The importance of taking expert advice on HR and employment law matters

A recent Employment Tribunal (“ET”) decision has ruled that a pregnant woman was automatically unfairly dismissed following her announcement to her employer that she was pregnant.

Facts of the case

Mrs Walker started to work for an asbestos removal company, Arco Environmental on 3 November 2019.  She was not aware, at that time, that she was pregnant. 

Three weeks later she informed her manager that she was pregnant. After revealing this news the attitude of the employer changed towards Mrs Walker and she found that she was being subjected to unfavourable and discriminatory treatment.  Examples of this treatment included:

• The employer’s Commercial and Financial Directors making it very clear that they did not want to speak to her;
• The Financial Director asking Mrs Walker whether she had been trying for a baby when she accepted the role;
• Being invited to a meeting where she was told she would now have to “tread carefully” around the company owner; 
• Being completely ignored in the morning when the employer’s Directors said good morning to other members of the office team, but not to Mrs Walker; 
• Being told that her working hours would be changing; and
• Being made to feel as if she had taken the role with the employer just so she could claim maternity pay from it. 

All of these acts occurred over a 3 day period.  At the end of this period Mrs Walker resigned as she could not face working for the employer any longer. Her employment lasted for only one month.

Afterwards Mrs Walker pursued a claim against her employer in the ET for:

• A failure by the employer to provide her with a written statement of her particulars of employment.
• Constructive unfair dismissal;
• Automatic unfair dismissal due to her pregnancy;
• Direct pregnancy and direct sex discrimination;
• Harassment as a result of her pregnancy; and
• A failure to pay notice.

Mrs Walker was successful in every element of her claim with the ET being critical of the employer’s handling of the situation.  

The matter is now being re-listed for a remedy hearing where the compensation to be awarded to Mrs Walker will be determined.

The employer’s mistakes

Sadly this case illustrates a number of important principles in relation to the law and the difficulties that businesses can get into.

On the plus side the Company had retained advisers in the form of an online subscription service.  Although they gave advice the employer’s managing director dealt with HR matters and decided to ignore the advice he was given.

The Company had not provided Mrs Walker with a section 1 statement, entitling her to claim up four weeks’ pay for the failure to provide it.  The award was at the higher end because no paperwork had been provided.
The Tribunal found that there was a change in atmosphere following the Claimant’s announcement of her pregnancy and that she was ostracised.  

There appears to have been an attempt to change her working hours to 9am – 5pm, which she had only worked for three days during her trial period.

Managers made a number of insensitive and inappropriate comments which violated her dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for her. 

Whilst in a small business an employee who has joined becoming pregnant may make life more difficult, because they will take maternity leave, businesses have to cope with this type of situation.  Treating an employee who has become pregnant, poorly, will almost inevitably mean that the burden of proof to provide an innocent explanation for such treatment will pass to the employer.  In this particular scenario the managers admitted they were out of their depth, because they had never had to deal with a pregnant employee.   
   
Seeking expert advice and support when managers recognise they have gone beyond the realms of their knowledge and experience or are dealing with a “tricky” situation is vital.

We can help!

Boyes Turner’s employment team have many years of experience advising businesses on all areas of employment and HR matters.  In addition we run regular employment law and Manager/HR training sessions and webinars to assist employers and Managers in understanding employee rights and helping them to know the issues and explain how best to deal with novel problems.