Pregnancy and maternity related discrimination
A recent case widely covered in the media reported that a mother had been awarded £185,000 for wanting to leave work an hour earlier each day due to childcare arrangements.
The reporting in the case was certainly headline grabbing and no doubt many employers, managers and HR professionals will have been alarmed at the amount awarded in the case for what appeared to be a common issue that arises in the workplace.
Here we break down the case of Mrs A Thompson v Scancrown Ltd T/a Manors in a little more detail and explain why the employment tribunal award was so high.
Mrs Thompson worked for the estate agent company as a sales manager. In May 2018, she announced her pregnancy and subsequently in October 2018 she went on maternity leave.
Flexible working request
When she returned to work in October 2019, she made a flexible working request to reduce her days of work from five days to four days and her hours of work from 9am to 6pm to 9am to 5pm.
She also raised a grievance as to her alleged ill treatment while pregnant, which was investigated but rejected by the company.
Following both the unsuccessful flexible working request and the failed grievance, Mrs Thompson resigned.
Good at her job
It was generally accepted that Mrs Thompson was good at her job and was paid very well. When she started at the company, she was on a flat rate salary payment of £120,000 for the first year.
Thereafter, her payment was made up of basic pay of £60,000, 12% sales commission and a bonus if sales targets were met.
Following her resignation, Mrs Thompson presented claims to the employment tribunal of:
- Discrimination because of pregnancy or maternity.
- Harassment because of pregnancy or maternity.
- Unauthorised deductions from wages.
- Unfair (constructive) dismissal.
- Indirect sex discrimination.
All but one of the claims failed
All her claims failed except for the indirect sex discrimination claim. In respect of that claim, Mrs Thompson produced in evidence a 2018 survey report from Direct Line insurance headed: ‘Battle of the sexes – mums still bearing the brunt of childcare’.
Within the survey, it was reported that 64% of mothers, compared with 36% of fathers, were still the primary carer for their children – this being the case, despite workplaces increasingly offering flexible working hours, homeworking options and shared parental leave.
Could the company justify the treatment?
The tribunal noted that an indirect requirement to make Mrs Thompson work until 6pm (as with all other staff), which was when her chosen nursery closed, would have placed her at a disadvantage. The issue for the tribunal was whether the company was able to defend itself by justifying the discriminatory treatment and being able to show that the discriminatory treatment was a proportionate means of achieving a legitimate aim.
Many reasons for refusing the flexible working request were given to Mrs Thompson at the time when her request was refused. These included the inability to meet customer demand, cost, inability to reorganise the work among existing staff and the inability to recruit additional staff.
Company failed to convince the tribunal
Despite this, the company failed to convince the tribunal that its reasons were sufficient. The tribunal’s decision for not accepting the company’s position was that each of the reasons did not hold up to scrutiny.
Particularly as Mrs Thompson was able to address and potentially allay each of the company’s concerns regarding her request, the tribunal noted that no real discourse appears to have taken place between Mrs Thompson and the company.
Awarded almost £185,000
It is true that Mrs Thompson was awarded close to £185,000. The tribunal awarded such losses as flowed from the discriminatory treatment but as stated already most of her claims were unsuccessful.
The reason for the high award was based, largely, on Mrs Thompson’s high earnings, including commission and bonuses, before her departure from the company. Mrs Thompson had struggled to find work after leaving her role. She was also awarded £13,500 for injury to feelings.
It is possible that with better discussion regarding the flexible working request, that this case would never have reached a tribunal. Employers should be prepared to properly consider and explain their reasons for refusing flexible working requests.
CEFM offers consultancy to support schools managing flexible working requests.