The Claimant worked for the Respondent as a primary school teacher from 2011. The Claimant discovered that she was pregnant in June of 2020 and informed the school. The Claimant discussed her worries around being infected with COVID with the headteacher.
The pupils returned to the classroom in September at which point the Respondent carried out a risk assessment for the Claimant due to her pregnancy. This advised that the Claimant was “clinically vulnerable” and that she should be permitted to work from home as much as possible. It also stated that were she to come into the school she should do “the safest available on-site role, staying 2 metres away from others wherever possible”.
Due to lockdown rules the school was again closed in December and was due to re-open in the new year. The Claimant informed the headteacher that as she was 34 weeks pregnant at this stage she wanted to work from home. She sent her government guidance which stated that one of the categories of people at high risk of severe COVID were women over 27 weeks pregnant and working from home could mitigate the risks.
The headteacher disagreed and stated that the risk assessment should be followed. There was a significant amount of back and forth on this issue. The Claimant’s position was that she was able to work albeit from home and the headteacher argued that the school was safe, and her presence was required.
The headteacher suggested that they met at the school to discuss the way forward but the Claimant did not feel she could do so whilst following the government guidance. She then sent the headteacher a letter referencing section 44 of the Employment Rights Act. This section states that workers must not be subjected to a detriment if they do not attend the workplace due to circumstances of danger which the worker reasonably believed to be serious and imminent.
Her argument was that the danger in this case was serious due to the death toll from COVID and imminent because school children had the highest rate of infection.
The headteacher’s response was to say that since the Claimant was fit to work any absence would be classed as unauthorised and therefore unpaid. From this point the Claimant only attended the school when it was closed.
The Claimant went to the Employment Tribunal and successfully claimed pregnancy discrimination and unlawful deduction of wages. The Tribunal held that the Claimant’s belief that she was in serious and imminent danger was reasonable and the action she took, not attending work, was appropriate in the circumstances. The Tribunal also held that the Claimant had suffered unfavourable treatment due to her pregnancy, so her claim of pregnancy discrimination was successful.
For employers this case highlights the importance of treating pregnant employees fairly and considering their pregnancy and possible implications when making decisions.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.