 without Ms Ward being informed
  • Ms Ndiwe criticising Ms Ward in a meeting on 31 January 2006 as a result of an alleged lack of punctuality on Ms Ward’s part
  • Ms Ndiwe criticising Ms Ward’s performance in an appraisal hearing on 2 February 2016, rating her performance as a “2” out of 5
  • Ms Ndiwe setting up a new workstation for Ms Ward in Ms Ndiwe’s office on 31 January 2006, after the appraisal meeting
  • A resident becoming physically aggressive towards her in March 2006, frightening and upsetting her

On 19 March 2006 Ms Ward submitted her own draft pregnancy risk assessment and on 23 March 2006 Ms Ward submitted a written grievance about the appraisal, complaining about the appraisal meeting (detailing that she had become tearful during the appraisal, that she had not been allowed to leave the room when she asked, and was only allowed a comfort break when she insisted) and complaining about the conduct of Ms Ndiwe.

On 2 April 2006 Ms Ward was refused access to QVSR’s premises (thereby being denied access to her flat), ostensibly to protect Ms Ward’s health and safety.

A protracted grievance process then ensued, with Ms Ward’s grievance outcome being rejected (with her complaint of discrimination not being properly addressed), as well as her grievance appeal. She resigned from her employment on 4 July 2016 and subsequently made a claimto the Employment Tribunal of pregnancy and maternity discrimination.

The Employment Tribunal’s decision

The Employment Tribunal found that Ms Ward had been subjected to less favourable treatment on the grounds of her pregnancy or maternity as a result of the following conduct:

  • The failure to carry out a proper health and safety assessment after Ms Ward was abused by a resident in March 2006, whilst she was pregnant
  • Providing Ms Ward with an inappropriate work station
  • Failing to carry out a proper pregnancy risk assessment
  • Failing to carry out a proper pregnancy risk assessment
  • The change in attitude towards Ms Ward after she announced her pregnancy
  • Ms Ndiwe criticising Ms Ward for alleged lateness
  • The delay and confusion in undertaking the grievance process

The Tribunal also found that Ms Ward had resigned in response to an ongoing discriminatory course of conduct by QVSR, starting with the failure to carry out a risk assessment and continuing with the persistent failure to undertake such an assessment, as well as the failure to investigate her grievance.

QVSR appealed against the Tribunal’s decision on the grounds that, for each complaint that the Tribunal had upheld, it had erroneously applied a “but for” test rather than the “reason why” test.

The Employment Appeal Tribunal’s decision

The EAT dismissed QVSR’s appeal, holding that, although there had been some erroneous wording at parts of the judgment, the Tribunal had applied the relevant law correctly and that it had not strayed from the “reason why” approach to be followed (i.e. an examination by the Tribunal of the reason why the Claimant had been treated in the manner that she had).

Our lawyers’ comments

Although the law relating to this case is reasonably dated (the Equality Act 2010 was brought into force relatively soon after this appeal was held), this case is helpful for two main reasons: 1) it lays down that employers will be expected to undertake risk assessments for pregnant employees, and that a failure to do so may be pregnancy discrimination (or, at the least, an inference of such); and 2) it provides useful guidelines for pregnant employees in similar circumstances, in terms of what employers should generally be expected to treat pregnant employees.

The Employment Appeal Tribunal’s judgment can be found here.

About Redmans Employment Team

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

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One Response to Queen Victoria Seamen’s Rest Ltd v Ward – failure to carry out risk assessment for pregnant employee was discrimination

  1. […] the case of Queen Victoria Seamen’s Rest Ltd (QVSR) v Ward UKEAT/0465/08 (analysed in this post) the Employment Appeal Tribunal upheld a Tribunal’s findings that the employer’s course […]

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