Section 13 of the Equality Act 2010 provides:
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably that A treats or would treat others.”
The Equality Act 2010 contains a definition of protected characteristics at s4 which include “sex” and “pregnancy and maternity”.
The claimant worked as a Property Manageress for a letting agency and had been employed for over a year. Initially, her employment started out positively and she received glowing reviews. However, as time went on and she disclosed a pregnancy, this did not continue.
Sadly, the claimant miscarried her baby. As this occurred before 24 weeks, she was not entitled to maternity leave. She was also only ‘protected’ from detriment or dismissal for two weeks following the miscarriage.
Following the miscarriage, she took a period of pre-booked annual leave and was signed off sick before she returned to work, by reason of miscarriage. Shortly after, without prior notification or process, the claimant was dismissed via letter, stating that she was “not fit to complete [your] role” and that another sick note could not be accepted. A further dismissal letter was later received, almost two weeks after the first, which cited the economic climate and her failure to complete her role (resulting in poor performance) as reasons for the dismissal.
EMPLOYMENT TRIBUNAL (ET)
The Employment Tribunal upheld the claim that the dismissal was as a result of her absence, which had arisen due to the miscarriage. This was made clear in both dismissal letters, which, whilst contradictory, both cited the absence as a reason for the dismissal.
In discrimination cases it is necessary to establish a comparator. Comparing the claimant in this case to a male employee who had taken two weeks off as sick leave (but otherwise a good performer), it was found that this hypothetical comparator would not have been dismissed in the circumstances, as the ET found as fact that the miscarriage was the reason for the dismissal, which is a unique and protected characteristic of the female sex.
The claimant was awarded £10,500, which included a £7,000 award for injury to feelings.
The ‘protected period’ afforded to pregnant employees, new mothers and those who have suffered a miscarriage is an important part of Equality laws in the UK. However, it would be incorrect to believe that once the ‘protected period’ has ended, so does the protection afforded to affected employees.
As this case clearly shows, even after the protected period has ended, a dismissal can still be found to be in connection with a pregnancy-related issues and, therefore, discriminatory. In this case, it is just that the discrimination is on grounds of sex and not pregnancy or maternity.
Employers must therefore treat employees with dignity and respect, and not rush to dismiss in cases such as this. Discussing the situation with the employee, offering comfort and assistance and agreeing a phased return to work are likely to yield much better returns than dismissal.