Pregnant worker was not treated unfavourably when she was sent home at the start of the Covid-19 pandemic

Tribunal decision will provide comfort for employers who sent pregnant staff home for health and safety reasons.

A steady run of cases is now emerging from the employment tribunals where the key events took place at the start of the Covid-19 pandemic. A recent decision has been highlighted for its consideration of pregnancy and maternity discrimination where an employer sent a pregnant employee home whilst grappling with the onset of the pandemic.

As a quick reminder, under the Equality Act 2010, a person (A) directly discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Pregnancy and maternity are relevant protected characteristics for these purposes.

Case: Prosser -v- Community Gateway Association Ltd [2021]

On 13 March 2020 Miss Prosser informed her line manager that she was pregnant and on 17 March she was sent home on the basis she was considered clinically vulnerable because of her pregnancy, in line with then government Covid-19 guidance.

Miss Prosser asked to return to work in May 2020 and CGA undertook a risk assessment. The assessment concluded Miss Prosser could undertake day shift work provided Perspex screens were fitted between work desks. However, due to various issues, the fitting of the screens was delayed until August despite CGA’s attempts to get the screens fitted sooner.

On 30 June Miss Prosser raised a grievance claiming she had suffered pregnancy discrimination because of the failure to allow her to return to work. This was not upheld.

Miss Prosser returned to work in August after the Perspex screens were fitted. Miss Prosser appealed her grievance outcome, but this was not upheld. She then submitted a claim to the Tribunal in September alleging CGA had discriminated against her whilst she was pregnant by sending her home and delaying her return to work.   

The Tribunal took time in its judgment to set out the chain of events which occurred around the time Miss Prosser was sent home and her return to work. On the facts, the Tribunal found that a series of related delays and mistakes which took place during this time contributed to Miss Prosser’s perception that she had been treated less favourably by CGA because of her pregnancy when she was sent home and unable to return to work.

However, the Tribunal concluded that whilst Miss Prosser was sent home due to being classed as vulnerable, this was not unfavourable treatment as it had been appropriately informed by the requirements of the government’s own public health advice and guidance at the time. In addition, the subsequent delays to Miss Prosser’s return and being told she could not return until adequate social distancing measures were in place were held not to be unfavourable treatment – rather they were a positive step taken to protect her in line with relevant legislation.

Comment

On reading the decision there is a degree of sympathy to be had for CGA. Due to a series of unfortunate and untimely mistakes and problems, some of which were not in CGA’s control, Miss Prosser was led to believe that CGA was treating her less favourably than other staff as a result of her pregnancy.

Although Tribunal decisions do not set precedents, this decision will provide some comfort for employers  trying to manage the uncertainties of responding to the pandemic and dealing with vulnerable employees who themselves were no doubt anxious about being sent home and may have not been able to return to their roles for some time as understanding of the virus grew and appropriate workplace adjustments were made.