Pregnant employee discriminated against after being dismissed for asserting her wish not to work more than 48 hours per week (Ms T Peart v Care Preference Limited (ET/1806064/2018))

In the case of Ms T Peart v Care Preference Limited (1806064/2018), the Employment Tribunal held that the Claimant has been dismissed for asserting a statutory right and also upheld her complaint that her dismissal was unfavourable treatment because of her pregnancy.

The facts in Ms T Peart v Care Preference Limited

Mrs Peart (the ‘Claimant’) was a personal care assistant for Care Preference Limited (the ‘Respondent’).  She was part of a team that provided round the clock care to SU, a wheelchair user who had lifting equipment in her home.

The Claimant’s contract of employment limited the Claimant’s hours to ‘no more than 48 hours a week averaged over a 17-week period’.  In addition, there was an ‘on call policy’ which required the Claimant to participate in emergency cover arrangements should another team member be unable to fulfil their duties.  Previously, the Respondent had dismissed four employees for failing to comply with their on-call obligations.

In December 2018 SU had a hair appointment outside of her home which meant that she needed lifting.  The Claimant was less than 12 weeks pregnant at the time and told the team leader, Miss Gamble, whose response was that she had enough on her plate without the Claimant’s pregnancy on top.

In March 2019, Ms Stauffer, one of the other teams’ members who cared for SU, questioned the Claimant on how she was going to cope when she was more heavily pregnant.

The Claimant has previously accompanied the SU on holiday and there was a possibility that she would again be required to do so.  The Claimant was advised by Mr James, the owner of the Respondent, that in the absence of medical evidence showing she was unfit, she would be required to travel with the SU again.

Subsequently there was then an issue between the Claimant and Respondent when the Claimant informed the Respondent that she wished to be relieved from her on call duties as she could not fulfil them and was unhappy about the number of hours she was being asked to work (most recently two 48 hour shifts in a week).  She missed an on-call shift over the weekend of the 9 March due to issues with childcare.   She then missed another weekend shift on the advice of her GP and went on the e-mail Mr James, advising him that she was no longer willing to work in excess of 48 hours in any given week.

Subsequently, Mr James wrote to the Clamant on 19 March asking her to attend a meeting to discuss the ‘issues’ including a refusal to attend on call duties. Following that meeting the Claimant was summarily dismissed.

The decision of the Employment Tribunal (ET)

The Employment Tribunal (‘ET’) did not accept that Miss Gambles’ single unfortunate remark was sufficient to amount to a contravention of the Equality Act by ‘detriment’ or unfavourable treatment because of the Claimant’s pregnancy.  The same went for Ms Stauffer’s comments in March.   With regards to Mr James’ instruction that she would have to accompany SU on holiday, dispute being pregnant, in the absence of medical evidence excusing her, the ET found this to be a lawful and reasonable instruction.

Section 101A(A) of the Employment Rights Act 1996 (‘ERA 1996’) provides ‘An employee who is dismissed shall be regarded….as unfairly dismissed if the reason (or if more than one, the principle reason)…is that the employee (b) refused (or proposed to refuse) to forgo a right confirmed on him by [the Working Time Regulations].

The Claimant’s complaint that she was unfairly dismissed for asserting a statutory right conferred by the Working Time Regulations 1998 succeeded.  The ET dismissed the Respondent’s assertion that the singular reason for dismissing the Claimant was her failure to confirm her attendance for an on-call weekend shift on the weekend of 9 March.  The invitation to a meeting was not communicated in the calls on the 8 March, but instead followed the Claimant sending an e-mail notifying the Respondent of her sickness absence and putting it in writing that she could no longer work in excess of 48 hour shifts due to her changed circumstances.  The ET held that the principal reason for the Claimant’s dismissal was her proposal that she would no longer work in excess of the Working Time Regulations limit on average working hours.

The ET then went on to consider whether the Claimant’s pregnancy was an effective cause of her dismissal. They held that in all the circumstances of the case the Claimant’s pregnancy and her refusal to work more than 48 hours a week were indivisible and as such the pregnancy was an effective cause of her dismissal.  The Claimant’s complaint that her dismissal was unfavourable treatment because of her pregnancy also succeeded.

Our solicitors’ views on the case of in Ms T Peart v Care Preference Limited

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “Industries such as the care industry whose operating, financial and service user model intrinsically rely on employees working in excess of 48 hours per week would be well served to consider having contingency plans in place should an employee  lawfully want to reverse their authorisation to work those hours”

The decision of the Employment Tribunal in Ms T Peart v Care Preference Limited (1806064/2018) can be found here.