Pregnancy Discrimination – Employers beware
Employers are reminded to act with caution in taking any actions in relation to employees who are protected under the Equality Act 2010 when pregnant. The recent case of Shakil -v- Samsons Ltd is a reminder that actions taken by an employer could be discriminatory and result in a substantial award being made by an Employment Tribunal in favour of an employee.
Facts
Ms Shakil had worked for Samsons Ltd for 6 months as an accountant / book keeper when she called in sick due to suffering from ‘morning sickness’. This was the point at which Samsons Ltd became aware of the pregnancy. In apparent retaliation, Samsons reduced her working hours without consultation or notice to only two days a week, criticising her capability and conduct. One month before her maternity leave was about to start, Samsons Ltd placed her at risk of redundancy citing a downturn in work and subsequently dismissed her one day before her maternity leave was due to commence.
The Claim
Ms Shakil’s claim of pregnancy discrimination was successful.
Why?
The Employment Tribunal concluded that Samsons Ltd’s actions were because of her pregnancy-related illness and that the redundancy was a sham motivated by the Claimant’s pregnancy.
The financial award
The Employment Tribunal made an injury to feelings award of £5,000 but in his Judgement, the judge failed to reference the Vento bands in justification of the award and as such the judgement was appealed.
The EAT
The Employment Appeal Tribunal allowed the appeal and held that the Employment Tribunal’s assessment of injury to feelings was “totally flawed” because the Employment Tribunal had failed to apply the Vento guidelines at all.
The Employment Tribunal should have:
(i) identified the evidence given by Ms Shakil about the injury to feeling she suffered as a result of the discrimination (she had set out detailed evidence in a witness statement)
(ii) made findings of fact about the injury to feelings suffered.
(iii) referred to the Vento bands.
(iv) referred to any statutory provision or authority relevant to assessing injury to feelings.
(v) identified the relevant bands for this claim in Presidential Guidance
(vi) stated which band the injury to feelings fell within
(vii) explained why the award was set as it was within the band.
More importantly, the EAT was clear that “This [was] not a case in which there was one-off treatment that would be likely to result only in limited injury to feelings”.
The Vento Guidelines
The Vento Guidelines are used to assess the amount of compensation in cases of discrimination or harassment based on factors such as injury to feelings. They categorize compensation for injury to feelings into three bands (as at April 2024):
Lower Band: For less serious cases, where the act of discrimination or harassment is found to have a limited impact on the claimant. The compensation ranges from £1,200 to £11,700.
Middle Band: For cases that are more serious, but not as egregious, with compensation ranging from £11,700 to £35,200.
Upper Band: For the most serious cases of discrimination, harassment, or victimization, where the impact on the claimant is significant. The compensation in these cases can range from £35,200 to £58,700 or more.
An award of injury to feelings compensates for subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, and depression (not an exhaustive list by any means).
Employers and Employees are reminded that the purpose of the award is to compensate a claimant rather than punish a respondent or deter them from particular courses of conduct; see for example: Ministry of Defence v Cannock [1994] I.C.R. 918
It is imperative to assess the actual impact upon the individual because unlawful discriminatory behaviour may affect different individuals differently, although overt discrimination is likely to increase the level of injury to feelings: and the conduct of the respondent, including defending the claim in an inappropriate manner, can also be a reason for increase to the level of injury to feelings.
Specifically in cases of pregnancy discrimination, the case of Commissioner of Police of the Metropolis v Shaw was clear, that concern for an unborn child can increase the level of injury to feelings suffered as a result of the discriminatory conduct.