When managing people, some areas require greater care and attention due to added complexities and legalities. This highlights the key message that it’s not always one size fits all approach.
When pregnancy is involved, the individual is automatically protected against unfair treatment by the Equality Act (2010). Therefore when employers confuse pregnancy-related illness with performance, they risk not only damaging working relationships but also facing great legal consequences.
A recent case resulting in just over a £73,000 award highlights just how serious this mistake can be.
The case summary
A video operations manager had been working with no indication her role was at risk. However, this changed from the moment she informed her employer that she was pregnant. During her pregnancy, the employee experienced severe morning sickness that affected her ability to attend the workplace. Following medical advice, she requested reasonable adjustments to her working arrangements to allow her to continue working remotely. Furthermore, a flexible-working request was submitted to support and accommodate her pregnancy-related illness.
It was found that, despite initial support, concerns regarding her performance soon grew, and support for the individual became almost non-existent. And while she was away on pregnancy-related sick leave, they took the drastic step of locking her out of their systems. Furthermore, they excluded her from the business, which was swiftly followed by her dismissal.
The Tribunal found that this wasn’t a standard performance-management case. Internal communications suggested the decision to fire her had been made well in advance, and the ‘performance issues’ were largely a smoke screen for the real reason: her pregnancy and related absence.
Overall, this dismissal was automatically unfair and the tribunal concluded that the employee had been subjected to pregnancy and maternity discrimination.
Where employers go wrong
Performance management is a normal and key part of running any business. However, problems arise when employers treat pregnancy-related illness, such as fatigue and sickness, as if it were ordinary underperformance or absenteeism.
The key mistake is often one of assumption: attributing reduced output, missed deadlines, or absence to poor performance rather than considering whether there is a pregnancy-related cause.
This case sends a clear message about the severity of getting this wrong and the seriousness of pregnancy and maternity discrimination in the workplace.
Key takeaways to mitigate your risk
- Pregnancy = Automatic protection : From the moment an employee informs you they are pregnant, they are protected from unfavourable treatment.
- Sickness differs to performance : If an employee is struggling due to pregnancy-related illness, you cannot use those absences as a basis for a performance-related dismissal.
- Don’t pre-judge and create a damaging digital trail: internal emails indicating a dismissal before a formal process has started can serve as clear-cut evidence in a tribunal.
Final note
Ultimately, the £73,000 award in this case was avoidable.
If ever in doubt about how to handle a situation or manage people-issues, seek support. Our team of highly experienced and CIPD qualified consultants can help steer you through best practices and simply avoid you having a very expensive day at a tribunal.
Don’t let a lack of HR expertise become your biggest liability. We’re here to help you get it right the first time .
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- Contact: lucy@mcmillanandassociateshr.com
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