Manager tells employee “you had a baby at the wrong time”!

Jan 10, 2024

In this article we look at a case where an employer told his employee, during a business restructure, “you had a baby at the wrong time”. This is another case which highlights the importance of employers considering, and consulting with, employees who are on maternity leave when critical business decisions are being made. Ms Yongo successfully claimed maternity discrimination after she was demoted as part of a business restructure, which took place shortly after her maternity leave began.

Case facts

Ms Yongo worked for the Association of Chartered Certified Accountants (“ACCA”) as a Marketing Communications Social Media Manager. She also received an additional allowance for covering the vacant role of Head of Marketing. Ms Yongo began maternity leave on 16 March 2022, and on 29 March 2022 ACCA announced to staff that there would be a restructure. Ms Yongo received a message from a colleague, telling her there was going to be a restructure, and she should join the call planned for later that day. During the call she was made aware that the new organisational structure removed the role of Head of Marketing, the role which she had been receiving an allowance for covering, and there would be a new senior role of “Social Lead”, which she would be required to report to. On 30 March 2022 Ms Yongo spoke to the Director of Marketing (Mr Jervis) and he informed her, that while her substantive role remained safe, the role she did as Head of Marketing no longer existed under the new structure. Ms Yongo immediately raised concerns that this role was very similar to what she had been doing, prior to her maternity leave, and requested he send her the job description. As part of this conversation, the Director of Marketing said, “you had a baby at the wrong time”, which he later alleged was a joke.

In May 2022 she complained to HR that the new role was effectively the role she was already doing, but they insisted that her current role still existed within the business and the role of Social Lead was not the same. Ms Yongo also complained that she had not been included in various team emails, or notified of meetings in the usual way during her maternity leave. Ms Yongo did not receive confirmation of the new job description until July 2022, after chasing the HR team, and by then the new role had already been filled.

In October 2022 Ms Yongo raised a grievance for maternity discrimination, which was not upheld, and in November 2022 she submitted a claim to the Tribunal for direct pregnancy and maternity related discrimination.

The law

Pregnancy and maternity is a “protected characteristic” covered by the Equality Act 2010 (“EqA”), and protects women from being treated less favourably because they are either pregnant or on maternity leave. This also includes less favourable treatment due to a pregnancy related illness. Discrimination can be either direct or indirect, or by harassment or victimisation. Unlike sex discrimination, there is no need for the person complaining of discrimination to provide a hypothetical male comparator, to show a man would have been treated more favourably. The protection starts from the point at which a woman becomes pregnant, until either their maternity leave ends, they return to work, or they leave their job. This is referred to as the “protected period”. Employers should be aware that discrimination outside of this period, if it is connected to pregnancy or maternity, could in some circumstances, still be some other form of discrimination under the EqA.

Whilst the statutory right to maternity leave only applies to employees, the protection from discrimination due to pregnancy and maternity, applies to a wider group including job applicants, workers (agency staff) and some self-employed contractors. For example, replacing an agency worker, who is absent through morning sickness due to pregnancy, could be discriminatory under the EqA 2010.

Other acts which could amount to pregnancy or maternity discrimination include a failure to offer a new job or promotion, if the failure relates to that person’s pregnancy or maternity, forcing them to work during maternity leave, or trying to change their employment terms. Dismissal because of pregnancy, or for a reason connected with pregnancy, would amount to automatic unfair dismissal for employees (not workers). Additionally, anyone dismissed for a fair reason during the protected period, must be given written reasons for their dismissal.

Currently, women who are on maternity leave have extra protection against redundancy, which is a rare example of positive discrimination. They are entitled to be offered any suitable available vacancy with the employer, in priority to other potentially redundant employees during a protected period. From the 6 April 2024, changes in the law will mean that the protected period will be extended to apply during pregnancy, and for a period of 18 months after birth, or placement for adoption, for those taking maternity, adoption or shared parental leave.

Decision

The Tribunal found that ACCA had treated Ms Yongo less favourably due to her maternity leave, as her maternity leave significantly influenced ACCA’s decisions in relation to the restructure. They found that her role prior to maternity was more akin to the new Social Lead role, which was more senior and more highly paid than the job she continued to perform. Additionally, they held that her job description under the new structure, no longer contained significant elements of her pre-maternity job description. The Tribunal made a finding of fact that, the Director of Marketing had significant involvement in the decision making relating to the restructure, and said his comment, whilst not of itself enough to demonstrate unfavourable treatment, “taken in the context in which it was made, is highly relevant”. They concluded that “the fact the comment was made at a time when the restructure and the Claimant’s role were being discussed, evidences the nexus in Mr Jervis’ mind between the Claimant’s maternity leave and her role within the restructure. We find all of Mr Jervis’ resultant actions in respect of the Claimant’s role and the Social Lead role, were tainted by his view that the Claimant had a baby at the wrong time”.

The law around discrimination is extremely complex, and merits careful consideration by employers of all sizes. The compensation award for discrimination is uncapped and could result in a substantial sum being awarded by the Tribunal. Discussion on the myriad of employment law changes due to come into force in 2024, some of which are mentioned above, are outside the scope of this article, but if you would like to discuss anything in this article, please ​contact us to speak to a member of our Employment Team. We would be happy to help you navigate the ever changing landscape of employment law.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Darren Smith

Darren Smith

Partner, Employment Law

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