This week’s Case of The Week demonstrates that what some colleagues might perceive to be office banter and ‘a bit of a laugh’ may well result in employers paying out a hefty sum in compensation. We also see how an attitude of ‘out of sight, out of mind’ can land an employer in hot water.

Sally Ann Shipp received a Tribunal award because her bosses at City Sprint UK Limited joked about how much weight she would gain whilst pregnant. She also received a significant amount in compensation for direct and indirect discrimination and harassment due to not only how her employers treated her whilst she was on maternity leave but also because they made her redundant.

The Facts

Mrs Shipp was a Marketing Director on a salary of £100,000 per year. In 2018 she became pregnant. Her male colleagues thought it would be a bit of harmless fun to place bets on how much weight she would gain whilst pregnant.  She was also asked whether the baby was planned and when she stopped using contraception. She was also questioned on how she felt her pregnancy would affect her career prospects.

Prior to going on maternity leave she told her senior bosses that she was upset and frustrated and that she found the comments made to be offensive and humiliating. She raised a grievance whilst on maternity leave which was not upheld.

She was due to return to work following maternity leave but the company underwent a major restructure in her absence and they failed to notify her of the changes. She was notified of her dismissal by email out of the blue. She was effectively dismissed for failing to take a lesser role with a £20,000 per year pay cut when her male colleagues who were also given alternative roles did not receive a pay cut. She would also have been required to work in the London office 4 days a week – something she could not do due to childcare commitments.

The Tribunal

The Tribunal concluded that the employer was guilty of both direct and indirect discrimination and harassment.

Whereas a single isolated comment made by one person in an organisation might not have amounted to unfavourable treatment, Mrs Shipp was subjected to a number of comments leading the Tribunal to conclude that they amounted to unfavourable treatment by reason of the fact that she was pregnant. This is direct discrimination. In the alternative, they amounted to harassment related to sex. The comments were unwanted and they had the effect of creating a humiliating and degrading environment for the Claimant. That was her perception and it was reasonable for the conduct of the male employees to have that effect on her.

In addition the Tribunal found that she was treated unfavourably because of her pregnancy and because she was exercising her right to maternity leave.  She was not consulted with regarding the company restructure when she was on maternity leave whereas her employer discussed new roles with the male members of the management team.  There is a stark difference between the way she was treated and the way her colleagues who were working were treated, and the only explanation for Mrs Shipp, the most senior person in the organisation at that time, being totally ignored and written out of the organisation, is the fact that she was on maternity leave. The Tribunal found that these were acts of direct sex discrimination as she was treated less favourably than her male colleagues and the employer has not provided any satisfactory or credible explanation for the less favourable treatment.

The Tribunal found that the company liable for Indirect sex discrimination

Where an employer applies a provision, criterion or practice (“PCP”) in this case, that the Director of Marketing must work in London 4 days a week and that PCP put women at a particular disadvantage when compared to men then there will be a claim for indirect discrimination unless the employer can show that the application of that PCP was a proportionate means of achieving a legitimate aim. In this case the employer failed to show that the PCP was proportionate and therefore liable for indirect sex discrimination.

Furthermore, the Tribunal found that the employer failed to prove that Mrs Shipp’s role was redundant. The employer offered Mrs Shipp the opportunity to carry out the same role but with a different title, lower status and less pay. She, unsurprisingly, refused to do that and was dismissed. There was no potentially fair reason for her dismissal.

Takeaway Point

It goes without saying that no employee should be at the brunt of humiliating and personal comments at work. All employers must ensure that all staff know what is acceptable and what is not. It is important to have appropriate policies and procedures at work and where appropriate suitable training so that everyone knows what is expected of them in the workplace.

It’s interesting to note that some employers adopt the philosophy of out of sight, out of mind. Clearly this doesn’t bode well for them at Tribunals. As an employer you must afford the same opportunities to all employees irrespective of whether they are on maternity leave or not, you must ensure that any condition you apply to their employment will not place them at a disadvantage because of their sex.