Pregnant worker told to resign after time off because of complications wins discrimination case

Customer service assistant awarded more than £18,000 after employer also tried to terminate flexible working arrangements without agreement

A customer service assistant who was told by her boss that she should resign when complications with her pregnancy caused her to take time off work has won her claim for discrimination.

The East London tribunal ruled that Mrs N Agarwal was treated unfairly by her employer, St John Freight System UK, after her boss told her that she should resign because of her pregnancy and illness as a result of pregnancy. 

Additionally, the tribunal found the freight company had discriminated against Agarwal after changing her hours and work location when she sought to return from a period of pregnancy-related absence. 

The tribunal heard that Agarwal started her employment as a customer service assistant on 7 September 2017. The employment offer letter from the firm said that an agreement had been made between it and Agarwal that she could work in the office from 9am to 3pm, and 4.30pm to 5.30pm from home. There were no references in this letter to this being a temporary arrangement or subject to discretion from the employer.

Agarwal and St John Freight System both told the tribunal that the arrangement for her to work remotely for part of the day “did not work out very well”, and that she needed access to the computer in the office to work efficiently. However, Agarwal told the tribunal that this flexible working arrangement only changed when her employer was informed of her pregnancy, after which she was required to work in the office full time.

On 24 October 2018, Agarwal, who was then pregnant, experienced bleeding and left the office at around 2:30pm to go to hospital. She rang the office and spoke to Mr V Kanakasahai, who, according to Companies House, is a director of St John Freight System UK, to inform him of the reason for her absence. It was through this conversation that she informed him of her pregnancy. 

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During this conversation, Agarwal alleged that Kanakasahai told her she needed to be in the office and words to the effect that if she could not come in, she should resign as he needed staff who could work full time.

Agarwal spoke to Kanakasahai again on 25 October as she was on her way into hospital for a scan. She told the tribunal that the content of the conversation was similar to the conversation the day before. She said she felt panicked and stressed by this, and she told him that she would follow the normal procedure and send him a sick note from her GP, which she then did.

Between October 2018 and January 2019 Agarwal continued to submit sick notes, and on 27 December 2018, emailed her employer to inform them she intended to return to work at the end of her sick leave on 2 January 2019. In a reply the same day, St John Freight System told Agarwal: “Please ensure you are in the office between 9am and 5.30pm with a 1 hr [sic] lunch break”, to which Agarwal’s reply was: “I will only stay until 3pm as previous [sic]. I cannot work extra hours.”

Kanakasahai gave evidence to the tribunal that he had planned to change Agarwal’s hours and working from home arrangement earlier that year and had drafted an email to send to her in either March or April 2018 raising the issues, but after a discussion with another member of staff did not send it.

However, the tribunal found no evidence of any clear instruction or requirement, or even a decision, to seek to formally change Agarwal’s working hours. The tribunal accepted Agarwal’s evidence that, if she had been told that was what was required of her, she would have told her employer that she was unable to do so because of her childcare commitments.

The tribunal also found that St John Freight System “made clear” to Agarwal they would only allow her to return to work if she changed her working hours, and this condition was maintained throughout the period of December to January preventing Agarwal from returning to work.

The tribunal heard evidence that Agarwal received letters dated 5 and 11 November, which referred to her having been selected for redundancy, the timing of which the tribunal found consistent with her account of being told that she should resign if she was not able to attend the office during the hours required by her employer. (The tribunal did not mention the outcome of this letter). As such, The tribunal found that Kanakasahai would not have made his remarks about resigning if Agarwal had not told him that her absence was pregnancy-related.

In her ruling, judge Catrin Lewis said that, if Agarwal had not been off for the pregnancy-related illness, the requirement to work in the office between the hours of 9am to 5:30pm would not have been imposed on her. She said there was no evidence that St John Freight System intended to take any steps to change Agarwal’s working arrangements until she was off sick for a pregnancy-related reason.

“We find that in the absence of that trigger, that is, her pregnancy-related illness, that requirement would not have been imposed upon her,” Lewis said. “The respondent used the opportunity of her seeking to return from that absence to impose a requirement that she worked in the office until 5 or 5:30pm where previously she had been able to work from 9 am only until 3pm.”

Lewis added that the change was a detriment to Agarwal as she was unable to work those hours due to her childcare commitments, and she was additionally fatigued as a result of her pregnancy and was not physically able to increase her hours.

Kate Palmer, HR director at Peninsula, said employers should be aware of the extra protections that pregnant employees have in the workplace. Employees have a responsibility to ensure their health and safety and prevent any unfavourable treatment because of a pregnancy. “When dealing with pregnancy, it is unfavourable treatment, i.e. being disadvantaged, that must be avoided,” she said.

On being notified of a pregnancy, Palmer said employers should consult their risk assessments and make any adjustment needed, while bearing in mind that further adjustments may be needed as the pregnancy progresses. The added many factors affected the number of hours a pregnant employee could work, and that pregnancy was a very "individual process" for each person. As such, good communication was key to maintaining a safe working environment.

The tribunal awarded Agarwal £18,405.97 for loss of earnings and injury to feelings, plus uplift and interest.

Neither Agarwal or St John Freight System could be contacted for comment.