When protecting pregnant employees is really discrimination

I heard of a case the other day concerning an employee who received a promotion at the same time she found out she was pregnant – two good causes for celebration, you would think? But no, even though the employer had conducted an initial risk assessment and found it could reduce the risks to an acceptable level, it only went and changed its mind three months down the line, concluding that the risks were deemed too high and as a result it should take back the original offer of promotion and increase in salary. The role offered was public facing and required the employee to stand for long periods, which the employer found too risky. In addition, other conditions such as potential exposure to high levels of heat and cold, slippery surfaces and the possibility of verbal abuse were seen as carrying too much risk as triggers for stress and injury,

Understandably the employee took her case to tribunal, who concluded that the employee had been discriminated against on the grounds of her sex. The salary deduction and demotion were viewed as a fundamental breach of her contract, which, according to the tribunal, amounted to unfair dismissal and unlawful salary deduction, referencing the following legal duties in their summary:

• Management of Health and Safety at Work Regulations 1999: the Regulations implement the health and safety requirements of the Pregnant Workers Directive (92/85/EEC) into UK law.
• Workplace (Health, Safety and Welfare) Regulations 1992:
• Equality Act 2010: any breach of health and safety legislation in relation to new and expectant mothers is considered automatic sex discrimination.

For new or expectant Mothers, ensuring lighter duties that don’t require excessive physical exertion is a key control measure, as is providing access to refreshments and facilitating regular short breaks. Other useful provisions and adjustments include agreeing flexible rotas and flexible work allocation and discussing and managing both the volume and the pace of work for the employee concerned. Additionally, employers should ensure seating is available where possible and access to suitable and sufficient personal protective equipment – where risk assessment has deemed this necessary – is provided.

If any of the issues raised in this article affect your business, please give us a call to discuss your options. We are happy to advise and find a solution that works for you and your business: 0800 912 7152