There is specific legal protection for pregnant women and new mothers during the “protected period”, which runs from the start of pregnancy until the end of any maternity leave, or 2 weeks from the end of the pregnancy if the worker is not entitled to maternity leave.

Despite this, it is not unheard of for pregnant women and new mothers to suffer poor treatment outside the “protected period”. Where this does happen, employees can look to issue claims in the Employment Tribunal but they must be brought under ordinary sex discrimination and/or unfair dismissal law.

Stokes v Glenham Property Management Ltd

The case of Stokes v Glenham Property Management Ltd [2022] is a worthwhile reminder of the dangers of taking action against pregnant women or new mothers, even where this falls outside the “protection period”.

S worked as a property manageress for a property letting agency for a little over a year. Her first 6 months of work went well and she received a glowing appraisal. A few months later, S notified her employer that she was pregnant. Sadly, a few months later, a routine scan detected no heartbeat. The employer was notified that S had miscarried by her mum. As S had miscarried before 24 weeks of pregnancy, she was not entitled to maternity leave.

Signed off sick

Following the miscarriage, S was then on a pre-arranged period of annual leave, following which her GP signed her off sick and recorded the reason for her absence as “miscarriage” on her fit notes. Shortly before her sick note was due to expire, without warning and without any disciplinary process, S received a letter from her dismissing her. Further mistakes were made here by the employer.

The first termination letter cited various reasons for dismissal, including “not being fit to complete your role” and “sadly we will not accept another sick note”. About 12 days later, S received a second dismissal letter which cited the economic climate as being the reason for dismissal as well as “failure to complete your role due to illness. Resulting in poor performance…”.

As S’s dismissal fell outside the protected period, she could not bring a claim for pregnancy discrimination and so instead brought a sex discrimination claim.

The Employment Tribunal

The Employment Tribunal upheld S’s claim and held that her dismissal had been influenced by the sickness absence she had taken due to miscarriage. The Tribunal noted that, although the reasons given in the two dismissal letters were contradictory, they both referred to S’s absence (which was the result of the female-specific condition of miscarriage).

The Employment Tribunal compared her treatment with that of a male employee who was absent for a period of 2 weeks due to ill health, but who was otherwise performing well. The tribunal had no evidence that such a hypothetical male employee would be dismissed in those circumstances and therefore The Employment Tribunal awarded S around £10,500, including £7,000 for injury to feelings.

Attwells Solicitors Employment Lawyers

This case serves as a timely reminder that where an employee needs time to physically recover and is unwell after a miscarriage, any sickness absence must be treated as a pregnancy-related sickness. Miscarriages can be distressing, and employers can help by providing a supportive environment.

Lloyd Clarke is a Partner of Attwells Solicitors LLP and heads up the firm’s Employment Law Department. Lloyd operates flexible funding arrangements including popular retainer packages, fixed fees, and reduced hourly rates.

Lloyd specialises in advising estate and lettings agencies on all employment and HR matters affecting their sector and has developed a standalone and bespoke retainer package developed for property professionals, the further details of which are available here.

Contact Lloyd Clarke on 01206 239761 for a free consultation.

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