Pregnant Employee Lawfully Sent Home During Pandemic

An employment tribunal (ET) has held that a pregnant woman was not discriminated against by her employer after being sent home during the coronavirus pandemic for health and safety reasons.

The Equality Act 2010 prohibits discrimination and victimisation relating to the protected characteristic of ‘pregnancy and maternity’.

Discrimination will occur under section 18 of the 2010 Act when an individual is treated unfavourably during the protected period because:

  • of her pregnancy
  • of an illness suffered as a result of her pregnancy

Unlawful discrimination will also occur where the employee is treated unfavourably because:

  • she is on compulsory maternity leave
  • she is taking, is seeking to take or has taken her ordinary or additional maternity leave

Discrimination under s18 has a key difference to direct discrimination as the treatment has to be ‘unfavourable’, rather than ‘less favourable’. As such, the individual only has to show a disadvantage because of their pregnancy or maternity and will not have to use a comparator. The Equality and Human Rights Commission Code of Practice on Employment advises it may be useful to identify a comparator and compare treatment with others to determine whether the unfavourable treatment was because of pregnancy or maternity, or whether it was due to some other reason.

The FACTS

The claimant worked for the respondent on a zero-hour contract at, on average, four shifts per month. On 13 March 2020, at the start of the coronavirus epidemic in England, she notified her employer that she was pregnant. She was directed to the Government website which classified her clinically vulnerable.

On 17 March 2020, after the claimant arrived for her shift, she was sent home as a measure to protect her from catching the virus. A risk assessment was conducted in May 2020 after she asked to return to work. The following were found:

  • the claimant could work only during the day
  • she could return to work when Perspex screens were fitted between desks – the desks were 1.8 metres apart rather than the 2 metres recommended at the time

The claimant was offered some shifts towards the end of May 2020 but because the changes recommended in risk assessment took longer than was expected to implement, she was not allowed to work those shifts.

The claimant later raised a grievance, outlining that she has faced pregnancy discrimination because she had not received pay for the shifts she was scheduled to work and because she was not permitted to return to work.

As a response to her grievance, the respondent asked the claimant to return to work. Before this, they carried out a second risk assessment and moved the desks she worked at 3 metres apart from the next. The respondent later paid the claimant for the shifts she would have worked if not for her being told to stay at home, as well as the training days she would have attended. The claimant later brought a claim to the ET arguing, most importantly, that sending her home and not paying her until she raised a grievance was direct pregnancy and maternity discrimination.

The Employment Tribunal’s decision

The ET found that there had been no discrimination on the part of the respondent. Recognising that the respondent reacted to the coronavirus situation and government guidance, the ET dismissed the claim.

On the issue of not bringing her back until she raised a grievance, the ET noted that it was reasonable for the respondent to wait until there were proper Covid-secure measures in place before bringing her back to work.

The ET stated that they “do not find that this was an act of unfavourable treatment because of the claimant’s pregnancy but a positive step being taken to protect her in complying with legislation designed to provide her with protection.”

The ET, turning to the issue of her pay, noted that this appeared to be unfavourable treatment but went on to say that the respondent did not withhold her pay due to her pregnancy but was instead an error that they later rectified.

Note for employers

It is often the case that organisations feel they are ‘walking on eggshells’ when dealing with pregnancy and maternity issues, and this case highlights that businesses can be rest assured that they have not discriminated against their pregnant employees during the pandemic. However, this will depend on the facts.

It is crucial that organisations follow government guidance and take the correct steps to determine how safe it is for an employee to be at work during the pandemic. It is essential to make sure that those who are vulnerable, including pregnant women, are considered in risk assessments. A competent person and organisations must also carry out risk assessments and ensure that their recommendations are put into place.

Importantly, organisations should always attempt to find alternative work for pregnant women, both in a pandemic and under ‘normal’ circumstances, and the same rules on suspensions should be followed, e.g. suspension must be on full pay. This applies to zero-hour works as it does to employees.

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