That is the question the Tribunal had to answer in the recent case of Prosser v Community Gateway Association Ltd and they found, on the facts of this case, that it did not.
Ms Prosser was employed by the Association on a zero hours contract, working an average of 4 shifts per month prior to the coronavirus pandemic. Having informed her Line Manager on 13 March 2020 that she was pregnant, she was forwarded a link to the government advice which classified pregnant workers as clinically vulnerable. She was subsequently sent home from her shift upon arrival on 17 March 2020 to protect her from catching the virus at work without, unfortunately, her having received a proper explanation of the state of play in terms of her position, how long it would last and payment during that period.
When Ms Possner requested to return to work in early May 2020, the Association carried out a risk assessment to ascertain the feasibility of a safe return to work. It was concluded that with some amendment of duties to avoid lone working, she could return to work once Perspex screens had been fitted between desks (which were just shy of the recommended 2 metres apart).
Ms Prosser was rostered for shifts towards the end of May but due to delays in making the changes required, she was not allowed to return as planned. She raised a grievance claiming she had been discriminated against on the grounds of pregnancy, citing two issues:
- she had not been paid for the shifts she had been scheduled to work in April 2020; and
- she had not been allowed to return to work.
In response to this, the Association invited her to return to work and asked her to confirm her availability. The Association also carried out a further individual risk assessment as the installation of the Perspex screens was still outstanding. The risk assessment identified it would be safe for her to return to work as the desks had, by this time, been moved further apart (i.e. more than 2 metres). They also acknowledged their error in not paying Miss Prossner and subsequently paid her for the shifts and remaining days she would have attended during that period. She then returned to work in August 2020 and her grievance was dismissed.
Dissatisfied with this outcome, Ms Prosser brought a claim in the Employment Tribunal. She argued that being sent home in March 2020, not allowing a return to work until August 2020 and the delay in her payment constituted direct pregnancy / maternity discrimination.
These complaints were rejected by the Tribunal. Ms Prosser had been sent home because she was classed as vulnerable and the Association did so having been appropriately informed by the Government’s public health advice and regulations at the time. The delay in Ms Prosser’s return was attributable to ensuring that appropriate measures were in place. Neither of these actions therefore constituted unfavorable treatment, and without unfavorable treatment her direct discrimination claim could not succeed. With regards to the delay in payment, whilst it was clear to see how this would be unfavorable treatment, it was held that it was unrelated to her pregnancy as it stemmed from a simple administrative mistake, which was duly rectified.
What have we learned from this case?
Whilst the case is not binding, it should provide some reassurance to employers who sent home pregnant workers to protect them from COVID-19. In our view, as long as an employer can demonstrate that they acted and continued to act in line with government guidance and they took steps, where possible, to facilitate a safe return to work then their actions will likely be justified.
Where the Association erred was in their failure to pay Ms Prosser, which thankfully they rectified. If an employer is unable to avoid the risks they have identified and if they are unable to temporarily amend the employee’s duties and / or working conditions, on terms which are not “substantially less favourable”, the employee must be suspended on full pay.
Risk assessments are key! Employers must assess the specific risks to pregnant employees and for any risks identified, must do all they can to prevent or remove them. For some time now, the government and PHE advice has been that pregnant women should continue to work if its safe to do so, but we must remain alive to the fact that the risks are higher for those over 28 weeks pregnant and that any other pregnancy-related issues specific to the employee must also be taken into account.
If you require any further advice regarding this or any other HR or Health & Safety issue, please contact us on 01942 727200 or firstname.lastname@example.org