Pregnancy discrimination in the workplace: Burns V Tralee Ltd
In the case of Burns v Tralee Ltd, an Employment Tribunal was asked to determine whether the claimant had experienced pregnancy discrimination in the workplace by her employer. In a judgment that reads as a salutary lesson for employers in how not to treat pregnant women, the Employment Tribunal found in the claimant’s favour.
The Claimant worked for Tralee as a cleaner in a care home from March 2019. About 7 months after she started work there, she told her manager that she was pregnant. Up to that point, she had had a good working relationship with her colleagues, and good feedback from her manager. She took a number of days off sick between October and December 2019, mostly for pregnancy-related reasons such as morning sickness.
In November 2019, the claimant was put on a development plan, and told by the manager she had “two weeks to improve or that’s it”, which the claimant took as a threat of dismissal if she did not improve. Later in November 2019, two senior carers confronted the claimant ten minutes before her shift ended. They told her to clean and vacuum two rooms that she had already cleaned earlier that day. The claimant was accused of lying when she told them she had already cleaned the rooms. The claimant had to carry the vacuum cleaner down some steps for a second time to re-clean the rooms, which, given her pregnancy, she felt was “unreasonably physically demanding”.
The manager conducted a risk assessment without discussion with the claimant. This was later amended to add provision for the claimant to take short breaks when needed, so she could sit down briefly to rest. On 31 December 2019, the manager handed the claimant a letter listing her days off sick and nothing her that she “wanted to see an improvement in her sickness. If not, this may result in disciplinary action”. On 8 of the 10 days listed, the reason for the claimant’s absence had been pregnancy-related.
On 1 January 2020, the claimant was accused, by the same senior carers mentioned above, of taking a break in excess of her entitlement under her contract and the risk assessment. After the seniors’ carers called the manager, the claimant was told to go home early. She did not return to work, taking time off sick due to stress, and raised a grievance on 2 January 2020. Her grievance was not upheld. The grievance process was heavily criticised by the Tribunal. For instance, the Second Respondent – a director of Tralee – was held to have treated it as more of a disciplinary. He also opened the grievance meeting by saying “this meeting is in respect to the grievance you have raised and to go through how I came to the decision after investigating the whole matter,” thus making abundantly clear that he had already made a decision without any investigation or even discussion with the claimant.
The claimant remained signed off sick and went on maternity leave earlier than she had planned. She filed her claim and ultimately resigned before the hearing, saying she did so due to the pregnancy discrimination in the workplace claim and impending tribunal hearing.
The Tribunal’s decision
Unsurprisingly, perhaps, the Employment Tribunal found it fairly straightforward to decide that the claimant had been discriminated against because of her pregnancy/maternity. It also found that the claimant had been victimised because of raising her grievance. She was awarded loss of earnings of the difference between what she would have earned had she stayed at work until she had planned to start maternity leave and then returned to work at the end of the period covered by statutory maternity pay.
In addition, the claimant was awarded some £17,550 in respect of injury to feelings, which falls in the middle of the middle Vento band for such awards. The Vento bands are used as a measure of the award appropriate to the scale of treatment to which a claimant was subjected – the more serious the impact, the higher the award. The award made in this case reflects the significant impact on the claimant of the employer’s treatment of her, both as to the incidents at work, and the rejection of her complaints “without any proper investigation or consideration”. The injury to feelings award far exceeded the award for her financial losses.
This case is a reminder that on the one hand it’s not hard to treat pregnant employees with basic fairness, and on the other that it’s easy for an employer to get it expensively wrong.
What we are not told, though, is how stressful the claimant found having to go through with a claim at the same time as being heavily pregnant and dealing with a new-born. The short time limits for Employment Tribunal claims (as well as the costs and likely delays in getting to a final hearing) are a strong dissuasive factor for women suffering maternity and pregnancy discrimination in the workplace.
The more nefarious employers will take advantage of this – and the perceived lower risk of facing a claim from pregnant women and new mothers. We are very experienced in dealing with maternity and pregnancy discrimination in the workplace and will always look to get the best result with as little delay and stress as possible.
This blog was written by Clare Chappell, Senior Solicitor at didlaw.