Employment Law Case Update: Pregnancy Discrimination and Covid-19

Adjusting to a new way of working over the last year has been a challenging one for employers and employees, particularly if you have vulnerable or at risk employees.  Making the right decisions for their health and safety as well as their mental wellbeing while still allowing them the opportunity to work has been so important.  Our Employment Law team today review the case of Miss A Prosser v Community Gateway Association 2021 in which the tribunal considered whether an employer discriminated against a pregnant worker by sending her home due to health and safety concerns in the early days of the Covid-19 pandemic.

In June 2019, Miss Prosser began her engagement with the company as a casual worker and in March 2020 she informed her line manager that she was pregnant. A couple of days later, her line manager sent her home from work as she considered Miss Prosser clinically vulnerable to the Covid-19 infection. It was not clear at this point how long Miss Prosser would be required to stay away from work, but she was unable to work her scheduled shift for the rest of March and April.

In May 2020, Miss Prosser informed the company that she had not been paid for her scheduled shifts in April, and also requested that she be allowed to return to work. After a risk assessment, it was determined that Miss Prosser could be allowed to return to work as a day shift worker once Perspex screens were fitted between desks at the office.

By the end of June 2020, Miss Prosser raised a grievance alleging pregnancy discrimination because she had still not been paid for her scheduled shifts in April and because she had still not been allowed to return to work. Her grievance was not upheld, but a subsequent second risk assessment determined that Miss Prosser could now return work to work during the day because, even though the company was still working to get the Perspex screens installed, the office desks had since been moved further apart.

Miss Prosser returned to work in August. She was also paid for the average four shifts a month she would normally have worked during the months of April, May, June, and July had she been allowed.

Miss Prosser subsequently filed a claim against the company for direct discrimination related to pregnancy and maternity for being sent home in March 2020 and not allowed to return.

The Employment Tribunal (ET) found the company did not subject Miss Prosser to unfavourable treatment by sending her home, and that this decision was “appropriately informed through the requirements placed upon the [company] as a result of the Government’s public health advice and regulations leading from the onset of the first Covid-19 lockdown”. Further, delaying her return to work until appropriate social distancing measures could be put in place also did not amount to unfavourable treatment, “but a positive step being taken to protect her in complying with legislation designed to provide her with protection”.

Miss Prosser’s claims for discrimination based on pregnancy and maternity were therefore ill-founded and consequently dismissed.

Though this case is not binding on future tribunals, it should reassure employers who prevented pregnant employees from attending the workplace during the pandemic that their actions were justified. Employers are reminded of their duty to conduct a risk assessment when a worker or employee informs them that they are pregnant, and of their duty to take reasonable steps to remove any health and safety risks to allow the pregnant worker to continue working. If health and safety risks cannot be removed and no alternative work is available, it may be necessary to suspend the employee on full pay.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.