Was it discrimination to send a pregnant woman home from work during Covid-19 lockdown?
Prosser v Community Gateway Association Ltd (Case No. 2413672/2020)
From 24 June 2019, the Claimant was engaged by the Respondent under a zero-hours contract. On 13 March 2020, the Claimant informed her line manager that she was pregnant and, on 16 March 2020, her line manager sent her an email with a link to the Government's advice on COVID-19 and pregnancy, which classified pregnant workers as clinically vulnerable.
On 17 March 2020, the Claimant's line manager sent her home as she considered her to be clinically vulnerable. The precise wording that was used is not clear, but there is a possibility that the term "shielding" was incorrectly given as the reason for such decision. As a result, the Claimant was unable to attend her shifts in March and April and noticed she was not being paid for the same.
In May 2020, the Claimant asked to return to work and the Respondent conducted a specific risk assessment for her. It concluded that the Claimant could work during the day once perspex screens had been fitted between the desks. However, it also concluded that it wasn't safe for the Claimant to undertake lone working, for example, night shifts. Following the risk assessment, the Respondent sought to install various changes within the workplace to ensure it was safe for the Claimant. This caused further delay to her returning to work.
The Claimant subsequently raised a grievance, claiming that she had suffered pregnancy discrimination because (a) she had not been paid for the shifts she had been scheduled to work and (b) she had not yet been allowed to return to work. The Respondent responded to confirm that she could return to work and it was now time for her to provide her availability so that her shifts could be scheduled. In addition, the Respondent retrospectively paid the Claimant for her missed shifts that were scheduled for April, May, June and July. She eventually returned to work in August and was paid the average of her normal earnings, including any time for training, over that period. The Claimant was therefore not left out of pocket. This went beyond her contractual entitlement and her grievance was dismissed.
The Claimant subsequently brought a claim against her employers arguing, amongst other things, that sending her home in March, not allowing her to return to work until August, and the delay in payment of her salary amounted to direct pregnancy/maternity discrimination.
The Equality Act 2010 prohibits an employer from treating an employee unfavourably because she is pregnant.
What did the Employment Tribunal (ET) decide?
The ET rejected the Claimant's complaints. Specifically, it was held that the decision to send the Claimant home was not unfavourable treatment, but treatment which was appropriately informed through the requirements placed upon the Respondent as a result of the Government’s public health advice and regulations leading from the onset of the first COVID-19 lockdown.
The delay in paying the Claimant for shifts she would otherwise have worked was, on the face of it, unfavourable treatment. However, the ET did not find that this was related to the pregnancy, but due to a genuine mistake.
The ET went so far as to say that the Respondent appeared to do all it could to keep her and her baby safe through the COVID-19 outbreak and paid her generously beyond the terms of her contract.
What are the implications of this decision?
This appears to be the first judgment that addresses the issue of pregnancy discrimination during the pandemic. It is a welcomed decision for employers that may have taken the decision to send pregnant workers home where they felt unable to uphold their health and safety obligations.
A key factor in this decision was the approach the employer had taken. For instance, it had complied with its statutory obligation to complete specific risk assessments for the pregnant worker. It had also paid her more than she was contractually entitled to receive during her absence. As such, in the event that the employer had omitted to carry out a risk assessment when facilitating the Claimant's return to work, or failed to consider the Government guidance in making such decision, it may be that a different outcome would have been delivered by the ET.