Asking a pregnant woman if she is coming back to work IS discrimination, employment judge rules

Asking a pregnant woman whether she is coming back to work before she goes on maternity leave is discrimination, an employment tribunal has ruled.

Laura Jo Duffy, who worked as a PA at Barnet, Enfield & Haringey Mental Health NHS Trust in North London, successfully sued the health service after her boss nodded towards her stomach while asking about her ‘future plans’.

The NHS worker was also asked by a colleague if she had informed managers she would not be returning after maternity leave – even though she had never said what her intentions were, a hearing in Watford was told.

The tribunal ruled this comment was based on a ‘stereotypical assumption about new mothers not returning to work’.

Ms Duffy – who was accused of planning her baby to gain a promotion – is now in line for compensation after winning her claim of pregnancy discrimination. 

Laura Jo Duffy, who worked as a PA at Barnet, Enfield & Haringey Mental Health NHS Trust (headquarters pictured) in North London, successfully sued the health service after her boss nodded towards her stomach while asking about her ‘future plans’

Pregnant employees’ legal rights  

Pregnant employees’ four main legal rights include:

Protection against unfair treatment, discrimination or dismissal 

Employees or potential employees must not be discriminated against due to pregnancy, an illness relating to their pregnancy, including related time off, maternity pay or leave they take, or plan to take.

This law applies regardless of how long a person has been employed for.

Discrimination includes dismissing them, not offering them a job, changing their pay or other terms, forcing them to work while on maternity leave and stopping them returning to work because they are breastfeeding.

Paid time off for antenatal care

Employers are in breach of contract if they change a pregnant worker’s contract terms and conditions without agreement.

Pregnant employees should be granted time off for antenatal care, paid at their normal rate. 

Alongside medical appointments, this also refers to antenatal or parenting classes if they’ve been recommended by a doctor or midwife. 

Maternity leave 

Statutory Maternity Leave is 52 weeks with the first 26 weeks counting as ordinary maternity leave, and the last 26 weeks as additional. 

The employee must take two weeks off after giving birth, if not taking statutory maternity leave, or four weeks if they work in a factory.

Maternity pay or maternity allowance 

Statutory Maternity Pay is provided for up to 39 weeks at 90 per cent of average weekly earnings (before tax) for the first 6 weeks, then £151.97 or 90 per cent of average weekly earnings for the next 33 weeks.

Statutory Maternity Pay will start automatically if the employee is absent for a pregnancy-related illness in the month before the baby’s due date.

Source: gov.uk    

At the time, Ms Duffy was paid as a ‘Band Four’ level employee, meaning she earned up to £25,000 a year.

The NHS worker – whose pregnancy was deemed high-risk – was told in August 2019 there was to be restructuring to the personal assistant team and bosses planned to automatically match her position to a new band five role, where salaries are increased to up to £28,000.

The tribunal heard her colleague, fellow PA Joanne Cleasby, was ‘annoyed’ about this because she thought it was unfair for Ms Duffy to be job matched when she herself was told she would have to apply to be promoted to a higher band.

The hearing was told Ms Cleasby wrongly thought Ms Duffy was receiving preferential treatment because she was pregnant, and complained to colleagues.

In its judgement, the tribunal said: ‘Ms Cleasby made two unwanted comments related to Ms Duffy’s pregnancy, namely: ‘you planned your pregnancy well’, and ‘have you told (your boss) that you won’t be coming back after maternity?’

‘The reason why Ms Cleasby said these things is that she was annoyed and upset about what she perceived was Ms Duffy’s unfair preferential treatment.’

The tribunal ruled the comments were discriminatory because Ms Duffy’s pregnancy was a ‘significant reason’ behind them.

Employment Judge David Maxwell said: ‘The question posed to Ms Duffy as to whether she had told (her boss) she would not be coming back after maternity leave was not based on anything Ms Duffy had said to Ms Cleasby about her intentions, rather it involved a stereotypical assumption about new mothers not returning to work.

‘The comment about Ms Duffy having planned her pregnancy well, involves the proposition that in becoming pregnant, she was motivated by the desire to obtain a workplace advantage, which was a most unpleasant comment to aim at Mrs Duffy in these circumstances with a high risk pregnancy.’

The tribunal heard Ms Cleasby was personal assistant to Senior Service Lead Alan Beaton, and she complained to her boss about Ms Duffy not having to go through the formal promotion process.

Mr Beaton then had a meeting with Ms Duffy in September 2019 to tell her there had been a change to what she had been told and she would have to be interviewed and, if unsuccessful, face re-deployment.

Referring to that meeting, the tribunal heard: ‘[Mr Beaton] said he wanted to discuss her ‘future plans’ and at the same time nodded toward her stomach with regard to her pregnancy.’

This was discriminatory, the panel found.

Judge Maxwell ruled: ‘Mr Beaton made a clumsy enquiry and Mrs Duffy was right to think this inappropriate.

‘The obligation on Mrs Duffy to inform her employers about her intentions was a long way off and he ought not to have referred to this at all.

Ms Duffy - who was accused of planning her baby to gain a promotion - is now in line for compensation after winning her claim of pregnancy discrimination (file photo)

Ms Duffy – who was accused of planning her baby to gain a promotion – is now in line for compensation after winning her claim of pregnancy discrimination (file photo)

‘The three acts were (individually and cumulatively) unfavourable treatment because Mrs Duffy was pregnant.’

In October 2019 Ms Duffy successfully interviewed for the Band Five position, the tribunal heard. But following a dispute over the salary she made a formal complaint and then launched legal proceedings.

The panel ordered that, unless Ms Duffy and and the NHS can come to an agreement, a remedy hearing to determine compensation will be held at a later date.

MailOnline has reached out to Barnet, Enfield & Haringey Mental Health NHS Trust for comment.

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