Pregnancy Discrimination at Work: A Case Study
| Case Ref: | 3302935/2020 |
| Case Name: | Mrs L Duffy v Barnet, Enfield and Haringey Mental Health NHS Trust |
| Relates to: | Pregnancy Discrimination at work |
| Decision: | Both claims succeed (Click to read details) |
| Award: | £TBC |
In a widely reported case in the media, Laura Duffy, a PA, won a claim for pregnancy discrimination at work, in part after a manager asked her about her future plans whilst pregnant.
Ms Duffy had been employed by Barnet, Enfield and Haringey Mental Health NHS Trust since 2008. During the summer of 2019 she informed her manager that she was in the early stages of a high-risk pregnancy, and this became widely known within her working environment.
At around the same time a restructure within the team Ms Duffy worked in was planned, although this was unrelated to her pregnancy in any way. Ms Duffy brought an array of claims relating to pregnancy and sex discrimination, most of which did not succeed, however three comments made to her during her pregnancy, two by a colleague and one by a manager, did amount to sex discrimination.
A colleague, with whom Ms Duffy did not get on, made a large number of unpleasant comments to her. These were made, the tribunal found, because of the underlying difficult relationship and the fact that the colleague felt Ms Duffy was being unfairly advantaged in the restructure.
However, two of those comments related to the pregnancy itself: on one occasion she asked the Claimant whether management were aware she would not be returning to work after her pregnancy, when Ms Duffy had never said any such thing, and did intend to return to work.
On the second occasion she said that the pregnancy had been timed well, in view of the restructure. The tribunal found that these comments were not made because Ms Duffy was pregnant; after all they occurred within a context of many unpleasant comments being made, some of them more serious.
However because the words used which referred to pregnancy, there was a relationship. Or to use their description: “if because of upset or annoyance a person makes unpleasant remarks and when so doing, reaches for a protected characteristic, then what is said may be discriminatory”.
The other remark came from a meeting with a manager about the restructure, which ended with him asking her what her “future intentions” were, whist nodding at her stomach. It is this that has gained widespread media attention, much of it focused on claiming that an employer cannot ask a pregnant woman about her plans, but this account is misleading.
The comment was made in a meeting in which Ms Duffy – who had previously been informed she was being slotted into a role in the new structure – was now being told something quite different, and that there was in fact a real risk of her being redeployed and being made redundant.
The comment was also made whilst she was still in early pregnancy, and as the tribunal noted, occurred weeks before she was required to inform her employers about her plans. Further, asking this question whilst nodding at her stomach, was, as Ms Duffy described it “inappropriate”.
An employer is allowed to ask a pregnant woman about her plans with respect to leave and other matters, but needs to act sensitively regarding when and how this occurs, and should not jump the gun in asking these questions in early stages of pregnancy. Ms Duffy successfully represented herself before the tribunal. Compensation will be decided at a later date.
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