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A pay rise refusal and impending maternity leave – a recipe for disaster!

The Equality Act 2010 prohibits pregnancy and maternity discrimination in the workplace.  This includes treating a woman unfavourably because of her pregnancy during the protected period, which starts when the pregnancy begins and ends at the end of the additional maternity leave period or (if earlier) when she returns to work, if she is entitled to maternity leave.

In this alert, we look at a case involving a HR advisor at a construction company who was refused a wage increase because she was about to go on maternity leave. Was she discriminated against?

Musguin v Breyer Group plc

Miss Musguin started working for Breyer Group Plc, in July 2017 as an HR Advisor.  Her pay was increased in 2018 to £30,000 for a 40-hour week.  She was on maternity leave with her first child between June 2019 and August 2020.  During this time, the HR Co-ordinator for Breyer Group, a more junior role than that held by Miss Musguin, also went on maternity leave. To cover this role, Breyer Group sought a fixed-term employee for the period of maternity leave on a salary of £27,000 per annum.  The successful candidate was in fact paid £28,000 per annum for the fixed-term position in accordance with market rates.

Miss Musguin found out about the salary for this fixed-term role and was unhappy that there was such a small difference between her salary and the more junior HR Co-ordinator role. She believed it to be deeply unfair and to undervalue her work and her experience. She discussed her upset with the new Head of HR, who valued her support and expertise and agreed to make a business case for a pay rise to be awarded to her. As part of this, he reviewed the HR department generally and discussed with Miss Musguin his ideas for the future, including whether she could take on extra responsibilities such as recruitment.

Shortly afterwards, the Head of HR attended a regular weekly HR meeting with some of the Directors of the business.  By this time, Miss Musguin had told the Head of HR that she was pregnant again, and she gave him permission to disclose this at the meeting. There were no notes produced for this meeting.

Following this meeting, Miss Musguin said that the Head of HR told her that he had requested her pay rise but it has been refused by the Finance Director because she was due to commence a period of maternity leave at Christmas, and that it was not feasible because she would only be in the business for another 4 months.  She expressed her unhappiness that a small pay rise of £2,000 had been refused and felt disillusioned by her employer.

To justify the pay rise, the Head of HR produced a revised business proposal which said a pay rise of £2,000 was available in return for Miss Musguin assuming additional responsibilities. There was no agreement as to what additional responsibilities these might be.

The next day,Miss Musguin sent an email to the Head of HR setting out her dissatisfaction with the pay difference between the roles.She was then informed that the pay rise had now been agreed.

Miss Musguin went off sick and did not return before she went on maternity leave. She displayed her continued upset of the “unfair pay differential” and raised a grievance during this time. She felt undervalued even with the £2,000 increase.  She consequently brought a claim for, amongst other things, pregnancy and maternity discrimination.

Decision

The tribunal accepted Miss Musguin’s evidence and found that the request for a pay rise was refused because sheplanned to go on maternity leave four months later. Evenif Miss Musguin was not entitled to a pay rise, the tribunal found that the refusal to exercise discretion in favour of giving a pay rise because of impending maternity leave is clearly unfavourable.  It found that this was an “act of overt discrimination”.

The tribunal also accepted Miss Musguin’s evidence in relation to the impact it had on her. She developed a migraine, was unable to sleep, distressed and angry and felt she was not worthy of a pay rise “simply because she was growing a human”.  The tribunal was however satisfied that this was a single act by the employer, was swiftly remedied and had little financial impact on Miss Musguin.  It commented that “refusing a pay rise because of a proposed period of maternity leave is, however, inevitably a very serious matter. The period of pregnancy and maternity is a time at which a female employee is particularly vulnerable and it is for that reason that the statutory protections exist”. Her pregnancy and impending maternity leave were as such tainted with mixed feelings due to the initial pay rise refusal.  The tribunal made an award for injury to feelings in the upper end of the lower bracket of the Vento guidelines in the sum of £9,000 plus interest.

Comment

This case is a further reminder of the importance of equality and diversity training in the workplace and of having suitable, properly implemented policies in place.  Despite being a one-off incident that was remedied, this was a costly mistake which could have been avoided.  Pay reviews should take women on maternity leave into account, otherwise the employer will be at risk of discrimination claims.

It is also an important reminder of the need to keep notes of meetings regarding such matters.  In this case, the tribunal heard differing versions of events but because there were no notes of what was discussed internally, it had regard to the likes of WhatsApp messages sent by Miss Musguin and ultimately preferred her evidence.

If you have any queries in relation to the content of this alert or would like to discuss any training requirements 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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