Case Law Update: Pregnant Employee Unfairly Dismissed

 

There has been a recent case relating to a pregnant worker who was unfairly dismissed as a result of raising concerns over her working hours. The worker was a care assistant who was required to work on-call shifts and take on shifts at very short notice to ensure clients were not put at risk. advo HR updates.

In this new case law update the claimant refused to cover some shifts at short notice because she had her own childcare responsibilities, was pregnant also and had some health issues. She then asked to be removed from the on-call duties and also raised being unhappy with the number of shifts she was being asked to cover. She sought advice from ACAS who explained that it was illegal for a pregnant woman to work more than 48 hours within a week. The claimant stated that whilst she may have signed an opt out of the Working Time Regulations before, given that she was now pregnant she would now no longer be working over 48 hours per week with immediate effect.

The founder of the business invited the claimant in writing to a meeting to discuss the reasons why she refused to attend on-call and not following the correct sickness reporting procedure. The claimant said she could not attend the meeting scheduled, but explained that she could not complete the on-call, as a result of issues with her children. Later the claimant phoned her employer, to ask why she did not have access to the employee portal and she was informed she had been suspended. Following this, a meeting was held where the claimant was dismissed. She appealed, but the decision was upheld and she then took the case, to the employment tribunal.

At the employment tribunal the Judge ruled that she was unfairly dismissed and that the employer dismissed her, as a result of her declaring her statutory rights under the Working Time Regulations. The Judge explained his rational, that the employer considered the workers objections were based on her ‘desires’ and did not consider the actual difficulties the worker was facing in relation to childcare, amongst other reasons, including pregnancy. The tribunal ordered the employer to pay the claimant £35,925 for unfair dismissal and injury to feelings.

So, what can we learn from this case? It is vital that a fair and thorough process is carried out, to ensure that no conclusions or assumptions are being made along the way. If at all possible, independent and different people should hold investigations, hearings and appeals to ensure impartiality. In regards to the fact this person was pregnant, dismissing a pregnant woman may potentially carry a risk due to discrimination, as being pregnant is listed as a protected characteristic under the Equality Act 2010.

When a pregnant employee notifies you, they are pregnant, if you are not sure what to do, advo hr can help, If you would like more information on this subject or believe we can help support your organisation in any other area of HR please do not hesitate to get in touch. In the first instance please email Carly Gregory on cgregory@advogroup.co.uk where we will be delighted to assist.

 
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