An Employment Tribunal has recently considered whether an employee was discriminated against for having her probationary period extended due to her pregnancy.
The case involved Ms Kimberley who worked as a Contracts Administrator and found out 5 days before commencing employment with the company that she was pregnant. She sought advice and understood that she was not required to tell the company of the pregnancy at that stage. Legitimate performance issues began to arise in Ms Kimberley’s work however, when she informed her line manager of her pregnancy, conversations were had about contraception, unplanned pregnancies and Ms Kimberley was later accused of lying about the pregnancy before she commenced employment.
Would this amount to discrimination if pregnancy was a substantial factor in the extension of the probationary period?
Kimberley v Calibre Building Services Ltd
Ms Kimberley was employed as a contracts administrator by Calibre. She was provided to Calibre as a candidate via a recruitment agency. Five days before her first day at work Ms Kimberley found out she was pregnant. She called the recruitment agency for advice on whether this would stop her starting employment with Calibre. The recruitment agency confirmed that the pregnancy did not prevent her from commencing employment. From this conversation, Ms Kimberley also understood that she was not required to tell Calibre of her pregnancy at that stage.
Ms Kimberley confided in colleagues that she was pregnant a couple weeks after starting employment. Soon after, Ms Kimberley met with her line manager to inform her of her pregnancy. At this stage, Ms Kimberley was 12 weeks pregnant. The line manager’s initial response was that she was ‘completely thrown’ and would have to take advice on what the implications were for Ms Kimberley’s future employment. A conversation about contraception and unplanned pregnancies was also had. After seeking advice, it was confirmed that Ms Kimberley would continue employment.
Ms Kimberley expressed that she wished to work up until her due date in February 2017 however, after consideration; she said she wished to bring her maternity leave forward to December 2016. Various performance issues then began to arise and Ms Kimberley’s line manager raised concerns via emails to Ms Kimberley detailing mistakes that had been made and ways that her performance needed to improve. Ms Kimberley was informed that her probationary period would be extended for a further 3 months.
During this second period of probation performance issues continued and Ms Kimberley was informed that her probationary period would be extended for a second time. However, prior to this discussion, it had been brought to the line manager’s attention that Ms Kimberley had shared the news about her pregnancy with other colleagues before sharing the news with her. The line manager accused Ms Kimberley of lying about her pregnancy (that she knew before accepting the position with Calibre) and called the recruitment agency a ‘disgrace’ claiming that Calibre should be offered a refund for the placement of Ms Kimberley. The line manager set out these issues in a letter to Ms Kimberley regarding her probationary period and also sent a letter to the recruitment agency which is described as ‘offensive’ and ‘libellous’ claiming that they had encouraged Ms Kimberley to lie about her pregnancy and the position was filled under ‘false pretences’.
The Employment Tribunal found that the underlying reason for the second extension of the probationary period was Ms Kimberley’s pregnancy. It accepted that the first extension was due to performance issues, however found that pregnancy was a substantial the second extension. In the email sent from the line manager to Ms Kimberley in relation to her second extsnsion and the content of the letters sent to the recruitment agency it was clear that the point being made was that Calibre would not have recruited Ms Kimberley had they known she was pregnant. The accusations of the line manager amounted to unfavourable treatment and there were significant references made to pregnancy matters during the meeting to discuss the extension that underlined this fact.
A woman is not obliged to disclose the fact that she is pregnant before accepting a job opportunity offered to her. If it is shown that pregnancy influenced the decision on whether or not to recruit or to continue to employ someone, this will amount to discrimination. Under the Equality Act 2010, a woman is discriminated against if in the protected period of pregnancy she is subjected to unfavourable treatment because of the pregnancy. This protected period begins when the pregnancy begins.
If you have questions relating to discrimination please call Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.