Tribunal Tales – Herring v Lovric & Son

The Claimant in this case was employed by the Respondent as a Sales Assistant in a motor garage. Part of her role involved lifting heavy bundles of newspapers and batches of two litre containers of milk.

On 8 January 2018 the Claimant informed the Respondent that she was pregnant. Subsequently, on 24 February she arrived late to work as she was suffering from morning sickness. She was issued with a verbal warning. No pregnancy risk assessment took place and the Respondent’s line manager did not specifically ask the Claimant if she was able to do all aspects of her role throughout her pregnancy. The Claimant elected not to carry out the lifting of heavy objects that she had been doing previously as she was concerned about the risk to her pregnancy.

In March and April, the Claimant was signed off sick for hypertension in pregnancy. On 17 April the Claimant had a miscarriage. The Claimant remained off sick and on 1 June the Respondent sent her a letter requesting the Claimant’s agreement to obtain an Occupational Health report to help support the Claimant in her return to work. The report stated that the Claimant was not fit for work at that time but noted that with a “supportive and empathic management approach to her return to work” there was a good chance she would be able to return.

After back and forth regarding medical evidence and a grievance by the Claimant that was not upheld the Claimant was dismissed on 8 September on the grounds of capability, specifically her continued absence through ill health.

The tribunal ruled that the Claimant had suffered pregnancy discrimination on two counts: receiving a disciplinary sanction due to a pregnancy-related sickness and the failure to undertake a pregnancy risk assessment. They held that her role did incur a risk to her health and safety because she was expected to transport milk containers that weighed in the region of 16 kilograms. The Respondent had a statutory duty to carry out a risk assessment.

The reason for the Claimant’s dismissal was connected to her pregnancy and was therefore automatically unfair. Her absence was due to illnesses caused by the way her pregnancy ended. Her dismissal was partly because of this, the length of her absence, and because of a reluctance to share medical information from her GP. The reason for her hesitance was due to the “particularly private” and “emotional nature” of the impact of losing her child.

It is crucial for employers to be aware of their obligations in respect of pregnant employees. Issues such as pregnancy-related sickness and risk assessments are basics that should be covered in a maternity policy. This, and making sure that managers are adequately trained on these topics would significantly decrease the risk of successful discrimination claims.

If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.

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