Tribunal Slams Employer for Ignoring Pregnancy Risk Assessment and Mishandling Flexible Work Request

In Mrs Limara Davies v Active 8 Managed Technologies Limited, an employment tribunal ruled in favour of the former employee. This came after they discovered her employer had omitted to undertake a pregnancy risk assessment and left her no choice but to resign.

Read on as we establish what happened and uncover the tribunal’s judgment. We will discuss key issues from the case, like the right to a risk assessment for pregnant workers. Once we’ve covered the associated rights, we will outline what those affected can do. 

If you believe your employer didn’t follow a proper risk assessment process, please contact Redmans Solicitors immediately. With our years of experience, we can examine your circumstances and provide specialist advice. Should you have an eligible claim, we could also help guide you along the legal process.

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The Facts in Mrs Limara Davies v Active 8 Managed Technologies Limited

Events Leading to Ignored Pregnancy Risk Assessment

Mrs Limara Davies (“The Claimant”) began working for Active 8 Managed Technologies Limited (“The Respondent”) on 28 May 2018. She started as a company support administrator, working 40 hours weekly from 8.30 am to 5.30 pm daily. On 25 March 2019, she was promoted to company administrator, bringing her daily start and finish time half an hour forward.

Unfortunately, this new role wasn’t what the claimant expected, and she believed she hadn’t received sufficient training. After years of continued support shortfalls, she eventually raised concerns with her line manager, Mr Jordan Clarke, on 20 April 2021. 

However, rather than providing the support requested, the respondent immediately placed the claimant on furlough, telling her to consider her future. This was the second time she’d been furloughed during the Covid-19 pandemic.

Pregnancy Risk Assessment is Overlooked

The claimant discovered she was pregnant in June and disclosed this to her line manager. She then returned from furlough on 19 July but to a distinctly new role. Since the respondent had led her to believe this change was only temporary, she was unaware it would become permanent.

Surprisingly, after the claimant informed the respondent she was pregnant, no pregnancy risk assessment took place. She provided a maternity plan on 28 October, outlining that she wanted to work from home and then use her holidays before her leave began, but the respondent rejected this.

Despite doctors advising remote working due to COVID-19 risks, the respondent didn’t budge, and the claimant contracted the virus on 20 December. Three days later, she was hospitalised due to deteriorated health. Fortunately, though, she successfully gave birth on 21 January 2022.

Mrs Davies Resigns Claiming Pregnancy and Maternity Discrimination

Before the claimant gave birth, little progress was made concerning discussions over her maternity leave. As a result, while she was due to return on 24 October, she received no updates on the changes in the business nor any arrangements to keep in touch.

The claimant had to chase her line manager to discuss her return, and when she eventually received an update, she was told to attend a meeting on 26 September. During the meeting, the claimant made several suggestions about how she could return and work flexibly. At the time, Mr Clarke explained that he’d take her proposal to the Directors but didn’t see it being an issue.

However, two days later, the claimant learned that her proposal had been rejected. The respondent reasoned, “agreeing to this change would have too much of a detrimental impact on the quality of service we expect to deliver.” They added that she was in full-time employment which “simply cannot be carried out in 20 hours per week.”

As such, over the following weeks, the claimant and respondent corresponded as they looked for a solution. Unfortunately, the respondent wouldn’t compromise on their position, forcing the claimant to resign on 27 October. Her employment was officially terminated on 28 November.

Following her resignation, the claimant initiated employment tribunal proceedings. Among other things, she claimed indirect sex discrimination, pregnancy and maternity discrimination, breach of the Flexible Working Time Regulations and constructive unfair dismissal.

The Employment Tribunal’s Judgment

Following proceedings, the employment tribunal outlined the respondent’s provision, criterion or practices (PCPs). These included a requirement to work full-time hours between 8.30 am and 5.30 pm in line with their policies.

Immediately, the tribunal established that such PCPs put “women at a disadvantage compared with men.” Consequently, they had to determine whether the discriminatory effect was justified by the respondent having a proportionate means of achieving a legitimate aim.

The tribunal considered that the respondent was busy following Covid restrictions, meaning they needed full-time employees to provide a quality service. However, they ruled this didn’t justify the disadvantage caused. Notably, they stated that the respondent hadn’t properly considered the feasibility of alternatives, like part-time staff. Therefore, since the PCPs disadvantaged the claimant, the tribunal upheld her indirect sex discrimination claim.

Moving on, the tribunal considered the claims of pregnancy and maternity discrimination. The claimant’s role change, lack of a pregnancy risk assessment, and unsuccessful flexible working request were just some instances of the associated unfavourable treatment found. With this in mind, the claimant’s pregnancy and maternity discrimination claim also succeeded.

Before considering the unfair dismissal claim, the employment tribunal turned to the breach of the Flexible Working Time Regulations. Since the respondent failed to consider the request or handle the process adequately, this formed another successful claim.

Finally, the claim of constructive unfair dismissal was addressed. Here, the tribunal accepted the respondent’s discrimination against the claimant and handling of her request breached “the implied term of mutual trust and confidence.” As such, they stated, “We are satisfied that the Claimant resigned because of this behaviour” and upheld this claim. Following the claimant’s success, a remedy hearing has been scheduled for next January to determine her compensation.

Understanding Your Workplace Rights

In Mrs Davies’ case, several employment law breaches, including a failure to undertake a pregnancy risk assessment, were found. It’s critical that employees understand their rights to ensure they take appropriate action should a violation arise.

Under the Management of Health and Safety at Work Regulations 1999, employers must carry out a risk assessment for pregnant workers. Should they fail to do so, they would breach these regulations. However, such conduct may also amount to unfavourable treatment, potentially breaching the Equality Act 2010 (sometimes labelled the Pregnancy Discrimination Act UK). This was found to be the case in Mrs Davies’s claim.

Another significant issue Mrs Davies faced concerned the respondent’s failure to adequately consider her flexible working request. Since 6 April 2024, employees have a day-one entitlement to request flexible working, with employers having legal obligations over how they’re handled. If a request is denied, employees can appeal it, and should this right be ignored, they can take legal action.

Finally, throughout Mrs Davies’ maternity leave, the respondent failed to stay in touch. Under UK employment law, employers must provide updates on workplace changes and maintain communication. An excellent way of doing this can be through ‘keeping in touch’ days, as they help employees on maternity leave remain engaged with work.

If an employer breaches any of these rights, they may be in violation of laws such as the Pregnancy Discrimination Act UK. Employees should carefully review their employer’s company health and safety policy and relevant workplace laws to fully understand their rights. Gaining this knowledge empowers employees to safeguard their entitlements and confidently seek redress if those rights are violated.

What is a Pregnancy Risk Assessment?

A risk assessment for pregnant workers is a measure employers must take to identify and address potential hazards for such individuals. It ensures safety in aspects like physical workload, exposure to harmful substances, and working hours. If a risk is identified, the employer must make the relevant adjustment, offer suitable alternative work, or suspend the employee on full pay if no safe alternatives exist.

Does my Employer Have to do a Risk Assessment if I am Pregnant?

As mentioned, it is a legal requirement that employers undertake a pregnancy risk assessment. With this in mind, they must complete one.

What Happens if You Don’t Have a Pregnant Risk Assessment?

If an employer fails to complete the risk assessment process, they risk both the health of the pregnant employee and legal repercussions. In the case of Mrs Davies, this failure led to her contracting COVID-19 and her health significantly deteriorating. As for her employer, while the specific remedy is yet to be determined, they will likely have to pay compensation.

For employees affected, they could attempt to rectify the issue either internally or externally. An informal chat or formal grievance could help resolve the matter swiftly and avoid the need for court action. However, if internal avenues fail, employees may want to consider initiating employment tribunal proceedings.

If you have any questions about a pregnancy risk assessment or believe your employment rights have been breached, contact us now. Redmans Solicitors are sector specialists, and following a brief consultation, we can advise on how you could proceed.

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