A care assistant was awarded almost £36,000 after she was unfairly dismissed for asserting her rights under Working Time Regulations and unfavourably treated by her employer because of her pregnancy.
Middlesbrough employment tribunal ruled T Peart was unfairly dismissed and unfavourably treated by York-based Care Preference after she raised concerns about her hours.
Judge JM Wade said Peart’s employer immediately assumed she was lodging objections to shift patterns because she simply didn’t want to work ‘on-call’ shifts and failed to consider that Peart had childcare or health issues related to her pregnancy preventing her from taking shifts.
Peart worked as a personal care assistant (PCA) for Care Preference from November 2016 until her dismissal in April 2018. As part of her role, she provided care to a particular disabled service user (SU), a female wheelchair user with insulin dependency, in the SU’s home. This involved assisting the individual when transferring between seats or locations outside her home.
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Peart also had personal caring responsibility for her two children under the age of five.
Peart’s contract stated that she worked no more than 48 hours per week averaged over a 17-week period, and there was a relevant on-call policy which required her to maintain her ability to undertake work and be responsive at extremely short notice. Failure to adhere to this policy would potentially put the safety of clients at risk, and disciplinary action could be taken as a result, it added.
On 20 December 2018, Peart noticed her service user had a hair appointment and would need lifting support to transfer to the hairdresser’s chair. At this point, she decided to tell the leader of the SU’s care team, Miss Gamble, about her pregnancy as she previously had high-risk pregnancies and was concerned about the risk to both her and the SU going forward.
Peart was rostered to work 8.30am on Tuesday 6 March until 8.30am Thursday 8 March, and was then the primary on-call responder over the weekend. A member of the team then resigned and immediately called in sick so Peart was contacted by Neil James – Care Preference’s founder, owner and managing director – to allocate her extra hours. Peart indicated that she could not work beyond 8.30am the next day because of her own children. James then contacted an alternative PCA from another team to cover.
Following this, at 6pm on 9 March, James called Peart to ask her to cover the weekend shift. Peart said she could not because of her children. She also said she wanted to be removed from on-call duties as she could not fulfill them and was unhappy with the number of hours she was being asked to work.
Peart notified Gamble and James on 16 March that she was unable to attend that weekend’s shift on the advice of her GP due to ill health. She also told James by email that ACAS, whom she was in contact with, had advised her it was illegal for a pregnant woman to work more than 48 hours within a week.
She said: “If I previously signed to state that I am happy to work over 48 hours within the same week, this no longer stands due to my change in circumstances, and I request this be withdrawn immediately as I will not be working over 48 hours after I return from sickness leave.”
James wrote to Peart on 19 March inviting her to a meeting regarding issues including her refusal to attend on-call duties and failure to follow procedure for sick leave. Peart, on receipt of the meeting invite, replied saying she could not attend but explained that her failure to attend call duties was an issue with her children and that she had requested dependency leave.
On 25 March, Peart found out she had been suspended when she called James to ask why she could no longer access the employee portal to see her rota.
Following this, James organised a meeting on 24 April, the result of which was Peart’s dismissal via a letter dated 25 April. She appealed her dismissal on 4 May but was told that her dismissal was upheld in a letter dated 17 May.
Peart took her case to the tribunal, which ruled she was unfairly dismissed and that the principal reason for her dismissal was her assertion of her statutory rights under the Working Time Regulations.
Additionally, it found Peart’s pregnancy and her refusal to work more hours were “indivisible”, and therefore the pregnancy was also considered a material influence or effective cause of the dismissal.
Judge Wade said: “[James] considered her objections were about her ‘desires’ (rather than taking her practical difficulties in securing childcare at face value) and that her approaches to ACAS revealed some kind of sinister motive.
“That was surprising when [Care Preference] knew enough of [Peart’s] circumstances to appreciate that she had a number of matters to plan to be available to work, and pregnancy and pregnancy appointments simply added to that burden,” Wade said.
The tribunal ordered Care Preference to pay Peart £35,925 for unfair dismissal and injury to feelings.
Angela Brumpton, partner at Gunnercooke, said dismissing a pregnant woman in any circumstance would always carry risk, and employers should take care not to jump to conclusions. “At the very least, ensure procedures are thorough and consistent,” she said.
“Having had a pregnant employee raise the issue of working in excess of 48 hours per week, the sensible thing for an employer to do would be to call the employee in for a full discussion, and to consider if a further risk assessment or acquisition of medical information is necessary,” Brumpton added.
Care Preference has been contacted for comment. Peart could not be reached for comment.