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Things not to say to a pregnant employee…

There are specific rules around employees returning to work after maternity leave, whether that is at the end of the maternity leave period or where the employee gives notice to return early.  But what happens where an employer wants to know what a pregnant employee’s future plans are?

This issue arose in the recent tribunal case of Duffy v Barnet, Enfield & Haringey Mental Health NHS Trust.  Was Ms Duffy discriminated against for being asked about her future plans when pregnant, and as a result of comments made relating to her pregnancy during a restructure exercise?

Duffy v Barnet, Enfield & Haringey Mental Health NHS Trust

Ms Duffy had been employed by the Trust as a PA since 2008.  During the Summer of 2019, she told her manager confidentially that she was in the early stages of a high-risk pregnancy.  She was awaiting a 3-month scan, after which she would know more about what was likely to happen.  Around the same time, her colleagues also found out about her pregnancy and it became widely known in the workplace.

In July 2019, a restructure was announced which affected Ms Duffy and the PA function.  Ms Duffy was told that the process would entail “job matching” and an interview.  Ms Duffy’s PA colleague, Ms Cleasby, was upset because she thought it was unfair that Ms Duffy was effectively being appointed to a higher band without having to go through a formal process.  She did not keep her opinions to herself and made various comments to Ms Duffy and her colleagues, with Ms Duffy commenting that such comments were made at a time when she was anxious about her high-risk pregnancy.

In particular, Ms Cleasby asked Ms Duffy “have you told Jackie [a manager] that you won’t be coming back after maternity?”.  She also remarked that she was “in charge of the forms” for the new role despite not being a decision maker and made other comments to Ms Duffy, such as “you are naïve to think you are getting a band 5”, “you planned your pregnancy well, “don’t be too sure of yourself; you have nothing in writing” and “don’t count your blessings”.  Separately, remarks made by her were also reported back to Ms Duffy by colleagues.

In September, Ms Duffy attended a meeting, believing this to be the planned informal interview.  However, she was told that a formal change process would be followed instead and if she failed the interview she might be redeployed. Within this meeting Mr Beaton, a manager, made comments toward Ms Duffy about her “future plans” whilst nodding toward her stomach. She took the following day off sick due to the stress of the meeting and was told upon returning words to the effect “she had better not think she’s taking sick for yesterday because there’s nothing wrong with her”.

Ms Duffy was subsequently advised of the new structure and that she was at risk of redundancy. She attended an interview for the band 5 post and was successful, but her pay was set at a lower level than she had anticipated.

Ms Duffy brought claims against the Trust for direct sex discrimination, pregnancy and maternity discrimination, harassment and unlawful deductions from wages.

Decision

The tribunal found that the comments “have you told Jackie that you won’t be coming back after maternity?” and “you planned your pregnancy well” expressly referred to Ms Duffy being pregnant. Equally Mr Beaton, who asked Ms Duffy about her future plans and nodded towards her stomach, knew of her pregnancy and was referring to it.  Ms Cleasby’s other comments about the restructure were not related to her pregnancy, and neither were the comments around her sickness absence or the decision about her pay.

Therefore, the unwanted conduct insofar as they related to sex (including pregnancy) were those two comments followed by Mr Beatons “future plans” reference and nodding toward her stomach.  The intention behind the comments was motivated by Ms Cleasby being upset about what she thought was unfair treatment and was more a case of “letting off steam”.  Ms Duffy said that she was unhappy with the words of Ms Cleasby, which she believed were “unnecessary”, and also that she thought that what Mr Beaton had said was “inappropriate”. The tribunal found that the Claimant’s reaction to the unwanted behaviour was relatively modest, and was not enough to amount to harassment under the Equality Act 2010.

However, the comments and actions were made were based on a stereotypical assumption about new mothers not returning to work.  The comment that Ms Duffy had planned her pregnancy well involved an inference that she was motivated by a desire to obtain a workplace advantage, which the tribunal found was a most unpleasant comment to aim at Ms Duffy in these circumstances with a high-risk pregnancy. It further commented that Mr Beaton made a “clumsy enquiry” and Ms Duffy was right to think it was inappropriate. The obligation on her to inform the Trust about her intentions was a long way off and he should not have referred to it at all.  All 3 of these acts were therefore unfavourable treatment because Ms Duffy was pregnant and were done during the protected period under the Equality Act 2010 for these purposes.  They therefore amounted to pregnancy and maternity discrimination.  The tribunal said any injury to feelings awards would be in the lower band of between £900 to £9,100.  Since they amounted to pregnancy discrimination they could not also be sex discrimination, so the claims of sex discrimination, harassment and unlawful deductions failed.

Comment

Employees are protected from pregnancy and maternity discrimination and have certain rights as a matter of law, which should be adhered to.  Managers should know how to deal with these situations and should not put pressure on colleagues to discuss their intentions for the future.

This case highlights the need to ensure that all staff, particularly managers, are trained in how to manage staff who are pregnant or who are on maternity leave.  Discrimination and harassment claims can be expensive, and in this case, a “clumsy comment” which the tribunal acknowledged may not have been made with any ill intent, fell foul of the Equality Act 2010.  Equality and diversity training should be regularly refreshed in all areas and staff should be aware of what is an is not acceptable, and the repercussions of discriminating against their colleagues in any form. Unconscious bias should also be addressed in any training – assumptions were made in this case which contributed to the findings of the tribunal.

If you have any queries regarding this update, please contact our employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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