A recent remedy judgment in the Employment Tribunal in Manchester awarded a total gross sum of £185,000 to an employee who was dismissed when the primary reason for her dismissal was the fact she was pregnant.
What did the Tribunal rule?
The original hearing in February 2021 found unanimously that Rachel Richardson had been automatically unfairly dismissed where the principal reason for her dismissal was her pregnancy.
They also found that the dismissal was discriminatory under the specific pregnancy and maternity provisions of the Equality Act.
Reasons for dismissal
In its judgment, the Tribunal found that the decision to dismiss Ms Richardson had been communicated to her while she was on a pregnancy-related absence and with the employer’s knowledge of her pregnancy.
The Tribunal were highly critical of the ‘lack of consistency’ in the reasons for dismissal otherwise given by the employer.
Is pregnancy a protected characteristic?
Pregnancy and maternity are not listed in section 4 of the Equality Act which is the list of specific ‘protected characteristics’.
Instead, they are afforded a particular form of protection under section 18 which is within part of the Act describing ‘prohibited conduct’.
Under section 18 is it unlawful to treat a person unfavourably because they are pregnant or because of an illness suffered as a result of pregnancy or for exercising maternity rights.
This period of protection exists from the start of the pregnancy until either the individual returns to work at the end of maternity leave, or where they do not have a right to maternity leave, two weeks after the end of the pregnancy.
Can you dismiss a pregnant employee?
Yes, providing you have a legal reason to do so and follow the correct procedure.
There is no blanket rule banning you from dismissing an employee simply because they are pregnant. You can still do so for misconduct, for example, or even through a genuine and properly conducted redundancy process.
When is it unlawful?
What is unlawful is dismissing an individual because they are pregnant, or taking time off for pregnancy or maternity-related reasons (or other various parental and statutory leave rights).
This is protected under Section 99 of the Employment Rights Act and, in relation to maternity, under Regulation 20 of the Maternity and Parental Leave etc. Regulations 1999.
Why was the award so high?
Of the award, £30,000 was for injury to feelings following the Vento guidelines making this an upper-band award at the time.
£10,000 was awarded as damages for personal injury which, while unclear from the judgment, may relate to physiological injury.
£3,000 was awarded in special damages which again, while unclear from the judgment, is likely to refer to resulting and specific financial losses from the dismissal.
£800 was awarded relating to accrued but untaken annual leave.
What was the bulk of the award for?
The bulk of the award (£141,200) was for damages caused by loss of earnings.
While Ms Richardson’s salary was not disclosed, she was described as a senior quantity surveyor for the company, which provides specialist engineering and technical services to the nuclear industry.
Given the niche market and her obviously very specialist skills, the Tribunal would have recognised difficulty in her obtaining alternative employment.
A specialist Employment Solicitor’s View
Chris Dobbs said: “In a discrimination claim, the Claimant is first tasked with establishing facts which show on their face that discrimination took place.
If they can do so, as Ms Richardson did, the burden shifts back to the employer to show that the conduct was otherwise lawful and non-discriminatory.”
The importance of justifying a decision
Chris continues: “Even where discrimination has not occurred, employers should be mindful of documenting and carefully explaining the justifications for a decision so that they can readily defend any future claims.
It should go without saying that if a decision is genuinely discriminatory, this will often come to light in Tribunal and the risks of doing so are clear from this judgment.”
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