• Phil Coates

Pregnancy Discrimination During COVID-19

Because of the backlog facing employment tribunals at present, cases that relate to events during the early months of the lockdown are only now being heard and ruled on. One such case is that of Prosser v Community Gateway Association Ltd which looked at the way in which employers have reacted to the COVID-19 pandemic’s effects on their workforces, particularly pregnant women.

What happened?

Community Gateway Association (CGA) is a company which supports around 6,000 vulnerable tenants in social housing. It has a centrally employed workforce, and a number of members of staff who have signed zero hours contracts. There are two types of work available, one as an adviser (someone who remains in the office and gives telephone advice) and a responder (someone who attends the tenant’s home in response to a call for help).

Ms Prosser worked as an adviser. She was on a zero-hours contract and booked her shifts from a list of those available each month.

Before the start of the pandemic, her work pattern was, on average, four shifts a month.

On 13th March 2020, as the seriousness of the pandemic was coming to be understood and social distancing measures, including lockdown were being planned and implemented, Prosser told her line manager that she was pregnant.

On 17th March, she arrived to begin a shift, but CGA sent her home to stop her contracting COVID in the work environment.

She was told that she could not return to work while the pandemic was ongoing, because her pregnancy classed her as clinically vulnerable, as per the latest government guidelines.

CGA did not specify exactly how long Prosser would be away from work, but the word “shielding” may have been mentioned. If it was, the tribunal said, it was an error on CGA’s part, likely due to the novelty of such terms in the first couple of weeks of COVID-19.

Prosser did have pre-booked shifts for the rest of March and April which she was unable to fulfil and it was agreed by CGA that she would be paid for the shifts she had booked for April but would now, due to her suspension, be unable to carry out.

In early May, she contacted CGA, asking if she could return to work. A specific risk assessment was carried out to determine whether it was safe for her to do so, and its conclusion was that once Perspex screens had been fitted, she could work day shifts, but not night shifts or visit clients’ homes, both of which would involve lone working.

On the basis of the risk assessment, CGA offered Prosser shifts starting in the second half of May, but it took longer than they had planned to get the Perspex screens sorted – for which, as the tribunal noted, there was clear email evidence - and they had to tell her that she was not allowed back into the workplace.

In July 2020, Prosser contacted CGA to lodge a grievance, saying that when they sent her home, stopped her from working and delayed paying her for the booked shifts, they were discriminating against her on the grounds of her pregnancy.

In response, CGA asked her to return to work and carried out a second risk assessment; it was still waiting for the Perspex screens to arrive, but in the meantime, it had moved the desks further apart so that she could work without the need for screens.

However, because of an oversight by CGA, she was not paid for the booked shifts for several weeks. When the oversight was noticed, it was acknowledged and she was paid the money she was owed.

She returned to work in August and her grievance was dismissed as all the points in it had been dealt with by CGA, or so they thought.

She then brought a tribunal claim, very much along the lines of her original grievance, which said that sending her home in March, not allowing her to return to work until August, and delaying payments for her shift amounted to direct discrimination because of her pregnancy.

What did the tribunal say?

The Tribunal rejected her claim. It said that CGA’s decision to send her home and not invite her back until the necessary safety measures had been implemented in the office were not unfavourable treatment but were carried out to ensure that she and her baby were protected from the coronavirus. They had been taken in light of the information issued by the government regarding public health and regulations connected with the first COVID-19 lockdown.

Although at first sight, the delay in paying Prosser for the shifts she would otherwise have done was unfavourable, it was in fact just an administrative oversight on the part of her employer and was quickly rectified when it was realised what had happened.

The tribunal added:

She was paid the average of her earnings, including time paid for training over that period, for the shifts that she would have been expected to take i.e. four a month, her usual average. Prosser was therefore not left out of pocket. This went beyond her contractual entitlement.”

What are the implications of this decision?

As mentioned earlier, the backlog of tribunal cases means that cases relating to events during the early months of the lockdown are only now being heard and ruled on. As such, and with the lockdown/social distancing restrictions being lifted, the conditions that led to this case may not necessarily arise again. However, employers who take steps to protect pregnant women from hazards to their health will nevertheless be able to take away certain relevant points.

What should employers bear in mind?

Many employers will have struggled during the early days of the pandemic with the continually evolving legal and regulatory approach to combatting the spread of the virus. Most will have implemented safeguards, following government guidance, but some may have inadvertently erred on the side of caution, particularly when it came to vulnerable employees, either those with health conditions who needed to be protected, or – such as Prosser – those who were pregnant.

The judgment in this case will reassure employers who want to be able to act in the best interests of their employees whilst at the same time keeping a wary eye on the possibility of discrimination claims being made against them.

Risk assessments

There is a legal duty on employers to carry out a risk assessment for pregnant employees and – if such risks are identified – do whatever they can to either remove those risks or prevent them occurring. Health and safety guidance on the topic says that pregnant women should carry on working if it’s safe for them; however, when carrying out a risk assessment, it’s important to recognise that after the 28th week of pregnancy, the risks become significantly greater.

Where it proves impossible to mitigate the risks to a degree sufficient for the employee to work safely and there is no alternative role for them on terms that are not substantially less favourable, they should be suspended on full pay.

These protections apply equally to casual staff and zero hours workers.