This week the experts, Adam Partington and Esther Smith advise on what to do about discriminatory comments made about a pregnant employee.
The question: Discriminatory comments to pregnant employee
We have heard that a manager within our small company has made some discriminatory comments to a pregnant employee – along the lines that she was pregnant, useless and a waste of space.
These comments resulted in the pregnant employee leaving the room in tears.
We have spoken to the pregnant employee and she is refusing to comment on the matter and we are now going to speak to the possible witnesses (this incident occurred after a team training session had been taken).
Where do we stand if the pregnant employee does not want to take matters further, but we feel that action does need to be taken against the manager?
Legal advice:
Adam Partington, solicitor, Speechly Bircham
You should ascertain that the pregnant employee does not wish to pursue the matter either as an informal complaint or as a formal grievance and consider whether there are any steps which you might consider to help reduce the risk of proceedings.
If established, the manager’s alleged comments are discriminatory. While the employee may not wish to complain, such behaviour is not acceptable. There may be further incidents if no action is taken.
Further, it is not just the pregnant employee about whom the comments were made that could bring a tribunal claim for harassment. It is open to other employees to complain of behaviour that they find offensive even if it is not directed at them.
Additional reasons to deal with the situation are that if unchecked or badly handled, it could create serious problems for the company including poor morale and poor employee relations, loss of respect for managers and supervisors, absence, resignations and damage to company reputation.
Therefore, regardless of the employee’s lack of willingness to pursue the matter, it would appear to be advisable for the company to consider disciplinary action or at least an informal warning. The company should be wary of setting a dangerous precedent, in whatever action it does take. The appropriate action will depend on the company’s disciplinary rules and procedures and you should also have regard to the ACAS Code of Practice.
You should investigate and establish the facts promptly and decide if there is a case to answer. The manager should be invited to a formal disciplinary hearing having been provided with proper details and evidence of the case against him. He should be given the right to be accompanied by a colleague or trade union representative. If disciplinary action is taken, he should be given a right to appeal.
You could also consider reinforcing your equal opportunities policy or drawing up a policy on bullying, harassment and discrimination in the workplace to make it clear to employees that such conduct will not be tolerated. Having a policy, implementing it and making employees aware of it, as well as providing training to managers on harassment and discrimination issues, may also help to limit the company’s liability in the event of a claim.
It is a defence for an employer to show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act or from doing anything of that description, including harassment.
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Esther Smith, partner, Thomas Eggar
Situations can be tricky to handle where employees are not keen to make formal complaints about events or incidents that have occurred. However, it is important to bear in mind that as an employer, you owe a duty of care not just to the pregnant employee but to all your employees, and if you have knowledge of discriminatory practices or behaviour going on in the business, and you do not take appropriate action, there is a real risk that others within the workforce will be affected by such treatment.
Given that you have knowledge of this incident and the behaviour of the manager, you could easily justify taking action against him and investigating, and possibly disciplining, for this issue without a complaint from her. He is likely to use the fact that she didn’t complain in his defence but this is something to take into account when considering an appropriate outcome.
The only practical thing to think about is that the employee who does not want to complain may not be impressed that the company has acted without a complaint from her, and you would need to think carefully about the implications of this and how to handle her feelings if you did decide to proceed with an investigation.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
