This article first appeared in Employment Law Journal in November 2021
Efforts made to reach a compromise position and to consider individual circumstances will help employers demonstrate that they have acted proportionately and will help to justify the chosen work pattern.
Partner and General Counsel Beth Hale and Naomi Latham explore six cases which highlight the potential pitfalls for employers when managing workers who are pregnant or who have returned from maternity leave.
As the UK had to get to grips with Covid-19, it quickly became clear that the pandemic was having a significant impact on working mothers and this shone a light on existing issues relating to their rights that had previously been overlooked. In this article, we will take a look at recent case law highlighting the scope of employees’ rights during pregnancy and maternity leave, as well as when they return from maternity leave, and key lessons for employers to learn.
What protections are available?
Workers may bring claims relating to family and childcare issues on the basis of pregnancy and maternity discrimination and/or sex discrimination under the Equality Act 2010.
The Act provides that it is unlawful for an employer to do the following:
Discriminate directly by treating a job applicant or employee less favourably than others
Direct discrimination occurs where, because of a protected characteristic, A treats B less favourably than A treats or would treat others (s13(1) of the Equality Act).
To establish direct discrimination, the individual must show that they have been treated less favourably in some way than the employer has treated a real comparator, or would treat a hypothetical comparator.
Discriminate indirectly by applying a PCP
Under s19 of the Act, indirect discrimination occurs where:
- A applies a provision, criterion or practice (PCP) to B;
- A also applies (or would apply) that PCP to people not of the same protected characteristic as B;
- the PCP puts or would put people of B’s protected characteristic at a particular disadvantage compared to others;
- the PCP puts or would put B at that disadvantage; and
- A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
An example of indirect sex discrimination would include a requirement for all employees to work specific hours, which a particular female employee could not accommodate due to childcare responsibilities. In such a case, as set out below, the affected employee would not need to prove that women are more likely to be affected than men due to the recognised ‘childcare disparity’.
There will, however, be no indirect discrimination if the employer can objectively justify the PCP as ‘a proportionate means of achieving a legitimate aim’. A desire for reasonable business and economic efficiency may be a legitimate aim but the tribunals have been clear that a wish to save money, on its own, is not a legitimate aim capable of justifying discrimination.
Dobson v North Cumbria Integrated Care NHS Foundation Trust : childcare disparity
Mrs Dobson was dismissed from her employment as a community nurse with the North Cumbria Integrated Care NHS Foundation Trust in 2017. During her employment, Mrs Dobson balanced working 15 hours per week over two fixed days with caring for her three children, two of whom are disabled.
In 2016, the trust reviewed all existing flexible working arrangements but Mrs Dobson was unable to agree to changes to her work pattern, due to her childcare commitments. As a result, she was dismissed.
Mrs Dobson brought a claim for unfair dismissal and indirect sex discrimination. She believed that, as a woman, she was more likely to have childcare responsibilities than male colleagues. The trust’s new requirement for nurses to work flexibly, including at weekends, was therefore a PCP which put her at a disadvantage due to her sex.
The tribunal dismissed Mrs Dobson’s claims. It found that other employees in her team, both male and female, could meet the trust’s requirements and there was no evidence that women were disadvantaged due to the change in working hours.
Mrs Dobson appealed and the Employment Appeal Tribunal (EAT) found that the so-called childcare disparity which she experienced is a matter of judicial notice. In other words, it is well established that women, due to childcare responsibilities, are less likely to be able to accommodate certain working patterns than men and the courts and tribunals should accept this fact without asking for evidence.
The EAT noted that as many societal norms and expectations are changing over time, what may have once been apt for judicial notice may no longer be relevant. However, it found that this is not the case for the childcare disparity. While men may be taking on more childcare responsibilities than they have in the past, the position is still far from equal.
However, given that the pandemic has accelerated changes in working patterns and may have ‘de-gendered’ atypical working, we might reach a point in the future when tribunals no longer take judicial notice of the childcare disparity for women.
Key considerations for employers
- The fact that tribunals must take judicial notice of the childcare disparity (for as long as it persists) helps women bringing indirect sex discrimination claims connected to working patterns. It is worth remembering that this does not inevitably mean that group disadvantage will be present – it will always depend on the particular rule or practice in issue and will be decided on a case-by-case basis.
- Employers should try to avoid imposing onerous working patterns on women with childcare responsibilities without taking account of individual circumstances and considering the needs of the particular job.
- Employers should try to be as flexible as possible and open a dialogue with the employee to identify a pattern that works for both parties.
- Efforts made to reach a compromise position and to consider individual circumstances will help employers demonstrate that they have acted proportionately and will help to justify the chosen pattern.
Daly v BA CityFlyer Ltd : requests to alter unpredictable work rotas
Mrs Daly was an in-flight business manager for short-haul service BA CityFlyer (BA) and in June 2017 put in a request for flexible working following the birth of her first child. She wished to reduce her working hours by 25% and have set days off during the week, preferably two at a time. She was willing to be more flexible in the summer months as her husband was a teacher and would be able to take on childcare. Mrs Daly said that returning to work full time would be challenging for her since she could not find suitable childcare arrangements that coincided with her unpredictable work rota.
In August 2017, Mrs Daly received a letter from BA rejecting her flexible working request. This stated that the company would not be able to reorganise the work among other team members and that granting her request would have a detrimental effect on the quality of the service and performance. Mrs Daly resigned from BA in May 2018.
At the tribunal, Mrs Daly claimed that BA was generally reluctant to grant flexible working requests, with the majority of cabin crew who took maternity leave either not returning to their roles or leaving shortly after. She added that no flexible working requests had ever been granted for in-flight business managers. There was little evidence that BA had considered alternative proposals that might have given Mrs Daly more stability, nor did it ask her colleagues about the impact her request might have on them.
The tribunal considered whether the requirement for in-flight business managers to work full time and the lack of fixed days put women at a particular disadvantage when compared to men, based on the childcare disparity. It was held that these requirements did discriminate against women and specifically against Mrs Daly. She was awarded compensation of more than £38,000 for unlawful discrimination, injury to feelings, loss of earnings and pension and interest.
Key considerations for employers
When an employer is unsure about the potential impact of a flexible working arrangement, it is preferable to agree a trial period rather than refusing outright.
Before rejecting a flexible working request, employers should always consider whether there is a compromise position between the proposed arrangements and an outright refusal. Open dialogue is key.
Thompson v Scancrown Ltd : responding to flexible working requests
Mrs Thompson was a sales manager with Manor estate agents, which had around ten employees in total. Following her maternity leave, she returned to work and made a flexible working request to work four days a week, with a fixed 5pm finish so she could collect her daughter from nursery. The company rejected the request, stating that it could not afford for Mrs Thompson to work reduced hours.
Mrs Thompson resigned and filed claims for unfair dismissal, unlawful deduction of wages, pregnancy and maternity discrimination, harassment related to sex and indirect sex discrimination in respect of the flexible working request. All of the claims failed, except for the indirect discrimination one. She was able to demonstrate that the imbalance of childcare responsibilities remains and that the requirement to work full time put women in her position at a particular disadvantage, and that she too personally suffered this disadvantage.
In this instance, Manor failed to show that requiring a sales manager to work full time was a proportionate means of achieving a legitimate aim. The tribunal found that the company could effectively cover the periods when Mrs Thompson would not be working. In addition, the cost of covering these periods would be simple to recover as she had accepted that her pay and commission would be reduced pro rata.
Mrs Thompson was awarded just over £180,000 for indirect discrimination following the rejection of her flexible working request. This largely comprised of loss of earnings (past and future), pension contributions, injury to feelings and interest.
Key considerations for employers
Employers should not hide behind the statutory reasons for which flexible working requests can be rejected. They should properly consider each request on its particular merits.
If the requested working pattern is not viable, the employer should give clear written reasons.
As above, employers should always consider a compromise position rather than rejecting applications outright.
Prosser v Community Gateway Association Ltd : health and safety suspension
Ms Prosser was a clinically vulnerable, pregnant, zero-hours worker. Her employer, a housing association, sent her home on 17 March 2020 during Covid-19 and did not allow her to return until it had put health and safety measures in place.
Following a risk assessment, the employer decided it would be safe for Ms Prosser to return to work once it had fitted Perspex screens between desks. However, a delay in procuring the screens meant that she remained at home until August 2020.
Ms Prosser claimed maternity discrimination on the grounds that her five-month exclusion from the workplace was an act of unfavourable treatment which arose because of her pregnancy. The tribunal disagreed: the employer had followed public health guidance and recorded the rationale for its decision in a formal risk assessment which was aimed at protecting Ms Prosser and her baby. The tribunal also commended the employer for paying Ms Prosser beyond her contractual entitlement during her absence from the workplace.
Key considerations for employers
Employers need to consider individual circumstances carefully and conduct a proper risk assessment before taking action in relation to pregnant employees on health and safety grounds.
Shipp v City Sprint UK Ltd : unwelcome ‘banter’
Mrs Shipp, a marketing director, received several inappropriate comments after she announced her pregnancy during a period of financial difficulty for her employer.
Comments included asking when she stopped using contraception and whether her pregnancy was planned. Her employer also asked how she thought her pregnancy would affect her long-term career prospects. A director commented, ‘when you have to leave that little one at nursery, you won’t want to come back’ and allegedly suggested that colleagues bet on how much weight Mrs Shipp would put on during her pregnancy.
Mrs Shipp found those comments offensive and humiliating but decided not to make a formal complaint because there had already been some reference to the impact of her pregnancy on her career. However, she did raise it informally with two senior female colleagues, one being the head of HR. While she was on maternity leave, the company carried out a redundancy process during which it told Mrs Shipp there was no role for her to return to.
The tribunal took the comments made and deficiencies in the redundancy process into consideration and concluded that her dismissal was unfair and discriminatory on grounds of sex and pregnancy and maternity. The employer was ordered to pay £25,000 plus interest in compensation for her injury to feelings.
Key considerations for employers
- Intrusive comments about a worker’s pregnancy – or other protected characteristics – should be avoided. Employers should have an anti- discrimination and harassment policy which states that such behaviour will not be tolerated.
- All workers should receive regular robust equality and diversity training to ensure they understand policies and reporting mechanisms.
- Managers should receive specific training on handling workers’ life events with sensitivity.
- Employers must afford the same opportunities to all employees irrespective of whether they are on maternity leave. Any condition applied to their employment must not place them at a disadvantage because of their sex or because of their absence from the workplace.
Kinlay v Bronte Film and Television : occupational requirement
In rare cases, an employer might be able to prove that a worker or job applicant needs a certain protected characteristic to do a particular job. This is what is known as a genuine occupational requirement (GOR). For there to be a GOR, both of the following must apply:
- the protected characteristic must be essential for and relate to the main tasks of the role in question; and
- the employer must be able to prove that it has a good business reason for the requirement and that its actions were proportionate.
Ms Kinlay was an actress who appeared in a detective series produced by Bronte in 2017. Production was due to begin on 16 September 2019 on a second series but Ms Kinlay informed Bronte on or around 15 July 2019 that she was 12 weeks pregnant. Bronte then entered into a contract with another actress to play her role.
Ms Kinlay argued that Bronte had treated her unfavourably because of her pregnancy. Bronte argued that the GOR exception under Sch 9 of the Equality Act applied. The GOR, it said, was that the actor performing the role could not be visibly pregnant. Ms Kinlay agreed that her character could not be visibly pregnant but argued that this was not equivalent to a GOR as there were a number of ways that her pregnancy could be concealed.
The tribunal upheld Ms Kinlay’s claim. It considered that it would have been possible to conceal her pregnancy and concluded that Bronte had not shown that the GOR was a proportionate means of achieving a legitimate aim.
It is important to note that it remains a moot point whether a GOR not to appear visibly pregnant would be protected under the Equality Act. The Act does specifically provide for some instances where the GOR is that someone should not have a particular protected characteristic. However, there is no express mention of either pregnancy or maternity in relation to this exception.
Key considerations for employers
- Where an employer seeks to rely on a GOR, it must be able to show that it is a proportionate means of achieving a legitimate aim. It should document the fact that it has assessed all alternative options and be mindful that the burden will be on it to show why any less discriminatory methods were not feasible.
- GORs are, in practice, difficult to rely upon and will need to be dealt with extremely carefully.
The past two years have seen attitudes to the balance between family and work life change beyond all recognition, but issues around maternity and sex discrimination in the workplace have certainly not disappeared. The government has recently published its consultation on enabling flexible working requests from day one in all workplaces. This is a positive move towards normalising flexible working arrangements but there remains a long way to go. Transparency and open discussions with employees are vital, as is embracing new and different ways of working where possible, while meeting the needs of the particular business.
If you have any questions regarding the issues discussed in this article, please contact Partner and General Counsel Beth Hale and Associate Naomi Latham, both of whom specialise in employment and partnership law for senior executives, multinational employers, partnerships and partners.