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CAN HER PREGNANCY STOP DISCIPLINARY PROCEEDINGS?
March 2010
You started disciplinary action against a poorly performing employee. But she’s now pregnant and says that because of this you cannot take it any further! What has the Employment Appeal Tribunal to say about this little trick?
Trying it on
Where an employee wants to try and evade a disciplinary hearing, the preferred action is to go off sick, usually with work-related stress. But, in a recent case, a more creative employee tried to use her pregnancy to justify why her employer should drop its action against her. The case ended up at the Employment Appeal Tribunal (EAT). So how did it react to her claim?
Bad teacher
In O’Neill v Buckinghamshire County Council 2009, O’Neill (O) began working as a teacher in April 2004. She was difficult to manage and refused to undertake lesson planning in accordance with the school’s curriculum. In May 2006 her employer decided it wanted to bring disciplinary action and began investigating a number of allegations about the lack of standards in her teaching.
You are pregnant, not sick
Due to the summer holidays the disciplinary action was placed “on hold” and just before these started O informed the head teacher she was pregnant. When she returned in September she was told to attend a disciplinary hearing.
Not coming in today
The very next day, she went off sick and this continued right up to her maternity leave. But when this ended in September 2007, rather than return to work (and face the unfinished proceedings), O brought a tribunal claim alleging that she had been the victim of pregnancy-related sex discrimination.
A strange claim
She argued that her pregnancy entitled her to “positive” discrimination, not just protection from less favourable treatment. According to O, when her employer learnt of her condition, it should have cancelled the disciplinary proceedings due to the risk of stress that they presented to her!
Next point
O also claimed that her employer had failed to carry out a pregnancy-related risk assessment. The school had, in fact decided to wait until after the outcome of the disciplinary hearing before this was carried out.
No chance of success. The EAT rejected O’s claim. It said that there was no right to positive discrimination during pregnancy, and employers do not have to drop disciplinary proceedings because of it.
Tip 1. An employee will be on thin ice if she tried it on with this argument. However, do take steps to show that you have limited the “stress”, e.g. make sure you have regular breaks during the hearing and adjourn if it’s lasting a while. This will help show that you have acted fairly, particularly if you decide to dismiss.
Tip 2. The EAT also confirmed that there’s no general obligation on an employer to carry out a risk assessment for a pregnant employee. This will only arise if: (1) the employee notifies you in writing that she’s pregnant/ / (2) the work could involve a risk of harm to her or the baby/ / and (3) the risk arises from either processes, working conditions, or physical biological chemical agents in the workplace.
Source: Tips & Advice Personnel Feb 18 2010
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