Can an employee be disciplined for looking for another job?

Job Application Form You’d think this would be a weird question but I actually get asked this question on a fairly regular basis. Thankfully, I mostly get asked it by employees rather than employers but, in saying that, I can recall two employers (at a past law firm) that asked me this exact question.

The answer? Quite simply: it depends. It depends on the circumstances but, theoretically, yes, an employee can be disciplined for job hunting. In practice, however, it would be a rare occasion where an employer could safely do so.

To explore the dividing line, let’s look at three examples.

Is sacking an employee who has miscarried an act of pregnancy-related discrimination?

Employment Law book Earlier in my legal career, I helped advise an individual who was subjected to detrimental treatment by her employer due to time off linked to a miscarriage. Naturally, I won’t identify the individual or the specific facts here but, save to say, their employer’s conduct made a very difficult situation even more stressful.

The biggest surprise I experienced during that case was their employer trying to argue that a miscarriage wasn’t pregnancy-related under the Equality Act 2010 because the employee wasn’t pregnant anymore. This is completely incorrect. Why?

Calls for Government to adopt German model of redundancy protection for pregnant employees

Baby Toy There has been a sizable amount of space afforded to pregnancy-related discrimination in the media this past year. In fact, that’s one of the reasons for this series of pregnancy-related blogs. As such, it is becoming increasingly difficult for employers to escape accusations of pregnancy-related discrimination when it arises. This being said, there are charitable organisations out there that believe that more needs to be done: one of these charities is Maternity Action.

During the past week, Maternity Action have released a report (named “Unfair Redundancies”) calling on the Government to strengthen anti-redundancy protection for pregnancy employees. The most eye-catching statistics quoted by the charity include that 1 in every twenty mothers are made redundant during their pregnancy, maternity leave or return to work and that 77% of pregnant women felt discriminated against during their period of pregnancy.

Before we continue, let’s just dial down into that first statistic for a moment.

“Our Line Manager has made discriminatory comments to a pregnant employee?”

Baby's crib with teddy“Our Line Manager, Rosemary, has made discriminatory comments about a pregnant member of staff, Thyme. Her comments include stating that Thyme “has baby on the brain” and has a “poor attitude”. Thyme has complained to the HR Director and is demanding action. What can we do and what could we be facing?”

Thankfully, the above scenario is hypothetical and not a client email. However, some managers do fall into the trap of making discriminatory comments against pregnant staff members and, in doing so, place their employers at risk.

As most employers are aware, pregnant workers obtain advanced protection from detriment under employment law. Contrary to popular belief, this doesn’t entirely prevent genuine concerns about an employee’s conduct and/or performance being formally investigated as long as they have nothing to do with their pregnancy. Unfortunately, in this case, the line manager’s comments appear to be entirely influenced by the Rosemary’s pregnancy and that is a big risk for the employer.

A bitter feud played out in the High Court

Embed from Getty ImagesOver the last few weeks the High Court has heard some astonishing evidence in the bitter wrongful dismissal claim brought by the former CEO of Signia, a wealth management company, as reported in The Independent.

High profile entrepreneur John Caudwell has frequently made the news over the last couple of decades. The founder of mobile phones retailer Phones 4U has presented himself as a forthright, no-nonsense style of businessman. According to the website Caudwell.com (owned, registered and administered by one John D Caudwell and which is currently “down for maintenance”) he is a “successful entrepreneur and philanthropist” who “built an immensely successful mobile telecoms company”.

Signia is a wealth management company that was jointly founded by Nathalie Dauriac and six of her Coutts Bank colleagues in 2010. Another co-founder was Mr Caudwell. The business focuses on high end wealth management. All appeared to be well until details emerged of an extraordinary dispute between Ms Dauriac and Mr Caudwell, ostensibly in connection with expenses claims amounting to some £33,000. Ms Dauriac claimed that the expenses investigation was unfair and was, in effect, trumped up to deprive her of her £12 million 49% stake in the business, which was bought out for a nominal £2.00 fee.

Giving evidence in the High Court trial Ms Dauriac says that when they set up the business in 2010, “Mr Caudwell had asked me…as a last minute condition of jointly setting up the business, to give an undertaking to him not to have children, a proposal I did not agree to”.

Ms Dauriac claimed in evidence that Mr Caudwell orchestrated an “elaborate conspiracy” against her, resulting in her claim of constructive dismissal.

For its part, Signia maintained that she wrongfully claimed the expenses, that her approach to them was “brazen” and that she was “guilty of gross misconduct”.

In his evidence, Mr Caudwell said that the breakdown of his business relationship with Ms Dauriac, who he considered to be a “best friend” was like suffering a “bereavement”: