Employment Law Case Update: Less Favourable Treatment Due to Pregnancy

No employee should receive less favourable treatment than their colleagues.  Not only will it impact their own mental wellbeing and productivity, but it could also lead to a tribunal claim being brought against the employer, potentially resulting in hefty costs and reputational damage to the business.  Our Employment Law team today review one such case of Mrs N Agarwal v St John Freight System UK Limited (2019) during which an employee was found to have been treated less favourably due to her pregnancy.

Mrs Agarwal was employed by St John Freight System UK from September 2017. From 9am to 3pm she worked in the office and from 4.30 pm to 5.30 pm she worked from home. This had been the arrangement when she was hired and there was no indication that it was temporary. Both Mrs Agarwal and the company found the working from home arrangement unsatisfactory; Mrs Agarwal required her office computer to do her work effectively and found it difficult to deal with queries on her mobile. However, the company made no formal request to Mrs Agarwal that she change her working hours or remain in the office later in the day.

In October 2018 Mrs Agarwal left the office at 2.30 pm to go to the hospital as she was pregnant and had experienced some bleeding. She phoned Mr Kanakasahai, a director, to inform him of her absence and tell him that she was pregnant. He told her that she needed to be in the office and that “if she could not come in, she should resign as he needed staff who could work full-time”. They had a similar conversation a few days later when Mrs Agarwal was going to the hospital for a scan. The conversation left Mrs Agarwal feeling “panicked and stressed”.

Mrs Agarwal remained off sick from October 2018 to January 2019. When she informed the company she would return from sick leave on 2 January, she was sent an email which read “Please ensure you are in the office between 9am and 5.30pm with a 1 hr lunch break.” She replied to this email stating; ““I will only stay until 3pm as previous. I cannot work extra hours.” The company continued to insist that Mrs Agarwal work in the office until 5.30pm and would not allow Mrs Agarwal to return to work unless she agreed to the change.

Mrs Agarwal subsequently brought a claim for less favourable treatment because of pregnancy or illness suffered as a result of pregnancy.

The Employment Tribunal (ET) found that Mr Kanakasahai would not have told Mrs Agarwal she should resign if she had not told him her absence was pregnancy-related. Further, if Mrs Agarwal had not been absent due to a pregnancy-related illness, she would not have been required to work in the office until 5.30pm. There was “no evidence” that the company “intended to take any steps to change her working arrangements until she went off sick for a pregnancy-related reason”. The company “used the opportunity of her seeking to return from that absence” to impose new working hours. The change was to the detriment of Mrs Agarwal who could not work the extra hours in the office because of childcare commitments. The ET concluded that the requirement to work increased hours in the office and Mr Kanakasahai’s remarks that she should resign amounted to less favourable treatment under the Equality Act 2010.

The ET ordered the company to pay £18,400 to Mrs Agarwal, which included sums for loss of earnings and injury to feelings. 

Employers should be aware of the additional protections afforded to pregnant employees under the Equality Act 2010. Under section 18 of the Act, a woman must not be subject to less favourable treatment in the workplace due to pregnancy or illness suffered as a result of pregnancy. Upon learning of an employee’s pregnancy, employers should take steps to ensure the employee does not suffer a disadvantage as a result of her pregnancy. Such steps should include conducting a risk assessment of the employee’s working conditions and may also include making reasonable adjustments as the pregnancy progresses.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.