Precedent 2: Pregnancy: Unfavourable treatment and redundancy dismissal

This precedent covers these issues:

• unfavourable treatment at work due to pregnancy
• redundancy as a result

Box 8.2 of tribunal claim form

1. I started work for the Bank (the 1st respondent) in June 2017. I worked at the City branch as a clerk throughout. I was given an annual appraisal every October and my ratings were always good.
2. During the appraisal meeting in November 2018, my manager (Peter Lawrensen) (the 2nd respondent) told me I was ready to move on a level and I should start considering a position as personal adviser.
3. On 23 August 2019, I told Mr Lawrensen that I was pregnant and that my baby was due on 20 February 2020. Mr Lawrensen congratulated me. Then he asked whether it might affect my career ambitions. I said I still hoped to have a good career with the Bank.
4. In September 2019, I saw an internal advertisement for the position of personal adviser for the Branch on the notice board. Mr Lawrensen had not mentioned it to me. I applied and was interviewed for the post on 1 October 2019 by Mr Lawrensen and Jenny Shoemaker from HR.
5. On 4 October 2019, I was told by Mr Lawrensen that I had been unsuccessful. I asked why. He looked embarrassed and said I would be getting a letter.
6. On 6 October 2019, I received a letter from HR. It just said that the standard of applicants had been high and I should try again in the future. I found out subsequently that the successful candidate was someone from another branch who had far less experience than I did. She was not pregnant.
7. Also in October 2019, Mr Lawrensen started doing appraisals for everyone in the branch in his usual way, one by one. He didn’t do an appraisal for me. He said there probably wasn’t any point in doing an appraisal for me just before I was going onto maternity leave. I said I still felt it would be useful. Mr Lawrensen said OK, he would try to squeeze me in, but he was always too busy.
8. A few weeks later, Mr Lawrensen announced that the Bank needed to reduce the number of clerks at my branch from seven to five. The clerks were all interviewed on 25 October 2019. The next day I received a letter informing me that I had been selected for redundancy and giving me 4 weeks’ notice plus a cheque for my redundancy pay.
9. I believe I was discriminated against by the 1st and/or 2nd respondent on grounds of my pregnancy contrary to the Equality Act 2010: (i)   in the failure to promote me to the position of personal adviser (see paragraphs 4 and 5 above); (ii)  in the failure to carry out my appraisal in October 2019 (see paragraph 7 above);
10. In addition, the 1st respondent subjected me to detriments short of dismissal for reasons related to my pregnancy contrary to the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999: (i)   in the failure to promote me to the position of personal adviser; (ii)  in the failure to carry out my appraisal in October 2019.
11. I believe my selection for redundancy and the failure to offer me alternative employment was on grounds of my pregnancy contrary to the Equality Act 2010, Employment Rights Act 1996 and Maternity and Parental Leave etc Regulations 1999.
12. Further or alternatively, it is also clear that, if I had been promoted in October 2019 (as explained above), I would not now have been made redundant.
13. I also believe my redundancy dismissal was unfair under s98(4) of the Employment Rights Act 1996 because  (i)   I was unfairly selected for redundancy. All the clerks in the Bank should have been considered as possible for redundancy. (ii) I was not properly consulted. The decision had already been made before we were interviewed. (iii)  I was not offered alternative employment.

Notes 

Actions complained of

Always identify the actions complained of first. Here, these are:

•          The failure to promote the claimant to the position of personal adviser.
•          The failure to carry out her annual appraisal in October 2019.
•          Being made redundant.

It is very important not to miss tribunal time-limits. These can be complicated.

Applicable law

The employer’s detrimental actions other than dismissal, ie failure to promote; failure to carry out an appraisal, are

• Acts of unfavourable treatment because of pregnancy under section 18(2) of the Equality Act 2010.
• Detriments for a reason related to pregnancy under section 47C of the Employment Rights Act 1996 and regulation 19 of the Maternity and Parental Leave etc Regulations 1999.

Redundancy dismissal due to pregnancy or for a reason related to pregnancy is:

• Automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and regulation 20 of the Maternity and Parental Leave etc Regulations 1999.
• Unfavourable treatment because of pregnancy under section 18(2) of the Equality Act 2010.

Alternatively, if it is proved that the failure to promote was due to the claimant’s pregnancy and that, had she been promoted, she would not have been made redundant, her compensation should include loss of earnings resulting from her redundancy.

Unfair dismissal – if the claimant is an employee with at least two year’s service she can claim ordinary unfair dismissal under section 98(4) of the Employment Rights Act 1996. For this, she does not need to prove the dismissal was in any way related to her pregnancy, but simply that it was unfair under the usual rules applicable to unfair redundancy dismissals.

The claimant is entitled to statutory redundancy pay or any greater contractual entitlement. In fact, she has been paid redundancy pay, so it isn’t part of her claim.

You might find it helpful to see a table of legal rights often applicable in areas relevant to working families.

Comments on the claim drafted above

Paragraphs 1 – 2: These paragraphs set out a few facts which show that prior to telling her manager she was pregnant, the claimant was getting appraisals and being encouraged regarding promotion. This contrasts with paragraphs 4 – 7, which establish that, after telling her manager she was pregnant, the claimant ceased getting appraisals and was denied promotion.

Paragraph 3: It is important to establish the date when the employer or relevant manager knew the claimant was pregnant. It is particularly important to quote precisely any remarks made by the employer which indicate a negative attitude towards the claimant’s pregnancy.

Paragraph 6 mentions a comparator who is more favourably treated (ie gets the promotion) and is not pregnant. It is not necessary to have a comparator in cases of pregnancy discrimination, but it can be useful evidence that the claimant’s bad treatment is due to her pregnancy. If no one had been promoted and no one had been appraised, it may suggest the reason the claimant was not promoted or appraised had nothing to do with her pregnancy (although there might still be other evidence which suggests it was still pregnancy-related).

Paragraph 7 again mentions comparators, ie everyone else in the branch (presumably not pregnant) who are getting their appraisals done. Again this is not necessary, but helps to show that the claimant’s unfavourable treatment may be due to pregnancy. It is also important to mention what Mr Lawrensen said, as it shows a link between the claimant’s pregnancy and his failure to appraise her.

Paragraphs 9 – 12 set out the law relevant to the pregnancy discrimination.

The reason paragraph 12 starts with ‘further or alternatively’ is to show it is a separate argument from that contained in paragraph 11.

Paragraph 13 adds a claim for unfair dismissal on ordinary grounds. The claim mentions ‘s98(4)’ just to make it clear it is talking about ordinary unfair dismissal here rather than any kind of automatic unfair dismissal.

Except as explained, the above precedent does not cite the precise sections applicable to most of the claims. This is because the law is particularly difficult in this area and if you leave something out or get a section number wrong, it may cause problems later.

Naming individual respondents

Where the claimant has been discriminated against by her employer, she must always bring her claim against the employing organisation (eg the company, firm, local authority or NHS Trust which employed her). For claims under discrimination law, including the Equality Act 2010, but not under the Employment Rights Act 1996 or other legislation, the claimant can in addition bring a claim against any individual employed by her employer who discriminated against her, eg her manager.

In this precedent, the employer is the Bank and has been named as 1st respondent. Mr Lawrensen, the manager has been named as 2nd respondent. Paragraph 9 confirms the sex discrimination claim is made against both respondents. Paragraph 10 clarifies the Employment Rights Act 1996 claim is made only against the 1st respondent (since it is not possible to make such a claim against the 2nd respondent).

Variations

Redundancy on grounds of pregnancy, no other detriments: If the only adverse action taken on grounds of pregnancy was the redundancy (and there was not any promotion or appraisal issue), simply leave out paragraphs 4 – 7, 9 – 10, 12.

Redundancy selection results from non-promotion but is not itself for reasons directly related to pregnancy: For example, supposing the Bank made all the clerks in that branch redundant and did not offer anyone alternative employment. Assuming no one else was pregnant, it would look like the actual decision to make the claimant redundant was not because she was pregnant.

However, it could still be argued that part of her financial loss arising from the earlier discriminatory decision not to promote her to personal adviser was to make her vulnerable as a clerk to redundancy (see paragraph 12). It is uncertain whether the tribunal would award compensation for this less direct financial loss.

Another argument could be that the redundancy itself was still connected with the claimant’s pregnancy, because had the claimant not been pregnant, she would have got promoted and then would not have been made redundant. Legally this argument is untested and you would need specialist advice.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

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