Employment Tribunal finds that female employee was discriminated against because of her pregnancy (Mrs J McArdle v Asco Joucomatic Ltd)

In the case of Mrs J McArdle v Asco Joucomatic Ltd: 2401431/2017 the Employment Tribunal held that Mrs McArdle had been discriminated against because of her pregnancy and awarded her £7,500 in compensation.

The facts in McArdle v Asco Joucomatic Ltd

Asco Joucomatic Limited (“Asco”) makes industrial coils, valves, cylinders and cabine. Ms McArdle worked for Asco as an agency worker provided by Response Recruitment. She commenced working at Asco in 2012.

In February 2014 allegations were made by agency workers and employees that they had contracted asthma or that they had asthma that had been exacerbated by working conditions. Three employees then pursued work-related personal injury claims against the company, or at least threatened that it was their intention to do so. There was an investigation implemented in order to address the allegations, and the outcome of this investigation was that practical steps should be taken in order to see whether there was a problem, and if there is a problem how to solve it; however, this investigation only looked at respiratory disease but did not investigate the effect on those people who were susceptible to or likely to have asthma.

Asco did not have a rule about the deployment of pregnant workers on site at any point – they would deal with employees based on their particular circumstances and facts. It would, when informed that employees were pregnant, implement a standard risk assessment which stated that they may work on moulding and winding but not on soldering jobs.

On 3 October 2016 Ms McArdle informed her supervisor at work, Mr Ashworth, that she was pregnant. Mr Ashworth acknowledged this, congratulated her, and informed her that she could work on moulding as she had been doing on her previous shift. He informed her that Mr Mannion would do a risk assessment.

Later in the morning on 3 October 2016 Ms McArdle noticed labelling on a chemical compound that she was using that it was potentially harmful to the environment. She brought this to Mr Ashworth’s attention and he stated that Mr Mannion was doing a risk assessment.

Whilst Ms McArdle was working on site that day Mr Mannion approached Mrs Blackledge, the HR Manager, and asked her how he should manage the fact that hey had two pregnant agency workers on site. Mrs Blackledge contacted the agency to see what it proposed, and the agency sought advice from the Federation of Small Business and ACAS. The agency reported back to Mr Mannion and Mr Mannion started to prepare a risk assessment. He also informed Mrs Blackledge that he was going to report that there was an ongoing sampling of air, that there was no guarantee of the safety of pregnant employees, and that Asco was not in a position to offer suitable alternative work. A policy was therefore effectively implemented that Asco was not prepared to engage pregnant workers on site. Before the risk assessment was completed Mr Mannion invited Mr Davies, the manager at the agency, on to site in order to inform him that Ms McArdle’s assignment would be terminated.

Ms McArdle met with Mr Davies at 12.30pm on 3 October 2016, when Mr Davies congratulated her on being pregnant and informed her that her assignment at Asco would end immediately. Ms McArdle’s employment was therefore terminated before the risk assessment was concluded, and before there could be any consultation or discussion with Ms McArdle.

The decision of the Employment Tribunal in McArdle v Asco Joucomatic Ltd

The Employment Tribunal held that Ms McArdle had been discriminated against udner section 18 of the Equality Act 2010:

• failing to consult with her regarding the engagement of pregnant workers;
• failing to provide a risk assessment on 3 October 2016 upon which the respondent claimed to rely, and failing to do so until 10 January 2017;
• failing to follow a procedure or give due consideration to finding an alternative safe place of work; and
• by terminating her assignment in the manner in which it was terminated.

The parties agreed that Asco would pay Ms McArdle £7,500 in compensation.

Our solicitors’ view on McArdle v Asco Joucomatic Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must make sure to undertake risk assessments in the workplace if they are aware that an employee is pregnant, that the employee’s work is of a nature that could involve harm or danger to the health and safety of the new or expectant mother, and that the risk arises from work processes or conditions.”

The judgment of the Employment Tribunal can be found here.