Benton v Care Needs Ltd – employer harassed and victimised employee because of IVF treatment

In the latest of our posts on cases from the Employment Tribunal archive, we examine the case of Benton v Care Needs Ltd ET/2406088/2010, a pregnancy discrimination case.


Mrs Benton complained to the Employment Tribunal that she had been dismissed by her employer, Care Needs Ltd, because of her IVF treatment rather than (as asserted by the business) because of  a genuine redundancy situation. She also claimed that she had been victimised by the business because of a complaint she had submitted regarding treatment that she had been subjected to and, further, that she had been harassed by the owner and colleagues because of the IVF treatment and a miscarriage she had suffered.

The Employment Tribunal held that Ms Benton had been subjected to one incident of harassment, when she had been called upstairs by the owner of the business and berated. The Tribunal also found that the failure to provide her with a payslip was a direct result of her Tribunal claim and that she had therefore been subjected to victimisation.

The Tribunal held, however, that she had not been dismissed because she was, or might be, pregnant, but because of a genuine redundancy situation that existed at time, as evidenced by the closure of one of the business’ offices.

Factual background in Benton v Care Needs Ltd

Ms Benton commenced employment with Care Needs Ltd in July 2009 as an office assistant. In November 2009 she started undergoing IVF treatment and in December 2009 she asked for four days off work to undergo treatment, agreeing to take four days’ holiday. In January 2010 she unfortunately suffered a miscarriage and explained to work what had happened.

The following week Ms Burgess, assistant manager, told Ms Benton that should she wish to take any more time off work for IVF treatment she would have to take it as holiday. Ms Benton also noticed that she received less pay than usual that week and, after seeking clarification as to why, was told that she had taken more days than she had been entitled to. Ms Benton subsequently made a number of complaints regarding the treatment that she had been subjected to, including that shortly after her miscarriage she had been berated by the owner, that the owner had told her she looked ill and awful, that it had been suggested to her that the company was being kind in allowing her to take time off for IVF treatment, and that the owner referred to her as a “dippy twat” when she made a mistake.

In mid-May 2010 Ms Benton was called into a meeting and told that she was at risk of redundancy because the office she was based in was closing. In June 2010 Ms Benton was called into a meeting and told that she was being made redundant. After her redundancy Ms Benton asked for a payslip and a spreadsheet of her earnings but was told she could not.

Ms Benton made Employment Tribunal claims for direct sex discrimination, harassment related to her sex, and victimisation.

Employment Tribunal’s decision

The Employment Tribunal dismissed Ms Benton’s direct sex discrimination claim but upheld her claims for harassment and victimisation.

In respect of her direct discrimination claim, the Tribunal held that the real reason for Ms Benton’s dismissal was in fact redundancy, finding that the closure of the office pointed to a genuine redundancy situation. The Tribunal also found that the reduction of her pay following her IVF treatment was because of confusion about her holiday entitlement rather than detrimental treatment afforded to her because of her IVF treatment itself.

The Tribunal held that the owner berating Ms Benton shortly after her miscarriage constituted harassment, as the conduct was related to Ms Benton’s sex (as only women can have IVF treatment), was unwanted, and had the effect of causing an offensive working environment for her.

With regards to the claim of victimisation, the Tribunal held that the failure to provide Ms Benton with a payslip was victimisation, as the Tribunal held that the refusal to provide her with one was linked to the Employment Tribunal claim she had made.

Our solicitors’ comments

Chris Hadrill, an employment solicitor at Redmans, commented on the case: “If an employee makes an allegation of discrimination and/or brings a claim in the Employment Tribunal then their employer should take care to ensure that it can justify any action (or omission) which might be deemed to be a detriment to the employee – a failure to take such care could, as in this case, lead to a potentially successful victimisation claim being made.”