Extending a probation period WAS discrimination

An article in People Management caught my eye today. It tells of the potential minefield of discrimination when an employee (new or otherwise) tells an employer of their pregnancy.  It would seem in the case below that there were some concerns regarding job performance, however, it would also appear that the Company had concerns about the pregnancy, the Tribunal court is alleging that the reason for the decision to uphold her claim was that the Company may not have employed her had they realised she was pregnant before they offered the role. So whilst there may have been performance issues, as there was a concern regarding discrimination, they found that she was treated unfavourably because of her pregnancy.

If you find that you are in a similar situation, or have concerns, please contact me early on in the process.

The full article is below:

An employer discriminated against a pregnant woman when it treated her unfavourably by extending her probationary period for the second time, Croydon Employment Tribunal has found.

Calibre Building Services employed Charlotte Kimberley as a contracts administrator. Kimberley accepted the role on 8 June 2016, the same day as the offer, with an agreed start date of 20 June. Five days before starting, she discovered she was pregnant. The tribunal agreed that when she accepted the offer, she was unaware of her pregnancy.

She asked the recruitment agency managing the placement if she would still be allowed to begin and was told this did not prevent her from starting work. As Kimberley understood she was not required to tell Calibre of her pregnancy, she started work without disclosing it. In July, she told two colleagues of her pregnancy.

On 25 July 2016, she told office manager Kim Lowe she was 12 weeks pregnant. Lowe was “extremely surprised” and “completely thrown” by the news. She replied that she was unsure what effect pregnancy would have on Kimberley’s employment and her continuation in her role.

Lowe allegedly called the recruitment agency to get a discount on the introduction fee, and contacted HR. She later met Kimberley again and confirmed that her employment would continue.

Of the many facts disputed, Kimberley alleged that Lowe asked why she “couldn’t have been more careful” and why she did not use contraception. However, although Lowe agreed contraception was mentioned, she argued that she was more concerned for Kimberley’s unplanned pregnancy and shared her own experience of unplanned pregnancy, and the meeting ended with both women hugging.

The tribunal accepted Lowe’s evidence that she was genuinely concerned for Kimberley, and had not raised contraception as a criticism. The judgment noted that, although the reference to contraception was “unusual”, it “wasn’t made in an accusatory way or by means of a telling off… but rather as part of [an] empathetic discussion between two women about unplanned pregnancies”.

In August, Kimberley stated that she wished to work up until her February 2017 due date, but later asked to advance maternity leave to December 2016.

However, because of concerns about her performance – raised in emails in August and September and during a meeting – her probation period was extended for another three months. She accepted the objectives she was asked to fulfil. During the second probation period, however, further performance issues arose.

On 20 December, Kimberley’s probation was extended for a second time for ongoing performance concerns, and she was told she would restart her probation after her maternity leave. Discussion also arose regarding the misunderstanding that she had told other colleagues that she had known she was pregnant before accepting the job.

The tribunal accepted that the recruitment agency was heavily criticised and that Kimberley was told she had caused “disappointment” by allegedly not disclosing her pregnancy before accepting the role, and that she “felt forced into agreeing” with this.

Lowe also wrote to the recruitment agency to express her disappointment over the situation and the tribunal found that underlying the letter was that Calibre would not have recruited Kimberley had it known she was pregnant.

The tribunal found Lowe’s alleged accusations on 20 December 2016 were unfavourable treatment because of Kimberley’s pregnancy – but rejected claims that Lowe told her she “should be ashamed of herself” or that she was a “disgrace”.

“[Calibre] did have some ongoing legitimate concerns about [Kimberley’s] performance but, in our judgment, the concerns around her pregnancy were a substantial factor for the extension of the probationary period,” the judgment read.

However, employment judge Harrington concluded that the reason for extending Kimberley’s probation for the first time was performance issues and was not linked to discrimination, as the company successfully argued that there was significant documentary evidence to support a first extension of the probation period because of Kimberley’s performance, and that Lowe did not make any discriminatory comments.

A remedy hearing has been listed.

Under the Equality Act 2010, a woman is discriminated against if she is treated unfavourably because of pregnancy. If a woman proves that an employer has committed a discriminatory act, the tribunal must uphold the complaint, unless the employer proves that they did not commit that act.

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