Covid and discrimination: Employment Tribunal decides

Why now?

Just like most businesses, the English court system has been badly affected by the coronavirus pandemic, with the already lengthy delays in cases being heard only worsening.

In light of this, decisions are just starting to come forth from the Employment Tribunals from the earliest Covid-related cases. While the pandemic is hopefully starting to tail off, these cases may still continue to be illustrative of important points of employment law and how they apply to atypical situations.

The case: maternity discrimination or not?

One of such cases and a new decision, decided in mid-May, is Prosser v Community Gateway Association.

Ms Prosser worked for the respondent housing association (“CGA”) as an advisor on a zero-hours contract, pre-booking from a list of available shifts each month. On 13 March 2020, just as the coronavirus pandemic was taking effect in the UK, Ms Prosser informed her line manager that she was pregnant. Later that week, Ms Prosser was sent home by her manager and informed that she could not return to work while the pandemic was ongoing, as her pregnancy made her clinically vulnerable. While CGA agreed that Ms Prosser would be paid for those shifts she had booked but was now unable to undertake, a genuine mistake by CGA meant that she was not paid until much later.

In early July 2020 Ms Prosser raised a grievance, alleging that the decision to send her home and prevent her from working as well as the delay in paying her amounted to maternity-based discrimination. The grievance was not upheld, and Ms Prosser was subsequently told that she could return to work for certain shifts. CGA had intended that Ms Prosser could return much earlier, as early as May, but subsequently had difficulty putting in place the required social distancing arrangements in the office and sourcing Perspex screens for desks, meaning this was pushed back to August.

Ms Prosser brought an Employment Tribunal claim alleging that, among other things, the decision to send her home, not allow her to return until August, and the delay in paying her in the interim each amounted to maternity discrimination.

The Tribunal’s judgment

The Tribunal rejected Ms Prosser’s claim in its entirety. The decision to send her home, and not allow her to return until the office had been made fully safe, did not amount to unfavourable treatment but rather was done with the intention of ensuring she and her unborn baby were protected. Meanwhile, although the payment delay was unfavourable to Ms Prosser, this treatment was a genuine mistake rather than being because of her maternity.

Implications for employers

This judgment will provide some comfort to employers for whom coronavirus (or other workplace dangers) continue to pose a considerable issue, in that they will be able to act in the interest of their employees’ safety without risking discrimination liability, be it on maternity or similarly disability grounds.

However, it is important to remember that such decisions should be based on a thorough assessment of the risks to pregnant employees, including the risks at different stages of pregnancy. Where risks cannot be mitigated sufficiently for an employee to work, and no suitable alternative role can be found for them on terms that are not substantially less favourable, the employee should be suspended on full pay so that they do not lose out as a result of their pregnancy or disability. The Tribunal in Ms Prosser’s case put it succinctly, saying that “the respondent appeared to do all it could to keep her and her baby safe through the Covid-19 outbreak and paid her generously beyond the terms of her contract.”