In the case of Ms C Kimberley v Calibre Building Services Ltd 2301151/2017 the Employment Tribunal held that the extension of a pregnant employee’s probation period for a second time was discriminatory, as the reason for making that decision was partly based on issues relating to the employee’s pregnancy.
The facts in Ms C Kimberley v Calibre Building Services Ltd
In May/June 2016 Calibre Building Services Ltd (“Calibre”) was looking to recruit a new Contracts Administrator. An agency provided candidates to the company for interview, and a round of interviews took place on 2 June 2016 – the agency was informed by Calibre that the company was looking for ‘longevity’ from the appointed candidate (i.e. that they were looking for at least 12-18 months of continuous service). Ms Kimberley, one of the interviewees, was offered the role on 8 June 2016 and accepted the offer on the same date.
On 15 June 2016 Ms Kimberley became aware that she was pregnant and called the recruitment agency, YourRecruit, to inform her of this fact. She asked whether she would still be allowed to start work at Calibre and was informed that she could do so. Ms Kimberley understood from this conversation that she was not required to tell Calibre about her pregnancy at that time; she started work on 20 June 2016.
In July 2016 Ms Kimberley confided to a number of work colleagues that she was pregnant, but did not tell them that she had known about her pregnancy before accepting the job offer.
On 25 July 2016 Ms Kimberley met with Ms Lowe, her line manager, to inform her of her pregnancy, and that she was 12 weeks’ pregnant. Ms Lowe was extremely surprised and upset by the news, responding that she did not know what effect her pregnancy would have on her continuing employment. Ms Lowe then called YourRecruit to complain about Ms Kimberley’s pregnancy and ask for a discount on the recruitment fee.
The role of Contracts Administrator was a reasonably demanding one, which was split 50/50 between telephone communications and using Calibre’s computer system to complete paperwork. During the course of Ms Kimberley’s employment Ms Lowe became concerned that Ms Kimberley’s performance was not of a high enough standard, believing that she spent too long on the telephone and that a number of emails that she had sent were not of a sufficient standard. In a meeting in September 2016 Ms Lowe therefore extended Ms Kimberley’s probation period by a further 3 months, to 20 December 2016 (in compliance with Ms Kimberley’s contract of employment). Further concerns were raised about Ms Kimberley’s performance post-September 2016.
On 20 December 2016 Ms Kimberley met Ms Lowe for the purposes of considering her probation period. Ms Lowe informed Ms Kimberley that her probation period would be extended for a second time due to ongoing performance concerns. This would have the effect that, once Ms Kimberley returned to work fro maternity leave, she would restart her probation period for the following three months. Ms Lowe also informed Ms Kimberley in this meeting that she thought YourRecruit was a ‘disgrace’ and that she was disappointed in her because she believed that Ms Kimberley had lied to her and no told her the truth about her pregnancy. Ms Lowe was annoyed and angry in this meeting as she felt that Ms Kimberley had misled her, and that the recruitment agency had been involved in this.
Ms Lowe subsequently sent a letter dated 19 December 2016 to YourRecruit complaining of the business’ conduct in relation to the recruitment of Ms Kimberley, with the underlying point being made that Calibre would not have recruited Ms Kimberley if it had know she was pregnant. YourRecruit responded to the letter on 12 January 2017 describing Calibre’s letter as ‘offensive and quite frankly libellous’.
In late December 2017 Ms Kimberley contacted ACAS and began to write a letter of grievance dated 29 December 2017. She completed this letter in January 2017 (after the birth of her son) and sent it at the end of the month, with Calibre having received this letter on 1 February 2017.
The decision of the Employment Tribunal
The Employment Tribunal upheld Ms Kimberley’s claim for pregnancy and maternity discrimination (section 18 Equality Act 2010) in respect of the following:
- That, in the meeting on 20 December 2016, Ms Lowe accused Ms Kimberley of: lying by failing to telling Calibre of her pregnancy once she knew she was pregnant; lying about her pregnancy by failing to disclose her pregnancy before accepting the offer of employment; telling team members about her pregnancy before telling Ms Lowe
- Extending Ms Kimberley’s probation period for a second time on 20 December 2016 – the Tribunal found that there were significant references made by Ms Lowe to the pregnancy issues, and that she placed emphasis on some of these issues in determining whether to extend Ms Kimberley’s probation period for a second time. The Tribunal therefore found that Ms Kimberley’s pregnancy was an “effective cause” of her probationary period being extended for a second time
The Employment Tribunal scheduled a remedy hearing, which was due to be held on 5 April 2018.
Our solicitors’ view on Ms C Kimberley v Calibre Building Services Ltd
Chris Hadrill, partner in the employment department at Redmans, commented on the case: “Employers, when making decisions such as whether to dismiss an employee or extend a probation period, should ensure that a person’s pregnancy is not a substantial factor in making that decision (even if there are other competing reasons for making such a decision). A decision which is tainted by discrimination can potentially lead to an expensive and time-consuming Employment Tribunal claim being brought, as in this case”
The judgment of the Employment Tribunal in Ms C Kimberley v Calibre Building Services Ltd can be found here.