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Was a pregnant cleaner discriminated against after being called “pathetic”?

Employees are protected from discrimination arising from their pregnancy/maternity under the Equality Act 2010. This week’s case follows a cleaner, Ms Burns, who experienced numerous negative encounters with her colleagues during the months approaching her maternity leave. To what extent did these encounters amount to discrimination under the Act?
A Burns v Tralee Ltd & S Sohal

Ms Burns started working for Tralee Ltd as a cleaner in March 2019. In October 2019 Ms Burns informed her manager that she was pregnant. She took the next day off sick following a car accident and took a further 2 days off at the end of the month due to morning sickness. In November 2019 she took a further two days off with a pregnancy related migraine.

Shortly after the last absence Ms Burns was invited to a meeting with her manager. Ms Burns was told that she had “two weeks to improve [her] performance or that’s it”. She was placed on a development plan. Ms Burns stated that this “coincided with [her] first trimester and ongoing bouts of severe morning sickness and fatigue”.

In early December 2019 Ms Burns claimed that “there was a light-hearted conversation about [her] growing ‘bump’ with other staff.” Ms Burns claims that her manager “made a comment in front of all other staff that if she saw [Ms Burns] slowing down in the 11 weeks before [her] baby was due, she had the power to force [Ms Burns] to start [her] maternity leave”.

Ms Burns requested that a risk assessment be carried out in relation to her pregnancy. The report clarified that Ms Burns should refrain from moving beds and should avoid “standing for long periods as the pregnancy progresses” and to “sit down when necessary”. Senior staff were informed of the outcome of this risk assessment.

Following two further periods of pregnancy related illness, Ms Burns was called into another meeting with her manager. She was given a letter containing the dates of her absences. There was a statement that described the absences as not being “acceptable” and that they put “all other staff under extra pressure to cover shifts”. The letter requested improvement along with a threat of disciplinary action. r Ms Burns protested that the majority of the absences had been pregnancy related but was told that pregnancy is “not in itself an illness”. She was told that the pregnancy would not stop her manager from “getting rid” of her.

In January 2020, Ms Burns took a break whilst on shift as she was feeling lightheaded. When she tried to take another short break, she was challenged by colleagues. Her manager became involved and sent Ms Burns home early and called her “pathetic”. Ms Burns commenced a period of sickness absence due to stress.

Ms Burns submitted a grievance alleging pregnancy and maternity discrimination, which was not upheld.

Ms Burns remained absent until her maternity leave started in March 2020, at which point she issued proceedings for pregnancy/maternity discrimination. She resigned in December 2020 saying she had decided not to return after her maternity leave “due to the circumstances surrounding the pending tribunal”.

Decision

The Tribunal accepted that all the events contained within the claim took place during the protected period relevant for pregnancy/maternity discrimination claims. The questions for the Tribunal were whether the acts amounted to unfavourable treatment and whether the conduct was because of Mr Burns’ pregnancy or pregnancy related illnesses. The Tribunal first addressed Ms Burns being placed on a development plan in November 2019. They noted that performance issues were not just raised with Ms Burns but with another colleague also, who was not pregnant. For these reasons the Tribunal was satisfied that the introduction of a development plan was not as a result of Ms Burns being pregnant.
The Tribunal then focussed on the incident over the breaks in January 2020, finding that the most likely explanation for their conduct was that they had formed the view that Ms Burns was treating her pregnancy as an excuse not to pull her weight. For this reason, the Tribunal was satisfied that the comments were discriminatory on the grounds of Ms Burns’ pregnancy.
Finally, the Tribunal looked at the conduct of Ms Burns’ manager. The Tribunal were satisfied that, the comments that “pregnancy in itself is not an illness” and that she could still “get rid” of Ms Burns were both threatening and amounted to unfavourable treatment. They acted as strong evidence that Ms Burns’ manager had formed a negative impression since being informed of her pregnancy and the pregnancy was a significant reason for the treatment. The conduct was discriminatory. The letter sent was a further act of discrimination, as was the comment that Ms Burns was pathetic.

Finally, the Tribunal found that the grievance process was wholly inadequate and amounted to a further act of discrimination.
The Tribunal ordered Tralee Ltd to pay Ms Burns a total of £24,460.52 in compensation.

Comment

Employees are protected from discrimination relating to their pregnancy/maternity under the Equality Act 2010. This protects the employee from ‘unfavourable treatment’ during the ‘protected period’, with this period starting from the moment the employee’s pregnancy begins. An employee claiming pregnancy/maternity discrimination does not need to provide a comparator for the alleged discrimination, they only need to prove ‘unfavourable treatment’.

The case also serves as a further warning that employers need to be extra diligent with grievances alleging discrimination. A failure to do so can amount to a further act of discrimination.

Employers should provide suitable equality and diversity training across their workforce. This training should be renewed regularly, ideally annually, to best ensure their employees are complying with their legal requirements. Such training can also assist an employer in defending claims by saying it took all reasonable steps to prevent any discrimination from taking place.

If you have any queries arising from this case or need advice regarding claims against your business for discrimination or would like to discuss any other issue including providing training for your staff, please contact one of 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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