Peart v Care Preference Limited
The Claimant in this recently reported case started working for the Respondent as a care worker in November 2016. Due to the nature of the work and requirements to be ‘on call’ to cover shifts beyond her usual contracted hours, the Claimant signed an agreement in which she opted out of the 48 hour maximum working week.
In March 2018 (by which point the Claimant was pregnant with her third child), the company advised the Claimant that she would have to pick up extra shifts following the resignation of a colleague. The Claimant advised that she would be unable to help because of her childcare responsibilities – she had two children and her partner was posted away in the armed forces. A week later the Claimant took time off work on the advice of her GP, giving the Respondent 24 hours’ notice of her absence. She also made it clear that she wished to withdraw her previous agreement to work beyond 48 hours per week on the grounds that she was pregnant and it was not safe for her to do so.
The Respondent invited the Claimant to attend a meeting to discuss her refusal to do on call work and failing to follow company sickness reporting procedures. When the Claimant learned her access to log in to the shift rota had been removed she contacted the Managing Director, who advised her that she was suspended from duty.
The Claimant was subsequently dismissed without notice pay. She did not have the requisite length of service to claim ordinary unfair dismissal (2 years) but argued that her dismissal was automatically unfair on the grounds that she had asserted her statutory right to refuse to work more than 48 hours per week. The Respondent argued the reason for dismissal was misconduct, namely the Claimant’s refusal to comply with the contractual requirement to provide on call duties. This, it said, was in line with the firm approach adopted in previous cases involving staff who had not fulfilled their on call duties and was in the interests of providing adequate services to service users.
The Employment Tribunal agreed with the Claimant that this had led to her dismissal and that it was unfair. Furthermore, it was held that Claimant’s dismissal was an act of discrimination in that it amounted to unfavourable treatment because of her pregnancy.
The company was ordered to pay the Claimant over £35,000 in compensation for loss of earnings and injury to feelings. This cases serves as a stark reminder that employers should be careful to consider all factors in a situation involving conduct where a pregnant worker is involved. Whilst a refusal to do something by a worker on the face of it may seem disruptive/amount to a conduct issue, if the worker is exercising a legal right or drawing attention to health and safety concerns relating to what is being asked of them, then knee jerk reactions by the employer about that worker should be avoided and legal advice sought.
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