Tribunals’ approaches to pregnancy-parenting/ workplace conflicts
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Tribunals’ approaches to pregnancy-parenting/ workplace conflicts
Although it is often a considerable inconvenience to an employer to have to make the necessary arrangements to keep a woman’s job open for her whilst she is absent from work in order to have a baby, that is the price that has to be paid as a part of the social and legal recognition of the equal status of women in the workplace.
(Brown v Stockton-on-Tees BC [1988] IRLR 263, HL at 264)
Introduction
Chapter 3 demonstrates how the letter of the law, the standards it sets in terms of the family-friendly package of rights as a whole and the particular opportunities for redress it offers when pregnancy-parenting/workplace conflicts occur, is flawed in a number of ways. This chapter, drawing mainly on the tribunal study, now considers a further dimension of the legal regulation of pregnancy and parenting in the labour market: the effectiveness of law’s application at employment tribunals in England and Wales. This element is concerned with law’s enforcement, a hugely important aspect of any legal regulatory system, not least because it is the process through which legislation is interpreted and, in the higher courts, through which its scope is shaped. In relation to pregnancy and parenthood, academics have often scrutinised the application of legislation that promises to protect pregnant women and new mothers at work and to facilitate work/family reconciliation and found it to be less than adequate. For example, McGlynn (2001 and 2001a) has shown how certain judgments of the ECJ reproduce and legitimise traditional ideologies of the family and motherhood in cases such as Commission v Italy Case C–163/82 [1983] ECR 3273, Hofman v Barmer Ersatzkasse Case C–184/ 83 [1984] ECR 3047, Abdoulaye v Regie Nationale des Usine Renault Case C–218/98 [1999] IRLR 811 and Hill and Stapleton v Revenue Commissioners Case C–243/95 [1998] 3 CMLR 81 (for examples of other critiques of relevant legal application in reported cases, see Boch 1996; Caracciolo Di Torella and Masselot 2002; Caracciolo Di Torella and Masselot forthcoming; Conaghan 1998; Cox 1997; Wynn 1999). More recent decisions, such as Sara Kiiski v Tampereen Kaupunki Case C–116/06 1 [2008] CMLR 5, and Sabine Mayr v Bäckerei und Konditorei Gerhard Flockner OHG ([2008] IRLR 378, ECJ), which extend the rights of women in legal terms but are based upon the constructed connection between women and pregnancy and childbirth, thus linking all aspects of childcare to females, also demonstrate the subtle inadequacy of current approaches to work/family cases at an EU level (see chapter 3).
Whereas the application of the law at the higher level is of fundamental importance, this chapter, by focusing upon employment tribunals, provides an opportunity to investigate the only point at which the majority of those who choose to litigate actually experience the relevant application of the law. Tribunal decisions are of course subject to appeal on points of law and hence subject to clarification and overruling, but most are not appealed and therefore this is arguably one of the most critical sites for the promotion of effective legal application of employment law. Here, we consider an important slice of the application of relevant law at tribunals. The tribunal study assesses pregnancy-related unfair dismissal claims, although most of the claims include an action under the SDA (see chapter 2). Unfortunately, the application of the law relating to parental, paternity or adoptive leave as well as challenges made where requests for flexible working have been denied were beyond the scope of the tribunal study and therefore not investigated here. They do however warrant a similar investigation in order to further our understanding of law’s regulation of pregnancy-parenting/workplace conflicts as a whole. Indeed, a comparison of approaches to the variety of potential family-friendly claims, as well as those made by fathers, mothers and those who adopt, would further test the biases of those who apply the law on a regular basis.
As the previous chapter demonstrates, pregnancy-related dismissals are classed as ‘automatically unfair’ and discriminatory and are, as such, set within a class of dismissals constructed as socially and politically unacceptable management choices. This categorisation suggests a zero tolerance approach to pregnancy-related dismissals and is to be commended. However in practice, in order to proceed with a claim for s 99 ERA pregnancy-related unfair dismissal, at tribunal claimants have to first show that a dismissal actually occurred within the meaning of the legislation (ERA s 95) and, unique to this context, have to raise an inference that the dismissal was related to their pregnancy, childbirth or maternity leave. This latter hurdle is understandable as it is the basis upon which the ‘automatically unfair’ nature of the protection, which is available regardless of service history, is triggered. However, the legislation offers no guidance as to the nature of this hurdle. A tribunal ought, when considering the effective cause of the dismissal, to give a wide meaning to the provisions (Clayton and Vigers [1990] IRLR 177, EAT), but the initial hurdle of providing evidence to satisfy a tribunal that the dismissal was potentially pregnancy-related may be a steep one. Only once this initial inference is raised does the burden of proof shift to the employer who will then have the opportunity to proffer an alternative, non-pregnancy-related, reason for the dismissal in order to rebut that assumption. This problem exists in relation to discrimination claims too and in reality so long as both are pleaded the same evidence will be used for both claims. If unsympathetically interpreted, the need to raise an inference could operate so as to restrict the ability of women to legally challenge employers who have dismissed them for a reason related to pregnancy. It is interesting that 55 per cent of the pregnancy-related claims in the tribunal study that went to a full merit tribunal hearing were unsuccessful. It may be that these 55 per cent of cases were inherently flawed and that the stronger claims were settled prior to a hearing. However, it may also indicate a breakdown in the relationship between the letter of the law and the method by which it is applied.
For the law in this area to be effective, it is crucial that the need to raise an inference and the, subsequent, decision as to the grounds of dismissal are enforced in a manner sensitive to the particular context of the recently dismissed pregnant worker or new mother. This involves an awareness of stereotypical assumptions about pregnant workers and constructions of motherhood, fatherhood and the ideal unencumbered worker and so the sensitivity required is, arguably, over and above that required for ‘ordinary’ unfair dismissal actions. There is evidence of some awareness of the particular concerns raised by these cases, as stated in Yearsley v Greenalls Management Ltd (2102020/97 Liverpool 19/06/97 and 10/07/97 para. 2.7), ‘even well intentioned people may act on the basis of unconscious assumptions or stereotypes about women’. Such an assumption was evident in the attitude of the employer in T Snook v AC Electrical Wholesale Plc, (36218/96 Bedford 03/10/96, 14/11/96 and 15/11/96 para. 21(b)) for example, where he stated in a letter that they were ‘all aware of how women change after the birth of their baby’. Of course such assumptions might also be held by the tribunal panels themselves, as demonstrated in a decision where the tribunal found in favour of the claimant but thought it inappropriate to make an award for future loss of earnings as she would, given that the birth of her baby was ‘imminent’, have ‘plenty of time in which to start making job applications’ (Lovell v Zengin 2503181/01 Newcastle upon Tyne 21/01/02 para. 13). Such a view fails to appreciate, let alone factor into the financial award, either the physical and emotional experience of childbirth and caring for a new baby, or the practical and financial implications of finding appropriate childcare. It legitimates a particular model of early motherhood that perpetuates it as an uncomplicated event for women, alongside which it is assumed they will be able to facilitate re-entry into the labour market.
In this chapter tribunal decisions are explored and two very different and extreme approaches to pregnancy-parenting/workplace conflicts are discussed. These represent the worst-case and the best-case scenarios, rather than an overall division of the decisions as a whole. The first reproduces stereotypes, fails to engage with the particularities of pregnancy/workplace relationships, and hence undermines law’s potential to protect this cohort of workers from dismissal (the restrictive approach). The second, however, is capable of ensuring that the law is enforced in a sensitive manner and hence capable of countering the damaging stereotypes that exist in society (the investigative approach). In order to unpack the intricacies of how these two approaches have operated in practice, the chapter considers how they are manifested in relation to three specific types of case: where the employer claims (a) to have been unaware of the pregnancy at the time of the dismissal; (b) to have dismissed her on the grounds of misconduct or lack of capability; and (c) that there was a redundancy situation. Firstly though, the types of ‘justification’ presented by employers in these cases are outlined and the constructions of these two extreme approaches to dispute resolution are explained in more detail.
Investigative and restrictive: the extremes of law enforcement at tribunals
In practice the explanations presented by employers, other than lack of awareness, are very similar to those presented in ordinary unfair dismissal claims. From the tribunal decision narratives it was possible to establish employers’ responses to the allegation of pregnancy-related unfair dismissal in 1,249 of the claims. Employers often presented more than one justification for dismissal, and the frequency with which a particular justification was presented in the tribunal study is outlined in Table 4.1. Interestingly, it seems that the justification presented by an employer can, statistically, have an impact upon the outcome of the case. The relationship between the justification presented and the outcome of cases was explored statistically (applying logistical regression), revealing that where employers presented misconduct or lack of capability as justification for dismissal, claims were one and a half times more likely than others to fail (exp. 0.433) and that the case was twice as likely to fail if employers claimed they were unaware of the pregnancy (exp. 0.688). However, where the employer argued that it was the absence of the
Table 4.1 Pregnancy-related unfair dismissal claims registered at employment tribunals in England and Wales between January 1996 and April 2002 (that went to full merit hearing): justifications presented by respondents
| Justification | Frequency |
| Conduct | 387 |
| Capability | 272 |
| Redundancy | 336 |
| Claimant resigned | 223 |
| Unaware of pregnancy | 128 |
| Absence caused inefficiency | 55 |
| Business demands | 145 |
| Other reason* | 124 |
| * e.g. temporary employment, health and safety concerns, replacement more efficient | |
This statistical analysis indicates how certain explanations for the dismissal are more likely to succeed, such as misconduct of the employee or lack of knowledge of the pregnancy, than others, such as absence causing efficiency problems. This analysis does not provide any further insight into why some claims fail and others do not. At a crude level, although the result in relation to conduct and capability is an anomaly, these statistical findings simply confirm that knowledge is perceived as important (see Del Monte Foods Ltd v Mundon [1980] IRLR 224, EAT) and that the effects of absence due to maternity leave are irrelevant (see Rees v Apollo Watch Repairs [1996] ICR 466, EAT). However, the narratives of the tribunal decisions provide a further means of assessing employment tribunals’ approaches to these disputes. It is of course impossible to establish any absolute consistency of approach towards all the justifications presented in these claims, not least because of the variable standards and content of reporting (see chapter 2). However, two extreme approaches, best viewed as opposite ends of a continuum rather than two absolute categories by which a case might easily be defined, were identified in the tribunal study and they provide a useful means of unpacking how the application of law in this context can impact upon its scope.
The first approach, the restrictive approach, is characterised by a failure to fully explore the issues surrounding the dismissal, a failure to place the evidence presented by both parties into its broader and more meaningful social context and failure to counter the hidden nature of this type of wrongdoing. Tribunals adopting this approach take a fairly narrow view of events and do not engage with, even implicitly, the experiences of working women who are pregnant or have recently given birth. They do not recognise mothers’ cultural disempowerment by a society that still predominantly defines women by their child-bearing and child-caring capacities. When adopting a narrow view such as this, tribunals in effect deny these women, and society in general for that matter, the opportunity to legally challenge extreme and oppressive acts, such as dismissal, against pregnant workers: acts that sanction the perpetuation of the dominant ideology of motherhood and the ideal unencumbered worker and which cause immense financial and emotional hardship for this cohort of workers and their families.
The second approach, the investigative approach, is characterised by attempts to look behind the evidence, consider all the relevant surrounding circumstances and utilise this knowledge in reaching a decision. Crucially, tribunals adopting this approach are suspicious of any dismissal that occurs during pregnancy or maternity leave and, in that vein, places the onus firmly on employers’ shoulders to rebut any slight indication that the dismissal was pregnancy-related. They are suspicious of the employer from the outset and seek confirmation of his or her justifications for dismissal in what are otherwise viewed as unacceptable circumstances. This latter approach is clearly preferable because it creates a space within which women, who have been disempowered in the workplace and constructed as the vulnerable, weaker sex by virtue of their pregnancy or childbirth and the ideologies so closely associated with that physical state (see chapter 1), can have a voice. This disempowerment relates to the social construction of motherhood that women, once pregnant, embody, and their distance, through that embodiment, from the ideal unencumbered worker (see chapter 1). In essence, these tribunals recognise the ideologically disadvantageous position of pregnant workers per se and have misgivings about her dismissal given this wider context, thus providing a more level playing field for litigants from the start.
The extreme approaches are evident and take on particular manifestations in relation to the specific type of justification that is presented. This is demonstrated in the following outline of how the extreme approaches manifest themselves in relation to three different types of case. In the first, the employer denies knowledge of the pregnancy, and thus suggests that it cannot have been the reason for the dismissal. In the second, conduct and capability, the employer suggests that the claimant herself is to blame for the dismissal as she is incapable of doing her job, or is guilty of misconduct. Finally, in the third example, redundancy, the employer attempts to convince the tribunal that the dismissal is intrinsically related to the needs of the business, manifested in a restructure, or its demise.
Unawareness
Unawareness of the pregnancy was submitted as a justification in 128 of the decisions that were explored as part of the tribunal study. The employer was successful in 69 per cent of these cases and, as stated above, this impact on outcome is statistically relevant. Put another way, in 69 per cent of cases where the employer argued that she or he was unaware of the pregnancy, the claimant was unsuccessful. As discussed in the previous chapter, at the core of law’s approach to this issue of awareness is a belief that an employer’s knowledge of the pregnancy is strongly linked to culpability. The fact that the employer need only demonstrate unawareness of the pregnancy at the time she or he decided to dismiss, as opposed to the time the dismissal actually took place, clearly widens the scope of the justification and reinforces its importance as a precondition of liability. Its potential to quash a claim is demonstrated in the tribunal decision of D Laban-Sharman v Anthony Property Company Ltd (1093/96 London North 13/03/97). Here, the employer argued that the decision to dismiss was taken prior to notification of the pregnancy, and the tribunal, convinced that this was the case, stated (at para. 9) that, ‘although it became clear subsequently that the reason for the claimant’s absence was as a result of her pregnancy, that was not the reason within the mind of [the employer] at the time he reached the decision’ (emphasis added).
Thus, if an employer was unaware of the pregnancy at the time of the decision to dismiss, there is no liability in law. Of core concern in this chapter is how much evidence is needed to establish this concrete justification and what a claimant has to do in order to show that the relevant person was in fact aware of the pregnancy at the crucial time. In F Wright v Amorium (UK) Ltd (t/a Wicanders) (2302259/97 London South 03/11/98) the claimant was dismissed within seven days of officially informing her employer of her pregnancy, which she did by letter. Her employer denied knowledge of the claimant’s condition at the time he decided to dismiss, but fortunately she had sent the letter via recorded delivery and was able to produce tangible evidence of the employer’s knowledge. Most claimants however do not inform employers via letter and hence they can often be disempowered by inability to prove knowledge if it is denied by their employer. An unsympathetic tribunal panel could easily reinforce this lack of power by setting a high benchmark in relation to the establishment of awareness at the time of decision making. In relation to knowledge, the restrictive approach is characterised by an unwillingness to infer that the employers knew of the pregnancy, without strong evidence to the contrary.
In AS Barton v Bass Taverns Ltd (1600256/97 Cardiff 17/06/97) the tribunal found for the employer because, it held, the actual member of staff responsible for the dismissal was unaware of the pregnancy. This was despite the fact that the employer’s wife, who was also his partner in the business, knew of the pregnancy (albeit by hearsay) and that one manager knew and two managers suspected the pregnancy. In TA Pinhey v Mr and Mrs Basterfield (1700676/96 Exeter 16/01/97), evidence of gossip at the residential home where the claimant was employed was not sufficient to convince the tribunal that the employers were certain to have been informed of the pregnancy. The tribunal was not willing to make a finding based upon ‘suspicions as to what chit chat may or may not have gone on’ (para. 7). Similarly in RL Lister v Mr R Morgan t/a ‘Oasis’ (1801179/97 Leeds 27/05/97), the claimant asserted that she had told colleagues about her pregnancy only four days before the dismissal, but the tribunal concluded that it ‘cannot draw an inference that [the employers] knew of the pregnancy’ (para. 10). Although the decisions are, now, in line with recent reported case law on the issue (see chapter 3) they provide evidence of how idle gossip can cost women their jobs and highlight the difficulties women face in attempting to establish concrete evidence of knowledge or suspicion of pregnancy (on the latter see Ramdoola v Bycity Ltd UKEAT/ 0236/04/DM 30 July 2004).
Furthermore, it is not always easy to identify who exactly ought to be informed of the pregnancy once a woman has decided to officially inform her employer. In ML Roberts v (1) Marske Site Service Ltd (2) Marske Machine Co Ltd (3) D Wright (2503092/97 Middlesbrough 20/10/97) the tribunal held that the information about the pregnancy had not penetrated to management, despite the fact that the claimant had informed her supervisor of the situation only a few days prior to the dismissal. Employees clearly cannot assume that the state of pregnancy has been communicated to their employer even if they have relayed the information to their immediate line manager, the person with whom they are most likely to discuss employment-related issues. Again this is in line with a recent EAT decision in which the fact that a line manager knew of the pregnancy was insufficient to fix the employer with knowledge (Eildon Ltd v Sharkey [2004] UKEAT/0109/03 28 July 2004). In this case the EAT suggested that knowledge can only be fixed if the state of pregnancy was in the mind of the relevant decision maker at the time the decision to dismiss was made.
That tribunals are reluctant to assume knowledge in claims of this nature is not particularly surprising, although often disappointing and insensitive to the context as a whole (see chapter 3). Where a restrictive approach is applied however, tribunals appear unwilling to contemplate inferring knowledge even when confronted by certain anomalies. For example, tribunals have been unwilling to infer knowledge of pregnancies even where the employer’s evidence is considered to be ‘vague’ and ‘at variance’ (R L Lister v Mr R Morgan t/a ‘Oasis’ 1801179/97 Leeds 27/05/97 para. 10), or where there is clear evidence of procedural unfairness. For example, in N Howarth v Goldsmith Crewe & Co (Mfg) Ltd (2402899/96 Manchester 13/03/97), the tribunal found for the employer, despite the fact that colleagues had been told of the pregnancy only a week before the dismissal and that the claimant was given no warnings about her alleged incapacity to do the job and was not consulted about the dismissal, which occurred within the first six months of employment. Of course, nowadays, unless such claimants have one year’s employment history, they will not be able to bring an action under the ordinary unfair dismissal rules and are left without any legal redress for the poor dismissal management they have experienced (see chapter 3).
When tribunals apply the law in such a narrow way, employers’ assertions of unawareness are not questioned even when there is evidence to suggest that the claimants were valued employees. In RL Lister v Mr R Morgan t/a ‘Oasis’ (1801179/97 Leeds 27/05/97) a hairdresser was dismissed for poor conduct, despite her work being described as ‘satisfactory’ and even ‘brilliant’ in a letter written to her by her employer prior to dismissal. The fact that dismissals take place within days, sometimes hours, of the pregnancy being announced either to colleagues or to the employers themselves is, when a restrictive approach is evident, equally unlikely to raise an assumption of knowledge. For example, in MP v VJW (21682/96 Bristol 20/05/96) the claimant was dismissed the day after announcing her pregnancy to her employer who, in turn, argued that the decision to dismiss had been taken two months earlier. Is it not suspicious that an employer waited two months to inform an employee of a decision to dismiss? There is little in the decision narrative questioning the assertions of the employer, despite the hasty nature of the dismissal one day after disclosure of the pregnancy. In LV Reckless v The Salvation Army Social Services (17680/96 Manchester 30/10/96) the claimant’s supervisor became aware of her pregnancy at 8.30 am and she was dismissed at 12.45 pm the same day. Her employers allowed the 16-year-old to finish her shift, as a cleaner, before informing her of the decision which, they argued, had been taken at a prior meeting. Neither the urgency of the dismissal nor the fact that the claimant received no formal warnings was capable of swaying the tribunal. It even viewed the lack of consistency in the employer’s submissions as evidence that they were not‘conspiring to deceive’. It held that if that were the case, ‘one would have thought it more likely that the witnesses would have ensured that their evidence was consistent’ (para. 8).
Is it not automatically suspect when a woman is dismissed within a few hours or days after announcing her pregnancy? Or is it to be treated as purely coincidental until proven otherwise? How much influence do the surrounding circumstances have upon the degree to which an employer’s assertion that she or he ‘lacked knowledge’ is taken at face value? This unwillingness to question the employer’s submission in ‘unawareness’ cases, is a core feature of this approach. It is epitomised in CE Brady v D Giacomet (2901149/97 Abergele 20.01/98), a case involving a nanny who was dismissed after only a few months, once she announced her pregnancy. The tribunal stated (at para. 3) that,
It is hardly surprising that when someone advises their employer that they are pregnant and are subsequently dismissed within a matter of days that they jump to the conclusion that the reason for the dismissal is related to their pregnancy. (Emphasis added).