Running a pregnancy & maternity case Presented by Peter O’Donnell Thompsons, Solicitors Chairman, Scottish Employment Rights Network

Introduction  Women enter a “protected status” when they become pregnant Status ends on the end of their maternity  Protection covers:- Specific statutory rights  Eg maternity leave, health & safety General protection  Cannot be subject to a detriment due to pregnancy while this status applies  Can sometimes require more favourable treatment of pregnant employee

3 Relevant Legislation  Employment Rights Act 1996  Equality Act 2010  Management of Health & Safety at Work Regulations 1999  European Law (for now!) Article 141 EC Treaty Equal Treatment Directive Pregnant Workers Directive

General Protection  Protection from detriment/dismissal under ERA Section 47C (detriment) Section 99 (dismissal) No qualifying period of employment  Discrimination claim under EqA Section 18 Covers pregnancy, pregnancy-related illness & exercise of statutory rights

Discrimination claims  No need for comparison with man Cf other types of discrimination Webb v EMO Air Cargo 1996 IRLR 645  Need to show that effective cause of any detriment is pregnancy or reason related to pregnancy Cf detriment/dismissal claims under ERA  Need to show it is the reason or main reason if more than one O’Neill v Governors of St Thomas More School 1996 IRLR 372

Case Plan  What type of claim? Discrimination Detriment/dismissal Specific statutory rights  What evidence do you have and what do you need? Witnesses Documents Medical evidence  Strengths & weaknesses  Time limits May be different for different claims

Proving pregnancy  Generally not an issue Client usually tells employer MAT1B  Can arise at early stages of pregnancy when employer not told Eg action taken when client off sick with pregnancy related illness  Evidence Sick notes What has been said to employer/other employees

Gathering further info  From client/witnesses  Medical evidence Gather early Relevant to  H&S cases  Proving pregnancy  Remedies ID appropriate expert if report needed  ET ask for joint reports  From employer May be crucial No questionnaire procedure but can still ask

Evidence from client  Picture before pregnancy announced Any warnings/complaints Relationship with employer or other employees Future prospects  Picture after pregnancy announced How quickly did “issues” arise? How did employer react?  Any adverse comment How treated?  Change of duties?  Moved?  Asked to do things shouldn’t do (eg heavy lifting)? H&S assessment done or discussed?

Witnesses  Is there anyone who can speak to issues in dispute? What will they say? Precognose them  Don’t call witnesses for sake of it No character witnesses! Don’t call witness to speak to issue not in dispute – could contradict Do you need more than one person to speak to same matter  Expert witness Is one needed? Joint expert preferred  ID expert with other side  Joint letter of instruction Any concessions to be made once report received

Drafting questions to employer - Why?  Chance to investigate case before lodging claim See how employer will defend claim Allow better assessment of merits  Chance to put claim to employer without lodging proceedings Could result in early resolution  Response can be used in evidence  Failure to reply or ambiguous response can be held against employer

Process  As soon as possible  Important to consider who to send questionnaire to Go above decision-maker?  Reverse decision? Chief Executive or Head of HR?  Employer may refuse to respond on grounds of confidentiality or data projection Avoid - ask for anonymised data

What?  Confirmation  Investigation  Disclosure  Don’t Write “War & Peace” Get too involved in legal basis  Do Focus questions on important issues Consider what you want out of response Think tactically

Confirmation  What facts do you need confirmed?  What other facts might assist?  Ask employer to give their version Eg “If you don’t agree X, why not?”

Example - dismissal  Previous disciplinary record  Date of disciplinary hearing  Date decided to dismiss  Date communicated dismissal  Reason given for dismissal  Any breaches of statutory rights

Investigation  What do you need to know from employer?  What facts might help you in assessing case?

Example - dismissal  Evidence in support of reason for dismissal  How other people treated in same circumstances Don’t need comparator but useful evidence if others treated differently  What bearing did protected characteristic have on decision  Relevant breakdown of current staff

Disclosure  Documents Contract, handbook etc Relevant policies (eg Equal Opportunities) Minutes of meetings H&S Assessment  Other information Relevant breakdown of employee EO training provided to decision makers

Example - dismissal  Contract of employment  Disciplinary procedure  How many people of different characteristics dismissed in last 5 years?  Current employees Has client been replaced  Equal Opportunities policy

Quantification  Do it as early as possible – estimate Need idea of value of case ACAS Early Conciliation Will be ordered by ET – get ahead  Heads of compensation Actual loss Injury to feelings Physical/psychological damage Fees/expenses Compensation for other claims (eg basic award for unfair dismissal)  See if other side willing to agree quantification May need to lead evidence (eg injury to feelings, mitigation)

Lodging claim  Make sure:- Grievance procedure followed ACAS EC done  Time limits 3 months less one day from act of discrimination  Act of discrimination is date when act decided upon by employer  Use earliest possible date Act continuing over a period  Individual incidents  Needs to be sufficient link between individual incidents People involved, conduct concerned etc

Pleading the case  Set out story of case in chronological order  Set out primary facts offering to prove Don’t plead evidence Facts from which you say ET should draw inference of discrimination  Set out statutory basis of claim

Reviewing the ET3  What has been conceded (if anything)? Factually Legally  What is in dispute?  Ask client for their comments

Tribunal process  Preliminary Hearing Agenda Needs to be completed  Preliminary Hearing (Case Management) ID any jurisdictional issues  Time limits  Some issues could only be dealt with at Full Hearing Confirm statutory basis of claim Length of hearing  ID number of witnesses  Always over-estimate Dates for hearing  Come with available dates Timetable for preparation  Exchange of documents  Joint bundle  Use of witness statements Any Orders needed

Preparing for hearing – Documents  What documents do you need & not have Request from other side – seek order from ET Need to be specific  No fishing expeditions ET may order disclosure of all documents by each side – English style disclosure  Joint bundle Usually prepared by respondent

Preparing for hearing – Further Information  Do you know what employer’s defence is? Entitled to know case you have to meet  Is there other information you need? Confirmation & Investigation More restrictive than pre-action Needs to be relevant to pled case

Preparing for hearing - Submissions  Do these first Helps focus mind on what you need to prove  Format Relevant law  Statutory provisions  Cases Don’t quote every case ever decided – focus on most relevant cases Findings of fact  Comments on credibility/reliability Submissions

Preparing for hearing – evidence-in-chief  Your witnesses  No leading questions Who, what, where, why, when & how  Lead them through the story One fact at a time Make sure they cover everything put in cross- examination  Anticipate what other side may put in cross Head it off and address it  Documents Must be referred to by witness to be in evidence ID document Take witness to any specific part

Preparing for hearing – cross- examination  Put case to other side Attack any weak points Highlight inconsistencies or contradictions Challenge evidence  Can ask leading questions