10 Common Examples of Workplace Pregnancy Discrimination that Commonly Come before Employment Tribunals

16 Mar 10 Common Examples of Workplace Pregnancy Discrimination that Commonly Come before Employment Tribunals

Pregnancy-related discrimination in any phase of employment, including interview, is a significant problem for employees.

Legally, pregnancy discrimination means ‘the unfair treatment of female workers due to pregnancy, childbirth or any medical conditions associated with the pregnancy.’ It also affects male employees if their spouse is pregnant.

In many cases, employers have blatantly discriminated against pregnant women.

Here are ten examples of workplace pregnancy discrimination that commonly come before Employment Tribunals:

Don’t Be Pregnant If You Want to Do this Job

Any organization or employer can’t bond a female employee to be pregnant just to make her undertake a particular job.

The European Court of Justice, in Mahlburg v Land Mecklenburg-Vorpommern [2000] IRLR 276, held that requiring woman not to be pregnant to do her job (due to health and safety requirements) was discriminatory. The ECJ added that the reason why the woman was rejected to get the job was not just because of the health and safety issue, but because of her pregnancy also.

If your employer refuses to retain you as an employer and informs you that you can’t do a job because you are pregnant and a health and safety risk, then this is a discriminatory act on your employer’s part.

Denying the offer letter because you are pregnant

As a candidate, you don’t need to inform your employer that you are pregnant during the recruiting process. Similarly, an employer can’t discriminate against you because you are pregnant or they believe you to be pregnant. Employers can usually avoid references to maternity or pregnancy when drafting advertisement, person specifications or job descriptions.

The ACAS Guide (The ACAS Guide to Pregnancy and Maternity Discrimination) says that if an employer knows about a candidate’s pregnancy or believes that she is pregnant, then the decision-maker shouldn’t be influenced by that belief or information.

Refusing promotion opportunities

Your employer can’t deny your promotion opportunity in the workplace just because you are pregnant.

In general, it is illegal to turn down your application, fails to tell you about suitable job vacancies or discourage you from applying for a promotion.

Sacking Expectant Staff in Compliance with Health and Safety Policies

The employer is solely responsible for your health and safety in the workplace if you are expecting a baby. They should be careful in drafting health and safety policies and making it fair and appropriate. This must take into account all the circumstances. A failure to do so constitutes pregnancy discrimination.

In the Employment Tribunal case of McArdle v Asco Joucomatic Ltd., the Tribunal found a pregnant employee was discriminated against when her employer terminated the agency contract just because of her ingesting chemical compounds.

The Tribunal held that the employer had not considered circumstances, consulted with her about health and safety, or provided her with a risk assessment before terminating the agency agreement.

Penalising you because you don’t come to the office

Pregnancy-related conditions such as miscarriages and morning sickness are believed to be pregnancy discrimination if:

  • The pregnant employee is prone to any form of detriment or damage due to performance issues that arise as a result of pregnancy-related sickness;
  • The employer ignores pregnancy-related illness when dismissing you;

For example, the ECJ in the case of Brown v Rentokil Ltd (European Court of Justice) the ECJ stated that in the event that a female employee is sacked owing to pregnancy-related condition, this will constitute pregnancy discrimination.

Dismissing Pregnant Employees or Making them Redundant

Dismissing an employee just because of the pregnancy or a related sickness constitutes discrimination. So, such activity is considered automatic unfair dismissal.

The Employment Tribunal, in the Employment Tribunal case of Deol v Sonic Laboratories Limited, justified that the dismissal of a pregnant worker, while she was on leave, constituted pregnancy discrimination.

In another case of Lewandowski v Bradford District Apprenticeship Training Academy, the Employment Tribunal clarified that an employee had been dismissed because not because of any genuine redundancy situation, but because of her pregnancy.

Giving notice to pregnant employees because of performance issues

During pregnancy, a workplace performance issue can arise without any doubt.  But, the ACAS Guide very clearly instructs employers to follow below factors when evaluating a pregnant employee’s performance:

  • Pregnancy affects different employees differently
  • Health and safety risks are more prone to pregnant employees

There should also be a special allowance for pregnant employees if the symptoms (emotional volatility or tiredness, etc.) of pregnancy affect their work performance.

Avoid Risk Assessments and Check Health and Safety

Under the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) /(“the Regulations”), it is mandatory for every employer to access the risks of a workplace and make adjustments to working conditions or hours of work to make sure that any substantial risk of new or expectant mothers is avoided (Regulation 16 of the Regulations).

The risk assessment under the law must be “suitable” and “sufficient.” Moreover, Regulation 3 makes it mandatory for the employer to investigate the risks that the employee is exposed to as a result of their employment.

In the case of Queen Victoria Seamen’s Rest Ltd (QVSR) v Ward UKEAT/0465/08, the Employment Appeal Tribunal stated that the employer’s course of conduct (including a failure to undertake a risk assessment) amounted to maternity discrimination and unlawful pregnancy.

Besides, the apex court, in the case of Hardman v. Mallon (t/a Orchard Lodge Nursing Home), upheld that the failure to carry out a risk assessment for a pregnancy care assistant constituted sex discrimination.

Disciplining you because You Complained of Pregnancy Discrimination

Every employee reserves the right to file a complaint against their employee- formally or informally, in the event that the employer discriminates you against. If you are prone to any form of determent because of the complaint of pregnancy discrimination you have filed, this may constitute ‘victimisation.’

The Employment Tribunal, in the case of Jarvis v Davies and Davies Estate Agents, found that a pregnant employee had been mistreated or victimised because she had complained about being discriminated against.

Make upsetting or Derogatory Comments Relating to an Employee’s Pregnancy

If a colleague comments to a pregnant employee inappropriately, it is considered discrimination against the pregnant woman and come to the Employment Tribunal claim.

In Wilson v Provincial Care Services Agency and others NIIT/00431/10, a Tribunal in Northern Ireland apprehended that a worker had been subjected to sex-related harassment when a former employee was told (we can’t give her reference): “this is what happens when you have babies.”

In the Employment Tribunal case of Ginger v Department for Work and Pensions 3401940/2015, the Tribunal found that a colleague’s comments about IVF treatment constituted discriminatory treatment.

If you feel you may have been discriminated against by your employer because you are pregnant, contact an employment solicitor.

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