Oh ****, she’s pregnant

We report on a case where the redundancy of an employee returning from maternity leave was tainted by sex discrimination.

Background

In this case, Fidessa Plc v. Lancaster, Ms Lancaster was made redundant after returning from her second period of maternity leave. When her manager discovered that she was pregnant a second time Ms Lancaster’s evidence was that she was told he had made the the comment in our subject line.

The redundancy exercise Ms Lancaster faced on her return from her second maternity leave involved an interview selection process for an alternative role. This would, in itself, have been legitimate, but a new requirement was placed on the way she would need to work in the new job. Whereas Ms Lancaster had up to this point been able to leave the office at 5.00 p.m. for childcare reasons there was a new requirement for the alternative employment she was applying for; that she leave at the normal time, which was later than 5.00 p.m.

The case found its way to the Employment Appeal Tribunal who criticised the Tribunal for not dealing specifically with the subjective impact being told about the remark had had on Ms Lancaster . While it was acknowledged that the ET might well have thought the point so obvious as to speak for itself, they sent the case back to the Tribunal to make a judgment on this point.

When considering the fairness of the redundancy, the EAT held that this was unfair because it was tainted by indirect discrimination. The requirement that employees should work the full day did have an adverse impact on women, who are more likely to wish to leave work early. The business would therefore be required to justify the requirement, and they could not do so in this case. In other words, they could not explain why it was necessary and proportionate to require women to work the full day in the job they were considering.

Implications

This case is a reminder to employers not to speak what they are thinking out loud, and to be very careful to think through any job requirements that might adversely affect women so that they have a clear justification.


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