Pregnancy Discrimination

In 2020, Nicola Hinds's employer, Mitie, described her as ‘extremely dedicated’ and as having ‘tremendous potential’. A year later, after she informed her bosses of her pregnancy, things deteriorated markedly.

Hinds informed her manager that she was struggling with her workload. Her manager didn’t reply to her but described her in an email to a colleague saying he was ‘frustrated’ at her complaints, saying that the team had been ‘very supportive.’

Following maternity Hinds was, in the employment tribunal’s opinion, inadequately assessed for her needs when returning to work and, the tribunal noted, no risk assessment was carried out.

The tribunal judge felt that she had been stereotyped by her boss as an ‘emotional, hormonal pregnant woman’. The judge felt that there was an inference that Hinds ‘was not fully in control of her emotions because of the pregnancy, and that she was making unreasonable demands as a result’.

Pregnancy discrimination claim results in £351K compensation

Hinds felt so badly treated when she returned to work that she felt forced to resign, an act of constructive dismissal. She brought a pregnancy discrimination claim against her bosses at Mitie.

A compensation hearing awarded Hinds £350,705. Mitie may appeal against the award, nevertheless this case does draw out some important learnings for employers.

Assessing performance pre-pregnancy vs performance while pregnant

If performance has dipped following pregnancy, employers should objectively assess whether the employee’s pregnancy is a factor, and to what extent, or indeed if there are non-pregnancy related reasons for the dip.

Investigations should be sensitively and supportively conducted, with a view to identifying the support necessary to achieve good performance. Managers should be aware that there is a balance between the requirements of work, and being supportive of the need for a safe pregnancy, including enabling the employee to attend antenatal sessions.

If performance has dipped because of the pregnancy, or matters related to it, employers should be reasonable in adjusting their expectations to suit the new circumstances & should try to identify support mechanisms for the pregnant employee.

Identifying support for pregnant women & carrying out a risk assessment

The type of support required will vary from one person to another, and will also depend on the expectant mother’s role and duties.

Many employers are frightened to talk to employees about their pregnancy and the impact it might have on work, but talking to the employee is nearly always the first step, and an honest and supportive conversation will pay dividends – pregnancy is not a taboo subject, and an early conversation will help employees and managers to maintain open and honest communications on the expectant mother’s progress and needs, which will change as pregnancy develops.

Male managers in particular may find such conversations difficult at first, and so following a formal pregnancy risk assessment may well provide a comforting structure for the conversation. As well as being a legal requirement, a risk assessment is a good way to instigate the conversation, and to make sure important considerations are not missed.

Employee has a duty to explore help options (but a little encouragement to do so may not go amiss)

Where a pregnant woman’s performance is suffering because of health impacts, a referral to occupational health, or indeed her own GP may help identify treatments and coping mechanisms.

Managers and pregnant employees should be aware that there is a responsibility for the employee to explore medical help if her performance is suffering due to the impact on her health, and it may be unreasonable of the employee not to explore the help available.

Where an employee is to be encouraged to attend OH or other session, this should be positioned as a reasonable action for her to take, rather than a threat as to what might happen if she doesn’t want to.

Watch for intentional or unintentional pregnancy discrimination

Hinds Vs Mitie is a classic case of an employee being judged as excellent pre-pregnancy and judged poor once her pregnancy was known. Whilst there will be occasions when pregnancy-related health issues will cause an expectant mother’s performance to dip, there are as many occasions when a manager’s inherently discriminatory feelings are responsible for the perceived performance dip.

Senior managers and HR advisors should be watchful for inherent and sometimes unintentional discrimination. Can the dip in performance be defined objectively? Would it be unreasonable to expect a pregnant employee to find some role requirements more difficult, e.g. if they suffer from poor sleep or morning sickness?

In Hinds vs Mitie the tribunal felt that rather than exploring ways to help her cope with her workload, managers instead chose to whinge to each other about Hinds over email, which leads us onto our next learning point….

Remember that emails are disclosable

We have no doubt that Hinds will have submitted a subject access request (SAR) which would have triggered a legal requirement to produce emails not only to and from her, but also about her. Mitie’s managers created a paper trail which combined to show male managers inferring that Hind’s pregnancy meant she was no longer in control of her emotions.

The paper trail was fatal to Mitie’s chances of defending itself, and once again we remind managers and employers that emails cannot be regarded as confidential – even those between outsourced HR advisors and internal managers.

The best rule of thumb with emails (and the same applies to WhatsApps, texts and recorded calls) is, ‘if this could look bad in a court case, don’t write it!’