Compensation for treating pregnant employee unfavourably was inadequate

The Employment Appeal Tribunal (EAT) decision in Shakil v Samsons Limited highlights key issues around protection for pregnant employees. It serves as a reminder for employers on ensuring compliance with the Equality Act 2010 when employees are pregnant and/or suffering from a pregnancy-related illness.

Background

Samsons Limited (Samsons) became aware of Ms Shakil’s pregnancy six months into her employment when, on 30 March 2021, she phoned in and explained that she was feeling unwell with morning sickness.

The next day, Samsons reduced Ms Shakil’s working hours to two days per week.

In September 2021, Samsons sent a letter to Ms Shakil suggesting that she was provisionally selected for redundancy. She was subsequently dismissed by reason of redundancy.

Ms Shakil issued a claim in the employment tribunal that she had been treated unfavourably due to her pregnancy and therefore discriminated against.

Employment Tribunal

Samsons asserted that it was unaware of Ms Shakil’s pregnancy and suggested that her hours were reduced due to a reduction in work and that she was dismissed due to a genuine redundancy situation and/or there were issues with her performance and conduct.

Rejecting Samson’s arguments, the employment tribunal held that the reduction in Ms Shakil’s working hours was because of a pregnancy-related illness and that the reason for her dismissal in September 2021 was actually due to her pregnancy, the redundancy being a sham.

Employment Appeal Tribunal

Ms Shakil appealed to the Employment Appeal Tribunal (EAT) challenging the injury to feelings award in general terms. The employment tribunal had awarded Ms Shakil £5,000 for injury to feelings, without directing itself as to the law concerning awards for injury to feelings.

Citing the case of Vento v Chief Constable of West Yorkshire Police, the leading authority about assessing injury to feelings awards, the EAT held that the analysis of the employment tribunal in relation to the injury to feelings award was wholly inadequate and that the appeal was allowed.

The case was remitted to a different employment tribunal for a new assessment on the award for injury to feelings.

Comment

As the EAT indicated that the injury to feelings award of £5,000 was inadequate, it is highly likely that Ms Shakil will be awarded compensation in excess of this.

Protection for pregnant employees was enhanced in 2024; such that pregnant employees are now protected:

• from being treated unfavourably because of their pregnancy or an illness suffered as a result of their pregnancy. The protection applies from when a woman’s pregnancy begins and ends, under most circumstances, at the end of her maternity leave period or (if earlier) when she returns to work; and
• if a redundancy situation arises during the protected period of pregnancy and it is not reasonable for the employer to continue to employ a relevant employee under their existing contract, the employee is entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after the existing contract ends.

Employers are advised to seek legal guidance when managing pregnant employees and particularly when considering redundancies that affect pregnant employees.

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