Maria Aisha successfully represented a Claimant primary school teacher against a Multi-Academy Trust in claims of pregnancy discrimination, contrary to s.18(2)(a) of the Equality Act 2010, detriment contrary to s.44(1A) of the Employment Rights Act, “ERA”, detriment contrary to Regulation 19(1) of the Maternity and Parental Leave Regulations 1999 (applying s.47C of the ERA), together with a claim of unlawful deduction from wages, contrary to s.13 of the ERA.
In March 2020, the British Government determined that the country be placed into national lockdown as a result of the COVID-19 pandemic.
In June 2020 the Claimant found out that she was pregnant with her first child. The Claimant at the time was working within the reception class of the school. In late June 2020, the Headteacher, began to encourage parents to return their children to school. The Claimant notified the Headteacher that she was pregnant because she was concerned about social distancing and infection. As matters transpired, parents kept their children at home until the start of the new academic year in September 2020.
After the first week back in school in September 2020 it became apparent that proper social distancing was not possible particularly bearing in mind the age of the children and the physical dimensions of the classroom. Given that the presence of young primary school children militated against the efficacy of social distancing, a matter the Headteacher freely conceded in cross examination.
In October 2020, the government introduced a 3-tier system of restrictions as an alternative to a further national lockdown, and by the end of October 2020, the government announced a second lockdown but schools remained open.
Following the October 2020 half term break, the Claimant’s timetable was changed and she taught a Year 2 class for the whole week. She was based in the library in the morning with half of the class and in the afternoon she taught the full class of 30 children covering the Year 2 teacher when she was not present. At other times the Claimant delivered interventions. It was not possible to maintain social distancing, either in class or when the Claimant was conducting her intervention work.
The second national lockdown ended in early December 2020, but Stoke on Trent was placed under Tier 4 restrictions. At this point, the Claimant was in the third trimester of her pregnancy (28+ weeks). Schools were closed for a fortnight over the Christmas break and were due to return for the commencement of the spring term on Monday 4 January 2021.
As of 30 December 2020, the Claimant was anxious about returning to school. The government was closing many schools. Her pregnancy was at an advanced stage and the guidance for pregnant mothers had changed over the course of the pandemic. At this stage, pregnant women were not being vaccinated and the Claimant was aware of stories in the media of serious complications which had occurred with certain mothers and babies as a result of the pandemic. Between 30 December 2020 and 4 January 2021, the Claimant communicated with the Headteacher stressing her concerns about returning to work. On 4 January 2021 the Claimant sent the Respondent her section 44 letter stating that she believed the workplace was unsafe.
The focus of the claims was the Claimant’s absence from work on 4 January 2021 during the COVID-19 pandemic.
The Tribunal in applying the test articulated by Underhill LJ in Rodgers v Leeds Laser Cutting Limited [2023] ICR 356, CA, and adapting that test to cater for the fact that the instant case concerns a claim under s.44 of the ERA as opposed to s.100, the Tribunal drew the following conclusions:
(1) The Claimant did believe that there were circumstances of serious and imminent danger at the workplace.
(2) That belief was reasonable.
(3) The Claimant could not have reasonably averted that danger had she complied with the instruction she had been given by the Respondent.
(4) The Claimant refused to return to the workplace because of the (perceived) serious and imminent danger.
(5) That was the reason for the detriment to which the Respondent subjected the Claimant, namely treating her absence on 4 January 2021 as being unauthorised and failing to pay the Claimant in relation to 4 January 2021.
The Tribunal concluded that, applying s.18(2)(a) of the Equality Act, the detriment referred to at paragraph (5) above also constituted unfavourable treatment and that the Claimant was subjected to that treatment by reason of her pregnancy.
The Tribunal further concluded that the Claimant was subjected to the detriment referred to at paragraph (5) above amounted to pregnancy- related detriment within the meaning of s.47C of the ERA and Regulation 19 of the Maternity and Parental Leave Regulations 1999.
As far as the unlawful deductions from wages claim was concerned the Tribunal concluded that the Claimant plainly worked from home on 4 January 2021, and the wages were “properly payable” to her in respect of the work she did that day.
The case was heard over five days at Birmingham Employment Tribunal. Maria was instructed by Lynne Hardy of the National Education Union and the Multi-Academy Trust had instructed a KC.
A link to the judgment could be found here:
Maria can be instructed by emailing her clerks: civil@cornwallstreet.co.uk