Case Summary
- Under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312), employees who are pregnant or on maternity leave have the right to be offered suitable alternative employment in a redundancy situation, in preference to other employees.
- A lack of direct evidence of injury from discrimination does not prevent an award; the nature of the discrimination itself can indicate the distress caused.
- The burden is on the claimant to provide evidence of injury to feelings and its extent.
- Where a procedural failing rather than a substantive act of discrimination is in question, tribunals are less likely to award high compensation—unless the failing significantly impacts a protected period.
Background
The Claimant, a planner at Eddie Stobart Ltd, informed her employer of her pregnancy in October 2021. In March 2022, the employer announced redundancies, affecting nine roles in her department. As she was due to go on maternity leave, she requested alternative employment under Regulation 10.
The employer created four new roles but required the Claimant to interview, deeming them not immediately suitable. She was unsuccessful in securing a role and later raised a grievance while on maternity leave, receiving no response. During her redundancy consultation, she referenced the grievance, prompting her employer to request that she resubmit it. She was subsequently made redundant in May 2022. Although she did not appeal the decision, she again highlighted her unanswered grievance. The employer later discovered that firewall issues had blocked her emails.
The Claimant brought claims to the Employment Tribunal (ET) for unfair dismissal, pregnancy/maternity discrimination, and six counts of detrimental treatment.
ET Decision
The tribunal dismissed her unfair dismissal claim but upheld her pregnancy/maternity discrimination and detrimental treatment claims. It ruled that the employer had failed to take reasonable steps to address her grievance, despite being made aware of it. The ET found that her maternity leave influenced how the employer handled the matter, awarding her £10,000 for injury to feelings.
Appeal to the Employment Appeal Tribunal (EAT)
The employer appealed, arguing that the award was excessive and irrational. The EAT noted that the Claimant provided limited evidence of injury to feelings but acknowledged that, in certain cases, the nature of discrimination itself can imply emotional distress. However, since the discrimination was not overt—the grievance was blocked due to a firewall issue rather than deliberate action—the EAT determined that the employer’s failing was procedural rather than substantive.
While the employer had missed opportunities to address the grievance, the ET had already ruled that the grievance lacked merit. The EAT reduced the award to £2,000, recognizing that the Claimant had to repeatedly follow up on her grievance while on maternity leave, causing unnecessary stress.
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