Early this year we recruited a young woman into a job. We then found out three months later that she was pregnant when she started and had not told us. We tried to get a discount from the recruitment agency, but they refused to do this. We extended her probationary period because of concerns about her performance and, just before she went on maternity leave we extended it again because we were still not satisfied with her. This meant she would have to undergo another probationary period after returning from her maternity leave. Unfortunately her Manager made a few comments accusing her of:

  1. Lying about her pregnancy on the basis that she knew about the pregnancy before accepting the job offer;
  2. Telling other team members of her pregnancy before telling her Manager (which the Manager found disappointing).

We have now received a request from ACAS for Early Conciliation before a claim for discrimination is made.

Peter replies:

Under section 18 of the Equality Act 2010 it will be deemed that an employer has discriminated against a woman if during the protected period in relation to her pregnancy she is treated unfavourably because of her pregnancy. Even if you could satisfactorily justify the performance concerns, the comments are likely to be held to be discriminatory and adversely impact on the fairness of the decision to extend her probationary service. It is likely that an Employment Tribunal would find that she was subjected to unfavourable treatment because of her pregnancy. The concerns expressed by her Manager around her pregnancy are likely to be held to have been a substantial factor, or an “effective cause” for the extension of the probationary period for a second time.

A claimant has the initial burden of proof, but if they can rely on facts about what happened, in this case the manager’s unwise comments, then in the absence of an adequate explanation, a tribunal can conclude that the employer has committed the act of discrimination. The burden of proof then switches to the employer to prove on the balance of probabilities that the treatment of the claimant was not in any way because of her protected characteristic (pregnancy in this case). If it fails then the claimant will succeed.

A woman is not obliged to disclose the fact that she is pregnant before accepting a job opportunity offered to her. If it is shown that pregnancy influenced the decision on whether or not to recruit, or to continue to employ someone, this will amount to pregnancy discrimination. Section 18 is an express prohibition on employers treating employees unfavourably because of their pregnancy. As it is a form of direct discrimination, pregnancy discrimination cannot be justified and the consequences of the pregnancy for the employer, financial or otherwise, are irrelevant in considering whether there has been pregnancy discrimination.

It is unusual for there to be clear evidence of discrimination so tribunals are expected to consider matters in accordance with the relevant burden of proof and who they find most credible, which boils down to which witness, the Manager or the employee they believe more.

Employers, when making decisions such as whether to dismiss an employee or extend a probation period, should ensure that a person’s pregnancy is not a substantial factor in making that decision (even if there are other competing reasons for making such a decision). A decision which is tainted by discrimination can potentially lead to an expensive and time-consuming claim being brought.

We would advise you to seek to settle this matter via ACAS as it will not only be risky to fight it, but potentially bad publicity.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.