Pregnancy and maternity discrimination: Employment Tribunal case law update

After increasing substantially in recent years, legal claims against employers over pregnancy and maternity issues have certainly not gone away during the pandemic, and the results continue to grab headlines. Claims and disputes over the treatment of employees and workers who are pregnant or on maternity leave pose risks to businesses around recruitment, retention, and reputation as well as damages and compensation payments. They can also result in some of the largest compensation awards made in the Employment Tribunal.

In our upcoming webinar on Thursday 14 October, we will be giving an overview of employer rights and responsibilities around pregnancy and maternity and answering some of the top queries we receive about doing the right thing to support your employees and workers who are pregnant or on maternity leave, while protecting your business from risk.

Today, here are brief outlines of three key recent Employment Tribunal decisions. We’ll be covering the principles behind these decisions and the employer pitfalls they highlight at our webinar, which you can register for here.

Pregnant actor should have been properly considered for non-pregnant role
Kinlay v Bronte Film and Television Limited

The claimant was due to return to her small role in a TV series produced by the respondent company. After learning that she was pregnant, they replaced her on the grounds that it would not fit with the plot for the character to appear pregnant. Here, the company looked to rely on the narrow exception of a ‘genuine occupational requirement’ allowing for otherwise unlawful discrimination.

However, the character and the actor herself not being visibly pregnant were not necessarily one and the same – due to modern filming and post-production tricks – and the employer was not able to show that they had thoroughly considered and ruled out options to help the claimant keep her role. The Tribunal also found that the small risk the claimant would become unwell during filming was insufficient to be reasonable grounds to replace her.

Safety risk assessment for a pregnant employee should have genuinely considered alternative roles and options
Zakar v OCS Group UK Limited

The claimant worked as a customer care agent at Manchester Airport (through an agency). This was a physical role involving pushing and lifting, and when she declared her pregnancy, a risk assessment was undertaken that determined the role was no longer safe for the claimant. She was sent to assist the concierge team for the rest of her shift but was later told that she no longer had a role at the airport due to the outcome of the assessment.

The claimant claimed that her assignment had been ended and a new role not offered due to pregnancy discrimination, but the company claimed that they had acted ‘for the purpose of protecting a pregnant worker’, which can be a valid defence under the law. The Tribunal found however that the defence failed as the company had not considered alterations to the claimant’s working conditions or other alternatives to dismissal – for example remaining with the concierge team – and the duty to do so was implicit in the legislation.

‘Sham’ redundancy process led to judgment, criticism against employer, and £30,000 compensation for employee
Shipp v City Sprint UK Limited

The claimant, group marketing director at the respondent company, was excluded from a role in a restructure that took place while she was on maternity leave. When she discovered her role had been eliminated, she was offered a job description for a new more junior role at a £20,000 salary cut. After filing a grievance, she was ultimately dismissed by reason of redundancy.

The evidence showed that a few weeks later plans were made to appoint a new candidate to the claimant’s role, with one manager emailing another ‘the crisis’ is over. The crisis was not over however as the Tribunal found that the process had been a ‘sham’ and the new role made deliberately unattractive to deter the claimant from returning.

The Tribunal also found that the claimant was subjected to a humiliating and degrading environment due to offensive comments made to her about her pregnancy. She was awarded £30,000 in compensation.