Workplace pregnancy discrimination – 10 common examples of Employment Tribunal claims
In this article Chris Hadrill, a specialist employment solicitor at Redmans, analyses 10 common examples of workplace pregnancy discrimination that commonly come before Employment Tribunals:
Requiring employees not to be pregnant to do a particular job
Employers cannot require an employee not to be pregnant in order to be able to do a job: in Mahlburg v Land Mecklenburg-Vorpommern [2000] IRLR 276, the European Court of Justice held that requiring an employee not to be pregnant in order to undertake a particular job (due to health and safety requirements) was discriminatory – the ECJ stated that the reason why the woman was not offered the job was not just health and safety, but because of her pregnancy.
If your employer informs you that you can’t do a job due to health and safety reasons because you are pregnant then this could be a discriminatory act on your employer’s part.
Refusal to recruit employees because they are pregnant
An applicant for a job does not have to inform their potential employer that they are pregnant during the recruitment process. Employers also have an obligation not to discriminate against applicants because the applicant is pregnant (or the employer believes them to be pregnant); employers should generally avoid references to pregnancy or maternity when drafting job advertisements, job descriptions or person specifications.
The ACAS Guide to Pregnancy and Maternity Discrimination (“the ACAS Guide”) outlines that if an employer is aware of an applicant’s pregnancy (or believes she is pregnant) or is informed of such then the decision-maker should not be influenced by that knowledge or belief.
Denying pregnant employee promotion opportunities
An employer must not discriminate against pregnant employees in relation to opportunities for promotion in the workplace. For example, it would be discriminatory to fail to tell a pregnant employee about suitable job vacancies because she is pregnant, turn down an application from a pregnant employee because she is pregnant, or discourage her from applying for a promotion because she is pregnant.
Dismissing pregnant employees in compliance with health and safety policies
Employers have a duty to ensure the health and safety of all workers in the workplace (not just pregnant workers) but employers must take care to apply health and safety policies fairly and appropriate, taking into account all the circumstances – a failure to do so could constitute pregnancy discrimination.
In the Employment Tribunal case of McArdle v Asco Joucomatic Ltd the Tribunal held that a pregnant employee had been discriminated against when her employer terminated her agency contract because it was worried about her ingesting chemical compounds – the Tribunal found that this constituted discrimination because the employer failed to take into account all the circumstances, provide her with a risk assessment, or consult with her about health and safety before terminating the agency agreement.
Penalising employees because they are off work due to a pregnancy-related illness
Pregnancy-related illnesses (including, for example, morning sickness and miscarriages) could result in pregnancy discrimination if:
- The pregnant employee is subjected to any form of detriment because of performance issues that arise as a result of pregnancy-related illnesses; and.or
- The employer takes pregnancy-related sickness absence into account when dismissing an employee who has reached a certain ‘threshold’ of sickness absence
In the case of Brown v Rentokil Ltd (European Court of Justice) the ECJ held that where a female employee is dismissed from employment due to pregnancy-related illnesses this will constitute pregnancy discrimination.
Making pregnant employees redundant or dismissing them
Employers should not dismiss employees because they are pregnant or because of a pregnancy-related illness – to do so would not only constitute discrimination but also automatic unfair dismissal.
In the Employment Tribunal case of Deol v Sonic Laboratories Limited the Employment Tribunal held that the dismissal of a pregnant worker whilst she was away on leave constituted pregnancy discrimination.
In the Employment Tribunal case of Lewandowski v Bradford District Apprenticeship Training Academy the Employment Tribunal held that an employee had been dismissed because she was pregnant, not because of any genuine redundancy situation.
Pregnant employees are not exempt from being selected from redundancy in a genuine redundancy situation but employers must take care to avoid a situation where the employee is not consulted with fully or offered suitable alternative employment; they must also avoid creating ‘sham’ redundancy situations in order to dismiss employees.
Disciplining or dismissing pregnant employees because of their performance
Employers are, of course, able to raise workplace performance issues with pregnant employees, following their normal procedures. However, the ACAS Guide states that the following factors need to be taken into account in evaluating a pregnant employee’s performance:
- Health and safety risks posed to the pregnant employee (which ties in with the point below)
- Pregnancy may affect different employees in different ways
Employers should make allowances if a pregnant employee’s performance decreases because of symptoms relating to their pregnancy (such as, for example, emotional volatility or tiredness) or pregnancy-related illnesses.
Failure to undertake risk assessments and heath and safety checks
All employers have an obligation under the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) /(“the Regulations”) to assess the risks of a workplace and make adjustments to working conditions or hours of work to ensure that any significant risk to new or expectant mothers is avoided (Regulation 16 of the Regulations). The risk assessment must be “suitable” and “sufficient” and must investigate the risks that the employee is exposed to as a result of their employment (Regulation 3).
In 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 of conduct (including a failure to undertake a risk assessment) amounted to unlawful pregnancy and maternity discrimination.
In the case of Hardman v. Mallon (t/a Orchard Lodge Nursing Home) the Employment Appeal Tribunal upheld a Tribunal’s findings that the failure to carry out a risk assessment for a pregnancy care assistant constituted sex discrimination.
Penalising employees because they have complained of pregnancy discrimination
You have the right to complain to your employer (whether formally or informally) if you believe that you are being discriminated against (whether because you are pregnant or otherwise). If an employee is subjected to any form of detriment because she has complained of pregnancy discrimination then this may constitute ‘victimisation’ (see this guide for an explanation of the law relating to victimsiation).
In the Employment Tribunal case of Jarvis v Davies and Davies Estate Agents Limited the Employment Tribunal held that a pregnant employee had been victimised because she had made a complaint that she was being discriminated against
Make derogatory or upsetting comments relating to an employee’s pregnancy
A colleague’s inappropriate comments to a pregnant employee can lead to an Employment Tribunal claim being brought.
In Wilson v Provincial Care Services Agency and others NIIT/00431/10 a Tribunal in Northern Ireland held that a worker had been subjected to sex-related harassment when a former employee was told (in relation to the decision not to give her a reference): “this is what happens when you have babies”.
In the Employment Tribunal case of Ginger v Department for Work and Pensions 3401940/2015 the Tribunal held that a colleague’s comments about IVF treatment (amongst other conduct) constituted discriminatory treatment.