All employees have the right not to be treated less favourably on grounds of a protected characteristic. There are nine protected characteristics: age, race, religion and belief, gender, sexual orientation, pregnancy and maternity, marriage, disability, and gender reassignment. Treating an employee (or even candidate at recruitment stage) less favourably because of a protected characteristic is unlawful in the UK. This includes the right not to be dismissed or suffer less favourable treatment because of pregnancy.
Rachel Skeffington recently won more than £17,000 in an employment tribunal after it was found that the reason for her dismissal was her pregnancy. She worked as a bar manager at the John O’Gaunt Inn in Hungerford. After she told her employer that she was pregnant Ms. Skeffington and her partner were told to leave the gastro-pub accommodation where they had lived and worked for five months. Her employer Mark Genders told her that he did not want her working while she was pregnant.
Ms. Skeffington claimed that when she told Mr. Genders that she was pregnant he responded by swearing and telling her that she would not get maternity pay. Mr. Genders also made fun of Ms. Skeffington in front of his friends who were customers at the pub. She claimed he would say that he had to get her notice before she became too fat and wobbly to work behind the bar. Despite the comments from her employer Ms. Skeffington continued to work at the pub until the day Mr. Genders sent her an email asking when she would be handing her resignation in. Ms. Skeffington refused to resign and was instead dismissed at a formal meeting.
Mr. Genders tried to argue that Ms. Skeffington’s dismissal was because of her failure to keep the pub cellar tidy and her poor time management but there was no evidence to support this. Ms. Skeffington’s dismissal was an act of direct discrimination on grounds of pregnancy and the dismissal was therefore automatically unfair. In these circumstances an employee doesn’t need two years’ service to complain of unfair dismissal.
Ms. Skeffington was treated less favourably because she had the protected characteristic of being pregnant. She was awarded £17,239 compensation. This was made up of awards for wrongful dismissal, injury to feelings, loss of earnings, maternity payments and failure to have been provided with a statement of written particulars. The cost of unlawful discrimination is hefty. In this case there was an uplift of 10% to take into account the employer’s failure to follow a procedure. On top of the award there will have also been tribunal costs and of course damage to the reputation of the business.
You may have a provision, criterion or practice in place causing you to indirectly discriminate against an employee. Sometimes you may not even be aware that you are discriminating. Requiring a candidate to have a maths GCSE could amount to both age and race discrimination unless you accept equivalent qualifications. Your provision, criterion or practice may be justifiable if you can demonstrate that it is a proportionate way of achieving a legitimate aim. For example requiring a bilingual Muslim classroom assistant to remove her veil when working with children, though allowing her to remain veiled at other times.
If Ms Skeffington had been an unsatisfactory and under-performing employee irrespective of her pregnancy and it had been properly noted and managed that’s one matter. In her case there was nothing to suggest that she was unsatisfactory. It is hard to credit that so many years after the original Sex Discrimination Act gave women protection that this type of thing continues. Make sure you manage your employees (pregnant and otherwise) properly.
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