The Employment Tribunal in Manchester has handed down an interesting decision that, while not binding on other tribunals, is still indicative of the sort of pandemic related cases that are now working their way through the system.
The employee, Ms Prosser, told her employer that she was pregnant on 13 March 2020, in the very early days of the pandemic, 10 days before the first lockdown in England. Her employer sent her back home because, based on the government guidance they had seen, they considered her to be clinically vulnerable. Despite this, and despite the fact she was on a zero hours contract, the employer paid Ms Prosser in full while she was at home.
Ms Prosser said that being sent home was 'unfavourable treatment' based on her pregnancy. This made for a very difficult case. Blocking someone's access to her workplace on the grounds of her pregnancy is usually considered unfavourable treatment. However, the employer was following government guidance in good faith, and it would be a considerable injustice to find that it was unlawfully discriminating against her as a result.
The Tribunal sided with the employer, saying that this was not unfavourable treatment, but was instead treatment carried out as a result of government Covid-19 guidance.
In this case, the Tribunal was probably influenced by the fact that the employer continued to pay the employee's wages. It's surprising that the employer did not rely on its duty to protect the health and safety of its workers under the Health and Safety at Work Act 1974 which, as a result of a provision in the Equality Act 2010, would not have been pregnancy discrimination but, either way, it appears the correct result was reached.
The judgment of the Tribunal is that the claims of discrimination because of sex/maternity, and victimisation, are ill-founded and are dismissed.