Extending a probationary review to a pregnant employee was discriminatory

It’s not uncommon for a woman to accept employment, to commence their job with a new employer and then discover that she is pregnant. There is no obligation on the lady to tell the new employer immediately. In a recent case in the Croydon Employment Tribunal, the administrator who worked at Calibre Building Services told the office manager when she reached 12-weeks into her pregnancy.

Immediately the office manager told her she was unsure what effect this would have to have on her employment and continuation in her role – the employers first mistake – pregnancy should clearly have no effect whatsoever and the woman should merely have been congratulated.

The manager called the recruitment agency asking for a discount on the introduction fee they had paid and discussed the matter with HR. One month later, emails relating to the employee’s performance resulted in her probationary period being extended for a further three months and this happened a second time, with the employee being told she’d restart her probation after her maternity leave.

The manager wrote to the recruitment agency again expressing disappointment. The tribunal found the underlying tone of the letter was that the company would not have recruited the employee had they known she was pregnant. The employment tribunal found that whilst there were legitimate concerns about performance, a great deal of the concerns around her pregnancy were a substantial factor in the extension of the probationary period.

The first extension the tribunal were prepared to accept that performance issues were the reason for the extension, and there was documentary evidence to support this. However, by the time it came to talking about the further extension, the employee was being treated unfavourably for a reason connected with her pregnancy.

It’s clear that employers would need to be careful to have real evidence of poor performance to convince a Tribunal it was necessary to extend the probationary period.

This decision has been publicised in the same week as a European case, where the Advocate General has had to comment on pregnancy at work cases. It has led to comments that the UK law doesn’t actually go far enough to protect pregnant workers. In the Spanish case the court ruled that protection for pregnant workers must be preventative, not merely giving somebody the rights to receive compensation after the event, National Law should provide a means of preventing a dismissal in the first place but that’s not how our law works in the UK.

This raises the spectre of further change in the legislation in the future and the ability of some kind of interim relief mechanism to enable an employee who feels she’s being treated badly in connection with her pregnancy to, for example, ask a tribunal to confirm her employment should be preserved.

This would require statutory changes but it illustrates the direction of travel in relation to this subject area and a sense in which the law is simply not working to protect those that it was designed to protect.

If I was a betting person over the next ten years I would expect us to see legislation strengthened.