Calling pregnant employee ‘emotional’ was discrimination, tribunal rules

The claimant resigned after returning to work following the birth of her child because of how she was treated

Describing a pregnant employee 'emotional and tearful' is pregnancy discrimination, an employment tribunal ruled.

Nicola Hinds, an account manager at the FTSE 250 facilities management firm Mitie, won her employment tribunal for pregnancy discrimination and unfair constructive dismissal.

Gemma Clark, employment lawyer at Wright Hassall, told HR magazine that the case showed how important it is to deal fairly with those who are pregnant or returning from maternity leave.

She said: “This case demonstrates the importance of employers ensuring that those in their workforce who are pregnant or are on, or have shortly returned from, maternity leave are not treated unfavourably as a result of this.

“Because pregnancy and maternity are both protected characteristics, employers have an obligation to ensure employees who are pregnant, on maternity leave or have recently returned from such leave do not suffer detrimental treatment.”

Hinds told the respondents, her managers Ms Harper and Mr Kalley, that she was pregnant in April 2020.

On 16 October 2020 Hinds explained in an email to Harper and Kalley that she was concerned about her workload after suffering two panic attacks in one week.

The email detailed that she was “really struggling” with aspects of the role and that she was concerned that she might become seriously ill with work stress and anxiety.

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The tribunal found that her bosses handled the complaint “ineptly”.

The report noted that Kalley did not respond to Hinds directly, but that he instead emailed his response described as “short, unsympathetic and insensitively expressed” in an email to another colleague. 

The email described Hinds as “very emotional and tearful” and Kalley said that he was “very frustrated” with her.

Kalley also added that “if Ms Hinds was to leave others would be able to pick this up if required”.

The tribunal found that the email showed Kalley’s “frustration, even irritation, with [Ms Hinds] who he perceived as a problem, pregnant employee who was inconveniencing him”.

Gill McAteer, director of employment law at Citation, told HR magazine that training is essential to ensure managers adhere to their legal obligations to support pregnant employees.

She said: “When it comes to supporting new and expectant mothers, managers have a clear [legal] responsibility to carry out and maintain a workplace risk assessment and it’s essential that leaders receive training on this process to ensure policies are being implemented effectively.

“This case serves as an important reminder to employers that having the right policies in place will offer no protection if managers do not receive training on how to implement them and steps are taken to ensure that they are being followed in practice.”

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The tribunal ruled that “Kalley was stereotyping the claimant as an emotional, hormonal pregnant woman” and that “his description of her as emotional and tearful was dismissive and belittling”.

The tribunal report said that, rather than wanting to “genuinely support” Hinds, Kalley wanted “to be seen to be supportive of her in circumstances where he effectively wanted her out of the way as soon as possible so that others could step up in her place”.

The tribunal also noted that the respondents failed to complete a risk assessment in regards to Hinds’ pregnancy, though the organisation had a mandatory maternity guide in place that envisaged a risk assessment for pregnant employees.

Michael Thomson, employment litigation services lead at Foot Anstey LLP, explained that employers should ensure they follow company pregnancy policies to ensure they avoid unfavourable treatment.

Speaking to HR magazine, he said: “Employers need to ensure that they have clear and robust policies in place to manage pregnant employees and, importantly, that those policies are followed, as failing to do so could amount to unfavourable treatment. 

“In addition, employers need to ensure that they maintain communication with the employee and be prepared to be as flexible as possible, such as considering adjusting the employee's role or hours either temporarily or for the duration of her pregnancy.”

Clark noted that employers should be aware of the extension of redundancy protection to pregnant employees or those on maternity leave.

She commented: “On 6 April, new changes will come into force that extend the redundancy protections afforded to employees who are pregnant and returning from maternity leave (alongside other family-related leave). 

“This extension showcases that there is ongoing support to ensure that such individuals receive sufficient protection in the workplace.”

Hinds is in line to receive compensation.