“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.
Whilst on the topic, what are the risks in performance managing or absence managing a pregnant employee? Well, the Equality Act 2010 protects pregnant employees (and employees on a subsequent period of Maternity Leave or Shared Parental Leave) from detriment due to any effect of their pregnancy. That’s the big one just there: ‘any effect’. So, if an employee suffers from morning sickness and this affects her performance, this can’t be used to justify performance managing her. If an employee suffers from extreme morning sickness and uses sickness absence days on the worst affected days, this can’t be used to justify a formal absence management process and so on.
Now, let’s have a more detailed look at this particular scenario and no, before you ask, the fact the Line Manager is also female has no bearing on whether she discriminated against Thyme or not in comparison with a male line manager.
So, what are the risks to the employer? Well, firstly, Rosemary’s comment about Thyme “having baby on the brain” is direct discrimination. This is because Rosemary is treating Thyme less favourably than non-pregnant employees by judging that she is less useful to the company due to her pregnancy.
Secondly, Rosemary’s comment about Thyme having a “poor attitude” is also discriminatory if the reason for her observation is related to her pregnancy (i.e. due to lowered attendance due to pregnancy-related sickness and/or pregnancy-related appointments or due to ill-health during working hours (e.g. morning sickness)), which appears likely here.
Rosemary’s comments to Thyme could well constitute harassment on account of Thyme’s pregnancy. This is because Thyme is likely to feel that the comments create a hostile, degrading, humiliating and/or offensive environment for her to work in, which is the legal definition of harassment. This would be the case even if Rosemary didn’t intend the comments to have this effect. This is because the current harassment rules under the Equality Act only focus on how the words are perceived by the recipient and not the intention of the speaker.
Under the Equality Act, Thyme is protected against any detriment in relation to raising her complaint with HR. Any detriment suffered, however minor, risks Thyme bringing a victimisation claim at Employment Tribunal whilst remaining an employee.
On the above facts, there is limited scope for an indirect discrimination claim. However, if the employer was to subject Thyme to a formal performance management process due to her “poor attitude” (which, in fact, is linked to the effects of her pregnancy), this would be an act of indirect discrimination.
This being said, if Thyme’s performance is genuinely due to poor attitude and can’t be linked to her pregnancy, then the employer is free to go down this road. However, this remains a risky path (albeit it would be easier if Thyme had been subject to formal performance action before becoming pregnant) and the employer should obtain legal advice before taking any action.
What happens next?
Thyme is able to bring a discrimination claim whilst still an employee of the company and doesn’t have to leave the company in order to do so.
The above example shows how easy it is for an employer to be caught up with a pregnancy-discrimination claim. Obviously, most allegations wouldn’t be as shocking and black and white as above, but whether major or minor, they take time and effort to handle.
So, how should the employer attempt to rectify this situation? Well, the employer should now genuinely investigate the grievance and seek to mediate the situation and regain Thyme’s trust. A failure to do so is likely to lead to further action against the employer by Thyme. If so, the employer will have the choice of defending her claim down the line or considering a Settlement Agreement; whichever way, it won’t be cheap for the employer and Rosemary’s words may well prove expensive!