When the Equality and Human Rights Commission recently asked YouGov to conduct a survey about attitudes of employers towards pregnancy discrimination, the survey said:
- 36% of employers agreed that it is reasonable to ask women about plans to have children in the future during recruitment;
- 59% agreed that women should have to disclose pregnancy during recruitment;
- 44% agreed that women should work for an organisation for at least a year before deciding to have children.
The employer in the recent Employment Tribunal case of Walker v Arco Environmental Limited would appear to have had similar (discriminatory) views about pregnancy and maternity leave.
Background to this pregnancy discrimination case
Mrs Walker resigned from her administrator role without notice and brought claims which included constructive unfair dismissal, pregnancy discrimination and sexual harassment. Mrs Walker had been employed for just under a month by a small company with 23 employees. After three weeks of employment, Mrs Walker told her employer that she was pregnant.
At the Employment Tribunal, the employer’s managers made the point that they had never worked before with a pregnant employee and had never had direct HR responsibility for a pregnant employee because in other previous jobs in bigger organisations there had always been an in-house HR team to deal with such matters. This was not seen to be a good defence.
Mrs Walker claimed that her working environment totally changed after she told her employer that she was pregnant and it was no longer a “nice family business” and close working environment with a friendly and informal atmosphere where she got on well with everybody. She said that her managers became quiet with her and avoided conversation.
When Mrs Walker showed a manager her pregnancy scan she was asked whether she had been trying to get pregnant. The Tribunal found that this line of questioning and the conversation that followed demonstrated the employer’s position that Mrs Walker’s pregnancy was an inconvenience to the business. It probably did not help that the Tribunal found that the manager gave her evidence in a highly emotive and often angry way.
The Tribunal accepted that Mrs Walker knew after this that her employer suspected that she had taken the job whilst she was trying for baby or knew that she was pregnant.
Later that day, Mrs Walker attended a meeting with two other managers. Mrs Walker was again asked whether she knew that she was pregnant when she took the job. At the Tribunal it was claimed that Mrs Walker was asked this question simply “out of curiosity”. However, the Tribunal found that it was reasonable for Mrs Walker to believe that the reason for the question was because management expected that she had taken the job under false pretences knowing she was pregnant and that this was found to be an implied criticism of her.
At the meeting, Mrs Walker was also told to “tread carefully” around another manager, Mr Rees. It was claimed at the Tribunal that this was only said because Mr Rees had recently had a stroke. When the Tribunal Judge asked whether the comment was made because Mr Rees was “fed up” that Mrs Walker was pregnant so soon into a new job, a manager replied that everybody was upset and not only Mr Rees.
Mrs Walker worked part-time for her husband’s business and the employer accepted that she could have thought the company’s position was that she knew about her pregnancy and took the job anyway to avoid her husband’s business having to pay her maternity pay. Mrs Walker had tried to reassure her employer that she had not taken the job for maternity pay as this was guaranteed anyway by her husband’s business but she received no response to this message.
The managers spoke about a “cloud” in the workplace after Mrs Walker announced her pregnancy and described the atmosphere as “flat”. It was suggested that this was only because Mrs Walker was apologetic about her pregnancy and that they were panicking about HR issues. The Tribunal was unconvinced by this and did not find that this amounted to a non-discriminatory explanation of what had happened.
Perhaps unsurprisingly Mrs Walker succeeded in all of her claims.
What can employers take away from this to avoid pregnancy discrimination?
- Harassment does not need to be for a long period of time.
- Small businesses with limited HR resources are not exempt from discrimination law.
- Do not ask questions about intentions in relation to pregnancy at the recruitment stage or at any other time (this may sound obvious but see above) …
- Whether an employee was trying to get pregnant or is pregnant at the time she takes a job is entirely irrelevant and is best not asked about if she announces a pregnancy.
- Do not make unspoken negative comments in emails which could come out if an employee makes a subject access request. React positively to pregnancy news! It’s a new start.