Pregnancy, discrimination, disability
12 May 2018
This article was featured in the June 2018 issue of the magazine.
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Really Easy Car Credit Ltd v Thompson
Employees are protected against discriminatory treatment because of their pregnancy or maternity during the protected period, and any dismissal for a reason connected to their pregnancy will be automatically fair. The Employment Appeal Tribunal (EAT) has passed judgment on whether knowledge of pregnancy requires employers to review a previous dismissal decision.
The employee commenced a three-month probationary period on 20 June 2016. During the early stages of her employment several conduct issues were raised, and her performance was viewed as “average at the best”. In July 2016, the employee discovered she was pregnant but did not inform the employer.
She suffered pains over the last weekend of July which continued on Monday. When she was due to work on Tuesday 2 August, she informed her manager she would be absent as she was going to hospital after suffering pains for a few days. A director was not happy with this because he felt she should have gone to hospital earlier. He formed the opinion he wanted to terminate her employment.
The employee returned to work on 3 August. An incident occurred with a customer and, after speaking to her manager, the employee got upset and went home. That afternoon, the directors decided to dismiss the employee due to her conduct, her poor performance and “emotional volatility”. A dismissal letter was drafted that day but it was decided to hand this to the employee upon her return.
The employee was contacted to discuss her return to work on 4 August. During this conversation, the employee made her manager aware that she was pregnant. The following day the employee came back to work and was given the prepared dismissal letter, with it being emphasised dismissal was not due to her pregnancy. The employee made claims for automatic unfair dismissal and pregnancy discrimination, contending the dismissal letter was back-dated and the decision was made after they became aware of her pregnancy.
When examining the claims, the employment tribunal (ET) was satisfied that the decision to dismiss was reached on 3 August, before the employer had knowledge of her pregnancy, and the reasons for dismissal were her performance and emotional volatility. They went on, however, to find that it was obvious the hospital attendance and emotional state were pregnancy-related once they were aware of her pregnancy. This was sufficient to put the burden of proof on the employer and, since they could not show the dismissal was not pregnancy-related, the claims were successful.
The EAT held the ET had failed to consider whether the reason or principal reason for dismissal was her pregnancy, or because of her pregnancy. In order to prove this, the employer would be required to know the employee was pregnant at the time they made the decision but, once aware, there is no requirement on the employer to go back and revisit previous decisions. As the ET was satisfied the dismissal decision was made before being notified of her pregnancy, there was no unfair dismissal or discrimination up to 3 August. The EAT did, however, remit the case back to a different tribunal to consider whether further decisions were made on 4 or 5 August because of the employee’s pregnancy, and whether any later decision was the reason for dismissal.
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..no requirement on the employer to go back and revisit previous decisions
Capita Customer Management v Ali
In a landmark decision, the EAT have reviewed whether direct sex discrimination occurs when an employer enhances maternity pay but not shared parental pay.
The employer had internal policies for different types of family friendly leave. Under these policies, female staff who took maternity leave were entitled to receive full pay for the first fourteen weeks of leave. They also provided that statutory shared parental pay was paid to all employees taking shared parental leave.
The employee’s wife gave birth to their child and he took two weeks’ paternity leave. His wife was diagnosed with severe post-natal depression and was advised to return to work. The employee submitted a shared parental leave request. As he was aware female staff on maternity leave received higher pay, he asked to be treated the same for the first fourteen weeks of shared parental leave. His request for full pay was rejected so he brought a grievance claiming he had been discriminated against. The grievance was rejected and the employee brought a tribunal claim for direct sex discrimination.
The ET first considered who the appropriate comparator was. It was accepted that the employee could not compare himself with a woman on maternity leave during the first two weeks of leave as this is the protected compulsory maternity leave period which is provided for health and safety purposes. The ET did, however, go on to consider that after this two-week period, i.e. from week three until week fourteen, the employee could compare himself with a hypothetical female colleague on maternity leave as they would both be taking leave to care for the child. As the female on maternity leave would receive full pay for this period, and the male employee on shared parental leave would only receive statutory pay, the employee was directly discriminated against on the grounds of his sex. This decision was appealed.
On appeal, the EAT held the ET had failed to identify the correct comparator as the Equality Act 2010 requires there to be no materially different circumstances present. The purpose of maternity leave and pay is to safeguard the health and wellbeing of a pregnant woman, a woman who has given birth or is breastfeeding which, the EAT found, is materially different to the purpose of shared parental leave which is purely provided to care for the child. This meant the employee could not compare himself to a woman on maternity leave after the two-week compulsory leave period. Instead, the correct comparator was a female colleague who was also taking shared parental leave to care for a child. As the statutory rate of shared parental pay would be paid to both male and female employees on shared parental leave there was no direct sex discrimination.
There is also a provision within the Equality Act 2010 which expressly excludes special treatment provided to females in connection with their pregnancy or childbirth from a direct sex discrimination claim. The EAT held the ET had further erred by finding the additional maternity pay was not special treatment in connection with childbirth.
...paid to both male and female employees on shared parental leave there was no direct sex discrimination
Lofty v Hamis t/a First Café
Under the Equality Act 2010, employees are automatically deemed to meet the statutory definition of disability where they are diagnosed with cancer. The EAT has considered whether ‘cancer’ includes diagnoses described as ‘pre-cancerous’ and ‘in-situ cancer’.
The employee had worked as a café assistant since 2001. A biopsy on a skin blemish in March 2015 led to a diagnosis of lentigo maligna, described by the employee’s consultant as “a precancerous lesion which could result in lesion malignant melanoma” or skin cancer. Following a second biopsy, surgery took place in April with further treatment recommended in May. During August, the employee was signed off work for a four-week period to have surgery. In mid-September, the employee was informed her latest biopsy was clear of cancer but she remained signed off work until 17 December 2015 for a number of health-related reasons, including severe anxiety and further skin grafts. During this time, her employer reviewed her attendance record and attempted to arrange meetings to discuss her absence. This process was concluded when, on 7 December 2015, a dismissal letter was sent to the employee due to her failure to attend these meetings. The employee brought a claim of unfair dismissal and discrimination arising from a disability, contending she was disabled due to her cancer diagnosis.
The ET first considered whether the employee had been diagnosed with cancer. They had sight of GP (general practitioner) reports stating the employee had a “precancerous condition” which would have developed into cancer unless treated. The British Association of Dermatologists produced a leaflet describing lentigo maligna as “one type of the earliest stage of a skin cancer called melanoma”. It further went on to explain this was an ‘in-situ melanoma’ which some doctors would call ‘pre-cancer’. “Some doctors call in situ cancers pre cancer” was also stated on the Cancer Research UK website. A further GP letter clarified the employee “had cancer” and, although this was a “cancer in situ”, there was the potential this would become invasive.
Taking this evidence into account, the ET held the initial medical treatment was due to the employee having a pre-cancerous condition and, from September 2015, her biopsies showed no evidence of skin cancer. In conclusion, the ET held the employee had not been diagnosed with cancer at any stage so she did not have a deemed disability. The employee appealed on the ground the ET had misinterpreted the definition of ‘cancer’.
The EAT highlighted that employment tribunals have to decide whether an individual has cancer based on the evidence before them. However, the EAT went on to comment that there should not be a distinction drawn between different cancers, for example because one is invasive and another is non-invasive, and certain cancerous conditions should not be disregarded because they have not reached a particular stage.
Looking at whether the employee was diagnosed with ‘cancer’, the EAT found the evidence showed she had in situ melanoma meaning there were cancer cells in the top layer of her skin. This meant the employee had been diagnosed with cancer and was disabled under the Equality Act.