Latest news

Where health and safety and discrimination legislation collide… Ms N Hinds v Mitie Limited

May 21, 2024

Ms Hinds had been employed by Mitie Limited as an Accounts Manager since 13 March 2009. Her most recent 1-2-1 recognised that she was “extremely dedicated”, “always striving to achieve the best possible customer service to her client” and that she had “tremendous potential”.

When she told her employer that she was pregnant (which was “unplanned” and “unexpected”) on 23 July 2020, her employer should have carried out a risk assessment. (They didn’t)

However, when she later emailed her line manager on 16 October 2020, advising him that she had experienced two panic attacks, was “really struggling”, had significantly disturbed sleep and was keen to establish a handover plan, her employer should have done all that was reasonable to remove or prevent exposure to any significant risk. The employer should have considered her working arrangements, hours of work, potential redeployment or, failing that, suspending her on full pay.

Instead, her line manager emailed his colleague, stating, “I was expecting this email as Nicola has become very emotional and tearful, especially over the last week or so. I am very frustrated with this as she is certainly not overworked and we have been very supportive in helping her manage her workload. Can we please have a chat as I suggest we allow her to go next week if she wants, on unpaid leave until her paid leave kicks in. I know we have to deal with this very sensitively and I want to try and support Nicola as much as I can”. Ultimately his email ends with the suggestion that someone else can pick up Ms Hinds’ workload.

As stated above, where an employer has been advised that its employee is pregnant, the HSE advises that it should immediately check the existing workplace risk assessment for any known risks that could affect the employee, taking account of any medical recommendations provided by the employee’s GP or midwife. The employer must then (i) do all that is reasonable to remove or prevent exposure to any significant risk that has been found but must; and (ii) give information to the employee about the risk and what action has been taken. You can find the HSE information here.

A failure to undertake the required risk assessment could be an act of pregnancy and maternity discrimination. Remember that being able to prove less favourable treatment is not enough. In order to succeed with a claim of direct discrimination, an employee must demonstrate that she has been treated less favourably because of her pregnancy. A tribunal will consider the conscious or unconscious reasons behind that treatment.

In this case, the Employment Judge upheld Ms Hinds’ claim of direct pregnancy and maternity discrimination. The Judge stated that her line manager’s response, referenced above, demonstrates that he was stereotyping Ms Hinds as “an emotional, hormonal pregnant woman and that… his description of her as emotional and tearful was dismissive and belittling. The inference was that she not fully in control of her emotions because of the pregnancy and that she was making unreasonable demands as a result.”

Furthermore, the Judge suggested that, rather than genuinely wanting to support Ms Hinds, her line manager instead wanted his company “to be seen to be supportive of her in circumstances where he effectively wanted her out of the way as soon as possible so that others could step up in her place.”

Additionally – with regards to the reasons for her treatment – the Judge found Ms Hinds’ line manager’s denial of any discriminatory intent to be “unconvincing” and that his email evidenced “frustration even irritation” with Ms Hinds who “he perceived as a problem, pregnant employee who was inconveniencing him.”

HR professionals should remember that, whenever an employee advises an employer of her pregnancy, the employer must carry out a risk assessment as detailed above. They should educate managers on the style of assessment and how to conduct such assessments – and ensure that any correspondence is sympathetic.

This case is a good lesson in how not to treat a pregnant employee!

If you have any questions about this, or any other Employment law issue, then please get in touch with the Blackadders Employment team with offices throughout Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

Copyright

Privacy statement

Make an enquiry

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.

Request a call back

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.

Website search

Register for updates

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.

Request a home report for

Where health and safety and discrimination legislation collide… Ms N Hinds v Mitie Limited

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.

Request a viewing for

Where health and safety and discrimination legislation collide… Ms N Hinds v Mitie Limited

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.