HR assistant was unfairly refused pay rise because of impending maternity leave, tribunal rules

Judge finds evidence of ‘overt discrimination’ and says claimant’s pregnancy was ‘tainted with mixed feelings’ as a result

Credit: Damircudic/Getty Images

An HR assistant at a construction company was unfairly refused a wage increase because she was about to go on maternity leave, a tribunal ruled. 

The East London Hearing Centre heard that Miss L Musguin felt “disillusioned” by the decision of her employer, Breyer Group Plc, to refuse her pay rise request because she would only be working for four months before going on leave.

Judge Alison Russell said that “instead of seeing her pregnancy and impending maternity leave as a happy time to be enjoyed, it was tainted with mixed feelings as it was the stated cause of the reason she was initially refused the pay rise”.

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Musguin started her employment as an HR adviser at Breyer Group on 3 July 2017. In January 2018, her pay was increased to £30,000 per annum in respect of a 40-hour working week.

She went on maternity leave with her first child from 17 June 2019 until 18 August 2020 and, while on leave, the more junior HR coordinator also went on maternity leave and the company recruited a fixed-term employee. 

Breyer Group’s intention was to pay £27,000 per annum to the person covering. The successful candidate, identified only as ‘Fiona’, asked for £28,000 and the company agreed in order to fill the vacancy. When Fiona became employed permanently, her salary decreased to £27,000.

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Although unclear when, Musguin found out how much Fiona was being paid. The tribunal heard that she found it “deeply unfair” and the fact that there was only a £3,000 difference between her salary as an HR assistant compared to Fiona’s more junior role “undervalued her work and her experience”

Musguin discussed this with head of HR, Mr Rayat, and he agreed to make a business case for a raise, although the tribunal found that it was a “very generalised discussion” prompted by Musguin’s request for a wage increase.

On 24 August, Rayat had his regular weekly HR meeting with the finance director, Mr Fisher and managing director, Mr Breyer. Musguin had told Rayat that she was pregnant again and she gave him permission to share this in the meeting.

Musguin told the tribunal that she spoke to Rayat after the meeting and he said he made the request for a pay rise but it had been refused by Fisher because she was due to commence a period of maternity leave and she “would only be in the business for four months [so] a pay rise was not feasible”.

She also told the tribunal that he shared this with her because they were friends, he respected her and he did not want to lie to her.

Rayat told the tribunal that the request was refused on the grounds that the business could not support it at that time, and that he only told her the initial request had been rejected.

The tribunal sided with Musguin’s account as WhatsApp messages between Musguin and her former manager, Ms Dyer, on the day of the meeting indicated that she and Rayat were in fact friends and he respected her. 

In the messages Musguin said: “[Rayat] told them I was pregnant and going off at Christmas before he asked for my pay increase… obs [sic] that is between [Rayat] and me and not their official stance.”

After the meeting, on 24 August, Rayat produced a revised business proposal that said a wage increase of £2,000 would be possible in return for Musguin assuming additional responsibilities.

The next day, Musguin emailed Rayat expressing her continued dissatisfaction at the pay differential and her view that her experience and skills were not sufficiently valued. 

On 26 August, she was informed that the £2,000 pay rise had been approved by management. The tribunal found that the revised proposal from Rayat was produced from his “genuine wish to support [Musguin]” and used additional responsibilities as a way to justify the increase.

Musguin then went on sick leave after her GP produced a certificate saying that her illness was caused by “work-related stress in pregnancy”.

On 23 September, Musguin raised a grievance setting out her unhappiness surrounding the unfair pay differential between her job and Fiona’s role, which she later brought to tribunal. 

Judge Russell found that the refusal of a pay rise was unfavourable treatment and an act of “overt discrimination”. 

She said: “Even if [Musguin] was not entitled to a pay rise, the refusal to exercise discretion in favour of giving a pay rise because of impending maternity leave is clearly unfavourable.”

Samantha Dickinson, equality and diversity partner at Mayo Wynne Baxter, said the ruling would come as no surprise to employment practitioners. The issue was “so obviously unfavourable treatment”, she explained, that many cases of this nature don’t make it to a tribunal hearing.

“Most employers would not take such a stance or, if they did, their legal advisors would… persuade them to resolve the matter before it comes in front of a judge,” she said.

Dickinson highlighted that a “who said what and when” dispute could often only be resolved by looking at written documents produced at the time. As no notes were taken by the employer of the crucial meeting, the next best written record was the claimant’s WhatsApp messages, which the tribunal attached “significant weight” to. 

“The clear message here to employers – aside from the obvious which is don’t discriminate – is to keep written records of meetings and decisions,” she advised. 

The tribunal awarded Musguin £9,000 for injury to feelings, with interest calculated from 24 August 2020.

Musguin’s other claims of unlawful discrimination, unfair dismissal and unathourised deduction of wages in respect of company sick pay were dismissed.