Maternity Discrimination: Victory for pregnant care assistant who challenged working hours
Ian Winrow, Employment Solicitor and Head of Employment Law at Bangor University, discusses the outcome of a recent maternity discrmination case
It’s good to note that a Middlesborough care assistant who was dismissed after choosing to no longer opt out from exceeding a 48-hour-plus week during her pregnancy has been awarded nearly £36,000 in compensation.
The Tribunal heard that care assistants who worked for the employer, Care Preference, were frequently required to work “on call” shifts outside their normal working hours to cover staff absences. This meant staff were expected to agree to opt out of the 48-hour maximum week, something the Claimant had willingly done prior to her pregnancy and a change in her personal circumstances.
The Claimant’s circumstances changed when she became pregnant and her partner, who was serving in the Armed Forces, had been posted, meaning she did not have access to additional childcare.
In March 2018 the Claimant was informed by the company’s managing director, Mr. James that another staff member had resigned and she might need to pick up extra shifts.
Mrs Peart explained despite her earlier agreement, she was no longer to take on extra shifts due to childcare arrangements, and asked to be removed from on-call duties because she was unhappy with the number of additional shifts she was being asked to work.
A week later she took sickness absence on the advice of her GP, giving more than 24 hours’ notice ahead of her shift, as the company policy required.
The claimant had also sought advice from ACAS and notified Mr. James that they had advised her it was illegal for a pregnant woman to work over 48 hours in a week. She told him clearly, “if I previously signed to state that I am happy to work over 48 hours within the same week this no longer stands due to my change in circumstances and I request this be withdrawn immediately as I will not be working over 48 hours after I return from sickness leave”.
The claimant later noticed that her access to the portal for viewing shifts was no longer enabled, although had received no communication advising her she was suspended or dismissed. However, on enquiring, Mr. James advised her that she had been suspended.
The company then invited her to attend a meeting during her sickness absence, where the company questioned her on failure to attend on-call duties and an alleged breach of sickness reporting policies.
Following the meeting, Mrs Peart was dismissed without notice and was given no pay in lieu of notice.
In finding for Mrs. Peart the tribunal ruled that the employer had purely acted because she had raised concerns about the hours she was being allocated.
Judge Joanna Wade said:
“She had not lied; she had simply said she could not cover the shift for lack of childcare. The company’s Mr James did not convene a meeting immediately after the failure, and the claimant was permitted to attend her next shift… As far as she was concerned her explanation of childcare difficulties had been accepted, and cover had been arranged.”
The judge ruled that the main reason behind Mrs Peart’s dismissal was that she planned to withdraw her agreement to work in excess of the Working Time Regulations limit because of her pregnancy.
“The fact that she also alleged that it was illegal for her as a pregnant woman to be required to work more than 48 hours in a week, simply rendered her communication all the more intolerable: Mr James’ had previously been critical of the claimant taking advice and communicating practical difficulties,” she said.
The Tribunal also found that the claimant had suffered undue injury to feelings because of the timing of the dismissal, saying:
“Unsurprisingly when dismissal came it was a severe blow to her confidence, to her resilience, and to her general emotional state and in particular, and we have indicated this as an aggravating factor, the timing was such that it made her financial circumstances just about as bad as they could be. For this reason while unease about treatment at work causes strain, dismissal was bound to have a considerable additional effect and we accept that it did.”
The Tribunal concluded:
“In all the circumstances of this case the pregnancy and the refusal are indivisible and the pregnancy cannot be anything other than a material influence or effective cause of the dismissal.”
The employer was ordered to pay Mrs Peart a total of £35,924.95 to cover loss of earnings and injury to feelings.
Whilst this case is not from our practice at Winrow Solicitors, sadly this is a typical example of the type of claim that our employment solicitors see regularly. I saw similar claims in my many years service for the Citizens Advice Bureau. The good news is, with the right support, and specialist legal expertise, these claims often succeed and regain some justice for the wronged employee.
Thankfully, we also advise many ethical employers who are keen to follow best practice and ensure their staff feel valued, which also protects them from discrimination claims.
If you believe you have experienced maternity discrimination, or have suffered any other form of discrimination at work, please contact us. You will receive a sympathetic ear and honest, professional advice.