Law at Work: Keeping the 'event' happy

THE STORY OF the woman who received a pregnancy congratulations card from her employer with her P45 inside may be just an apocryphal tale to illustrate how insensitively some bosses react when a ‘happy event’ is announced.

But managers contemplating dismissal or less favourable treatment for pregnant employees should take note that, in many recent Employment Tribunal cases involving pregnancy, the employers have lost and ended up paying large sums in compensation.

Jane Anstey began working for Advantage Healthcare Group (AHG) as a recruitment consultant. A month before a review meeting of her three-month probationary period was scheduled she informed the company that she was pregnant. A week later Anstey was called to a meeting with her regional manager, who told her that her performance was unacceptable and that her employment would not be confirmed at the end of her probationary period. She was dismissed that day with one week’s pay in lieu of notice.

She suspected that her dismissal was directly connected to her pregnancy and decided to raise an action for direct sex discrimination in the Employment Tribunal.

If a claimant is able to present the tribunal with facts from which they could conclude, in the absence of an adequate explanation, that the respondent has unlawfully discriminated against the claimant, the tribunal must uphold the complaint.

At the tribunal, AHG argued that Anstey’s dismissal was not discriminatory, as she had not been retained because of a lack of necessary skills or experience to carry out the role, a lack of organisation and an inability to complete any tasks.

The tribunal disagreed. They said that Anstey had established sufficient facts from which an inference could be drawn that the treatment meted out to her had been on the grounds of pregnancy. The allegation that she was dismissed for capability or poor performance simply did not ‘stack up’ in the light of the history of the matter prior to the announcement of her pregnancy and AHG Ltd’s hastily arranged meeting to dismiss her. Her claim therefore succeeded, together with a claim for automatically unfair dismissal.

An employer’s initial reaction when informed of an employee’s pregnancy often has an impact on the tribunal’s decision as to whether to draw an inference of discrimination. For example, asking “how much is the pregnancy going to cost me?” or saying that the pregnancy “completely changed the position and there would always be a place for you after the baby is born but not before” may shift the burden onto the employer to demonstrate that there was no discrimination.

On the other hand, in another recent case, the tribunal felt that the HR manager’s casual, unsarcastic remark – “What, again?” – on being told of the claimant’s fourth pregnancy, was not sufficient to shift the burden of proof to the employer.

As we all know, pregnant women may have periods of ill-health which are related directly to the pregnancy. Employers who seek to use absence as a reason for dismissing a pregnant woman may have difficulties in avoiding an automatically unfair dismissal claim. Protection under this provision is very wide and certainly covers ante-natal care, miscarriages and pregnancy related illnesses.

Here’s a case in point. Ms Hill began working for The Old Rectory Nursing Home as a care assistant in May. In February the following year, after eight episodes of sickness absence, she was given a final written warning that if her attendance did not improve she would be dismissed.

In early June she informed her employer that she was pregnant. During June and July, Hill was off work on four occasions with pregnancy-related sickness. She was dismissed on 14 August because of her level of sickness absence. The tribunal found her dismissal automatically unfair under the Employment Rights Act.

Employers in a similar position would do well to ignore pregnancy-related illnesses in assessing whether to dismiss an employee for excessive absence. Even then, it may often be difficult to assess whether a particular absence is pregnancy-related or not.

Only a small percentage of tribunal cases reach court. However, employers who do find themselves involved in litigation risk uncapped awards with six-figure compensation becoming increasingly common.

• Ian Watson, Training Services Manager, Law At Work Law At Work is MDDUS preferred supplier of employment law and health and safety services. For more information on our services please visit www.lawatwork.co.uk or call us on 0141 271 5555