Protecting the rights of pregnant women at work

Could a company terminate an agency worker’s role on health and safety grounds without first considering alternative tasks and roles for her, and rely on the exception under Schedule 22 of the Equality Act 2010 to defend a pregnancy and maternity discrimination against it as a result?

The Claimant was an agency worker whose assignment was ended when the company she was assigned to (OCS) discovered she was pregnant. OCS did not alter her role or offer her other work before ending her assignment.

The Claimant made an employment tribunal (ET) claim, alleging that the ending of her assignment in these circumstances was pregnancy and maternity discrimination. The Claimant won. OCS then appealed to the Employment Appeal Tribunal (EAT).

In the ET, OCS tried to defend the claim by relying on an exception under Schedule 22 Equality Act 2010. This says that a person will not discriminate against a worker if they act in accordance with relevant health and safety legislation and act to protect women in relation to pregnancy and maternity. The ET found that the health and safety legislation implicitly required OCS to consider alternative roles or tasks for the Claimant, before terminating her assignment. They had not done so and therefore could not rely on the exception under Schedule 22.

Article 5(3) of the Pregnant Workers Directive permits placing a worker on leave in accordance with national legislation when it is not possible to avoid risks to the worker’s health and safety by altering her working conditions or moving her to another role. As OCS had not taken such measures to avoid risks to the Claimant’s health, they also could not rely on Article 5(3) to defend the claim.

The ET also went on to say that it did not need to make a decision as to whether Schedule 22 complied with Article 5(3) of the Pregnant Workers Directive or not, because the Claimant had won her claim on other grounds. However, it said that there was a “cogent argument” that Schedule 22 does not comply with Article 5(3). This Article requires the person who hires agency workers to place the worker on leave until the risk to her health and safety has ended. ‘Leave’ would not include sending the Claimant back to the agency as OCS had done.

OCS appealed saying that the ET misinterpreted the health and safety legislation, Sch.22 and Article 5. They said that it had incorrectly focussed on whether alternative roles and tasks were considered at the relevant time rather than whether such adjustments could reasonably have been made.

The claim was settled before the EAT hearing. Therefore the ET judgment in the Claimant’s favour still stands.

Taking this case on forms part of our work to ensure pregnant women do not experience discrimination at work.

We wanted to clarify the extent of the application of Schedule 22 the Equality Act 2010, which makes an exception for actions done by employers to comply with health and safety legislation.

This case comes within our work aim where people in Britain have equal access to the labour market and are treated fairly at work.

We funded the Claimant to defend the appeal by OCS.

The case settled on confidential terms before the hearing in the EAT.

The judgment in favour of the Claimant in the ET stands, as the case was settled before the Defendant’s appeal was heard.