What lead to the Unfair Dismissal of a Pregnant Employee?
For the following article, we look at the case of Peart v Care Preference Ltd, which demonstrates a series of events that lead to the unfair dismissal of a pregnant employee. It is also important to be aware of how to ensure you treat pregnant employees fairly to avoid cases of unfair dismissal in the future.
Peart v Care Preference Ltd — Background
The Claimant (Peart) worked as a personal care assistant from November 2016 to April 2018. As part of her role, she provided care to a service user who used a wheelchair and was insulin-dependent. On top of this, she also had her own two children (under the age of 5) to care for.
Peart’s employer (Care Preference Ltd) had an on-call policy which stated that staff were expected to “maintain their ability to do the work and be responsive at extremely short notice”. It stated that a failure to adhere to the policy would potentially put the safety of clients at risk and disciplinary action may follow as a result.
In December 2018, the Claimant’s service user was due to attend a hairdresser’s appointment which would require lifting support and transfer from her wheelchair to the hairdresser’s chair. However, the Claimant was in the early stages of pregnancy and decided to inform her employer, given that she had experienced high-risk pregnancies previously.
She also requested to view the rotas in advance to plan around childcare and antenatal appointments. She discovered that her employer expected her to work part of every weekend, when she usually only worked one in four weekends. Therefore, this affected her personal childcare arrangements. These concerns were raised with Peart’s employer; she stated that finding childcare to suit the hours she was expected to work was impossible.
The need for risk assessments to be carried out and time off for antenatal appointments was also brought up. On 19th January, her employer carried out a risk assessment which failed to identify fatigue or other risks from long hours but simply referred the Claimant to the usual manual handling policies and procedures. The only adjustment made was the removal of the requirement to provide standing support to the service user.
The claimant was down to work from 8.30am on Tuesday 6th March to 8.30am on Thursday 8th March and was the primary on call responder over the weekend.
The Claimant was then asked to attend work at 6pm on Friday 9th March to cover the weekend shift. She was contacted by the employer on the evening of the 7th March to discuss the change in care arrangements. She indicated that she could not work beyond 8.30am the following day because of her own children.
On 9 March, she requested to be removed from the on-call rota as she could not fulfil them and was not happy with the number of hours she was being asked to work. She worked from 12th to 14th March and was due to work the weekend shift again starting from 6pm on Saturday to 8.30am on Monday. At no point did her employer make any arrangements to relieve her of the 48-hour shift, despite her informing them of being unable to work longer weekly hours.
On 16th March, she informed her employer that she was unable to work the weekend shift due to ill health on the advice of her GP. She also confirmed that she had obtained advice from Acas that it was illegal for pregnant women to work more than 48 hours within a week. She stated that if at any point she had agreed to work over 48 hours, she was withdrawing that agreement due to her change in circumstances.
Afterwards, Peart was invited to a meeting to discuss her refusal to attend on-call duties and failure to follow procedure for sick leave. She replied stating she was unable to attend, but clarified that the reason for her failure to attend on-call duties was an issue with her children and that she had requested dependency leave. Following this, she tried to access the employee portal to see the on-call rota but was unable to do so and was informed that she had been suspended.
After a meeting on 24th April, Ms Peart was dismissed. She appealed against the decision but unfortunately this was not upheld. Persistently, she took her employer to the Tribunal and was successful in her claims of automatically unfair dismissal and pregnancy and maternity discrimination.
Why was Peart dismissed?
The Tribunal found that the principal reason for the unfair dismissal of a pregnant employee in this case was the assertion of her statutory rights under the Working Time Regulations, despite the employer stating that her request to reduce her hours had “passed him by”. The Tribunal also found that her pregnancy and her refusal to work more hours were “indivisible” and so the pregnancy was considered a material influence or effective cause of the dismissal.
As a result, Peart was awarded £35,925 for unfair dismissal and injury to feelings.
The employer stated that he had taken a “zero tolerance” approach with regard to the principle of on-call attendance as the consequences for service users could be serious.
The Judge found that the employer believed the Claimant’s objections to work extra hours were due to her “desires” rather than practical difficulties in securing childcare, and that her approaches to Acas revealed some kind of sinister motive. This was despite the fact that she had planned arrangements to be available for work, had personal stress with the pregnancy itself and had to arrange pregnancy appointments on top of it all.
Tips to ensure your pregnant employees are treated fairly
This case is a clear reminder to employers to ensure that pregnant employees are dealt with fairly, and to take into account all circumstances when considering dismissal without jumping to conclusions.
It also highlights the need for full risk assessments to be carried out. The Claimant raised issues of working in excess of 48 hours per week. Therefore, it would have been sensible to discuss this with her as part of a risk assessment and consider obtaining a medical report. On the back of that information, consideration could then have been given to:
- Altering working conditions and/or hours of work to avoid any significant risk;
- If not reasonable to alter working conditions or hours, providing suitable alternative work;
- If suitable alternative work is not available, suspending the employee on full pay for as long as is necessary to avoid the risk.