According to reports, Torpey alleges that John Robinson, the owner of Jigsaw, vetoed her promotion to the position of CFO after she announced she was pregnant and made comments about the detrimental affect a second child would have on her abilities to carry out her role. Robinson entirely disputes these claims.
It is unlawful for an employer to discriminate directly by treating a female employee less favourably than a male employee because of her sex e.g. if an employer prevents a woman's career progression because she has or may have one or more children. It is also unlawful for an employer to discriminate indirectly by applying a provision, criterion or practice that puts females at a particular disadvantage compared with males, without objective justification.
In addition, as soon as an employee becomes pregnant she enters a "protected period" which continues until she returns to work from maternity leave. During this protected period if she receives unfavourable treatment because of her pregnancy or her statutory maternity leave, this will be unlawful pregnancy and maternity discrimination. A pregnant woman or woman on maternity leave is also protected against being subjected to a detriment. Therefore if an employer fails to promote an employee because of her pregnancy or maternity leave, this will constitute unlawful pregnancy and maternity discrimination. Furthermore, any dismissal for reasons connected with an employee's pregnancy, the fact that she has given birth or the fact that she takes or wants to take maternity leave, will be automatically unfair.
The compensation that can be awarded to an individual for a successful discrimination claim is potentially unlimited, therefore if an employer is found to be at fault this can be very costly.
Mr Robinson is also alleged to have rejected Torpey's suggestion that she return to her role as MD of Kew four days a week, claiming that the role required working six days a week, as her job was too senior to go part time.
All employees are entitled to 56 weeks maternity leave; 26 weeks Ordinary Maternity Leave (OML) and 26 weeks Additional Maternity Leave (AML), regardless of their length of service. On return from maternity leave an employee is generally entitled to return to the same job in which she was employed before her absence on the same or not less favourable terms than if she had not been absent. If the employer does not permit this, the employee may have a claim for pregnancy and maternity discrimination and automatic unfair dismissal and/or unlawful detriment.
An employee returning from maternity leave also has the right to request flexible working. Employers must give proper consideration to any such request, must follow a statutory procedure and can only refuse a request on statutory grounds. Failure to do so may give rise to a sex discrimination claim and an employer will have to be able to show good business reasons for refusing a flexible working request in order to defend any such claim.
Practical tips
Steps that employers can take to avoid the pitfalls of this case include:
Ensuring equal opportunities policies include maternity and pregnancy as protected characteristics and are kept up to date.
Avoid making assumptions and stereotyping employees. Instead judge them based on individual performance.
Provide training to HR and managers on company policies and statutory rights and requirements in relation to pregnancy and maternity leave and flexible working.
Keep employees who are pregnant or on maternity leave up to date with important business developments including vacancies, promotions and training opportunities and consider them equally with other employees for such opportunities.
Ensure that maternity returners are permitted to return to the same role (unless impossible).
Ensure any refusal of a flexible working or jobshare request is properly thought through and supported with evidence as to why it is unworkable in the business.
Joanna Marshall, associate at law firm Charles Russell
