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In the case of Ginger v Department for Work and Pensions 3401940/2015  the Employment Tribunal held that the Department for Work and Pensions (“DWP”) had discriminated against a female employee when a colleague asked her whether she could cope with a second child and when she was refused leave to take further IVF treatment.

The facts in Ginger v Department for Work and Pensions

Mrs Ginger commenced her employment with the Department for Work and Pensions on 19 July 2009; she was at all times employed as a Work Coach at Luton Job Centre.

In 2011 she began a course of IVF treatment and gave birth to a son. In 2013 she began a further course of IVF treatment and in June 2014 she had a three-day absence from work for pregnancy-related/childbirth complications. In July 2014 she began a further course of IVF treatment and informed her then-manager, Mr Mills, that she may need time off at short notice for IVF treatment. On or about 29 September 2014 Mrs Ginger suffer a miscarriage and she was therefore absent from work until 14 January 2015.

On 23 October 2014 Mrs Ginger received a formal attendance review meeting to be held on 18 November 2014 in order to discuss what the DWP could do to held her return to work.

On 23 December 2014 a further meeting was held at the Luton Job Centre to discuss Mrs Ginger’s period of time off work sick. At this meeting Mrs Ginger stated that her doctor was concerned about her “blood levels”.

On 15 January 2015 Mrs Ginger attended a return to work interview with Mr Mills. Mrs Ginger confirmed that she had been absent from work after suffering two miscarriages, and that she was undergoing counselling due to her miscarriage. Mrs Ginger alleged that at this meeting Mr Mills stated to her “in order to have a miscarriage your pregnancy must be confirmed”.

Mrs Ginger also alleged that the following conduct occurred:

  • 27 January 2015: Mr Mills refused to allow her further attendance management review meetings to be conducted by a female manager;
  • 27 January 2015: Mr Mills issued her with a written warning for her absence;
  • 9 April 2015: Mr Mills asked her if she could cope with a second child and whether it was a good idea to have further IVF treatment;
  • That her was given a “box marking” of 3 as part of her annual review process;
  • 11 May 2015: Mr Mills said to her that “miscarriage is not bereavement”;
  • 15 May 2015: she was refused leave on 18 and 19 May 2015 to attend for further IVF treatment
  • That her email query of 18 May 2015 as to the reason for refusal of leave on 15th May was unanswered by Mr Mills

Mrs Ginger subsequently made a claim for pregnancy discrimination in the Employment Tribunal.

The decision of the Employment Tribunal in Ginger v Department for Work and Pensions

The Employment Tribunal upheld Mrs Ginger’s claims as follows:

  • 9 April 2015: Mr Mills asked her if she could cope with a second child and whether it was a good idea to have further IVF treatment – the Tribunal found that this conduct amounted to direct sex discrimination, as the Tribunal held that Mr Mills would not have spoken to a man in this manner; and
  • 15 May 2015: she was refused leave on 18 and 19 May 2015 to attend for further IVF treatment – the Tribunal found that this conduct amounted to direct sex discrimination, as the Tribunal held that Mr Mills would not have spoken to a man in this manner

The Tribunal awarded Mrs Ginger the following sums as compensation for her claims:

  • £17,500 as injury to feelings (with interest thereon of £3,394.52); and
  • £2,919.20 as financial losses (with interest thereon of £573.92)

Our solicitors’ view on Ginger v Department for Work and Pensions

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must take care to deal with female employees’ requests for time off work for IVF treatment, as well as any pregnancy-related absences, in a fair and reasonable manner, and must ensure that they treat female employees in a manner no less favourable than it would treat male employees. A failure to ensure such equality of treatment may lead to a successful discrimination claim, as it did here.”

The judgment of the Employment Tribunal can be found here.

About

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 Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk.

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