Failure to undertake risk assessment before dismissing employee was pregnancy discrimination (Zakar v OCS Group UK Limited – ET/2416214/2018)

In the case of Zakar v OCS Group UK Limited (ET/2416214/2018) the Employment Tribunal found that the failure to undertake a risk assessment, and subsequent termination of, a worker constituted discrimination.

The facts in Zakar v OCS Group UK Limited

Ms Zakar (the ‘Claimant’) obtained work at Manchester Airport working as a Customer Care Agent (‘CCA’) for OCS Group Limited (the ‘Respondent’) on a contract through an agency called Search Consultancy Limited.  Her role as a CCA involved looking after individuals who needed assistance on arrival at the airport because they had reduced mobility or a temporary impediment.  One of the personal characteristics listed in the job specification was ‘must be able to lift passengers in accordance with manual handling guidance’. The Claimant began work around 23 April 2018.  The role was initially for 8 weeks and she was told that normally she would be advised within those 8 weeks whether the Respondent wanted to keep her on as an permanent employee at the end of the contact.

On 20 May 2018 the Respondent was advised that the Claimant was pregnant and a risk assessment was undertaken.  The Claimant was assessed as being unable to continue in the CCA role and was transferred to work with the concierge team in order to be able to complete her shift. 

On her way home from work that day she received an e-mail from her agency which said that the Respondent had asked them to end her assignment with immediate effect.  The e-mail stated that this was because the outcome from the risk assessment was that she was unable to do her job and there were no other roles available.

The Claimant brought a claim in the Employment Tribunal (‘ET’) for pregnancy discrimination under section 18 of the Equality Act 2010.  She alleged that the Respondent had removed her from the CCA role because she was pregnant, had not transferred her to a concierge role and ended her contract because of her pregnancy.

The Respondent submitted that Schedule 22 of the of the Equality Act 2010 applied.  Schedule 22 offers a defence to a section 18 claim where it can be proven that an act is done for the purpose of protecting a pregnant worker.

The decision of the Employment Tribunal

The ET held that the Claimant had been discriminated against because she was pregnant.  They held that the Respondent had discriminated against the Claimant because of her pregnancy by removing her from the CCA role, not deeming the concierge role suitable and terminating her assignment.

The Respondent had failed to bring themselves within the provisions of Schedule 22 because they had not considered any alteration to the Claimant’s working conditions before dismissing her.  The ET held that implicit in the legislation designed to protect someone from a health and safety risk was the consideration of alternatives in term of tasks and/or full job roles.  It was clear from the Respondent’s evidence at the ET that they had completely failed to consider whether the CCA role could be changed to accommodate the Claimant’s pregnancy and/or whether a concierge role could have been made available to the Claimant rather than ending her contract.  Rather than dismissing the Claimant if the roles could not have been altered to accommodate her pregnancy, the Respondent should have afforded the Claimant leave until the risk to her and her babies health had ended.

Our solicitors’ views on the case of Ms Zakar v OCS Group UK Limited

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case ‘The difficulty in this case for the Respondent was their complete failure to consider any flexibility in respect of the Claimant and her pregnancy and their having treated her differently to how they would have treated an actual employee in the same situation.  It therefore highlights the importance of understanding that agency workers are afforded the same protection as employees under discrimination legislation.’

The decision of the Employment Tribunal in Ms Zakar v OCS Group UK Limited (2416214/2018) can be found here.