As COVID-19 related cases continue to trickle through the Tribunal system, it has recently been held that an employee who claimed pregnancy-related discrimination was unsuccessful in her claim as in fact the employer had done all it could to keep her and her baby safe through the COVID-19 outbreak.
Facts
The Claimant was a zero-hour worker, who worked around four shifts on average per month, which were routinely offered and accepted by her. The Claimant also worked elsewhere during her time with the Respondent, albeit she resigned from her first alternative employment due to considering the work too dangerous in light of her pregnancy.
The Claimant announced her pregnancy to her line manager on or around 13 March 2020. A few days later, the Claimant was sent home on the basis that the Government guidance suggested the Claimant fell into the clinically vulnerable category, as a result of her pregnancy.
On 15 April 2020, the Claimant noticed that she had not been paid. Once the Claimant brought this missing payment to the Respondent’s attention, there was no dispute over this missing payment and the oversight was rectified.
In May 2020, the Claimant requested to return to work. However, her return was delayed some three months following a number of risk assessments, due to the implementation of social distancing measures and difficulties moving IT equipment. The Respondent wanted to ensure that her desk was far enough apart from the others and that Perspex screens were installed in the office. Attempts were made to facilitate this sooner, however this was not possible due to the difficulties sourcing the equipment at the time.
Upon her return to work in or around August 2020, the Claimant was advised that she would be able to do day and afternoon shifts in the office, but could not do night shifts, as this would involve the Claimant working alone and travelling to tenants’ homes, which the employer did not consider safe for her. This meant that the Claimant would only be eligible for two out of every six shifts.
In any event, the Claimant agreed with the Tribunal that she had not suffered any financial loss as a result of the alleged discrimination and that she was later working three days per week in alternative work, having resigned from a previous position, which she considered inappropriate.
Findings
The Tribunal's findings were as follows:
- The decision to remove the Claimant from the workplace in line with the government’s guidance and health advice was not discriminatory and in fact, the Respondent went above and beyond their contractual obligations by paying her for the average shifts she worked, as well as training days that she was paid for as well.
- The Respondent had quite clearly made a mistake in failing to pay her in April 2020 and rectified this as soon as it was brought to their attention. On the face of it, the Tribunal found the late payment to be unfavourable treatment, however this was not held to be by reason of the Claimant’s pregnancy.
- The Claimant was in practice eligible for two out of every six shifts, albeit she considered this to be one in every six and the Tribunal held that this was in fact to protect the Claimant and her unborn baby and was not therefore, discriminatory.
- In regard to returning to work, the Tribunal found that the Respondent had made attempts to obtain Perspex screens as soon as they could and that they were justified in delaying her return on the basis of securing social distancing measures in the workplace. The Tribunal noted that this was a positive step, taken to protect her and comply with health and safety regulations.
What does this mean for employers?
Whilst this decision is not binding, the Tribunal considered the Respondent’s actions to be in line with the public health advice that was available to employers at the time and relevant COVID-19 regulations that would apply.
This case can be contrasted to the cases that we have previously reported on here, since this was a situation whereby the Claimant argued not allowing her to return to work was discriminatory, as opposed to the Claimant not wanting to return to work on grounds of health and safety concerns.
The Respondent on this occasion demonstrated that even where there they may have inadvertently treated the Claimant unfavourably, this was due to reasons entirely unrelated to her pregnancy. As such, there could be no discrimination.
The Respondent’s generosity did not go unnoticed by the Tribunal and their motivations were considered sincere, which may in this case have been a significant factor in why the decision went in the employer’s favour.
Support and advice
Our team of employment law experts have vast experience in supporting and advising employers with their people issues. If your organisation is in need of some Employment/HR guidance and support, please contact a member of our Employment Team who can assist.
If you would like to know more about managing staff concerns about COVID-safe working and other current employment law topics, please join us for our Employment Law Update webinar on Post Pandemic Working on Tuesday 21 September. Click here to find out more and to book.
This contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
