The law says that employers cannot discriminate against workers on the ground of pregnancy or maternity. In Onigbanjo v London Borough of Croydon the Employment Appeal Tribunal (EAT) held that the council had not discriminated against its employee when it failed to provide her with accurate details of training days towards the end of her maternity leave.
Basic facts
Ms Onigbanjo, a newly qualified social worker, started work with the London Borough of Croydon (LBC) in October 2015. Her employer, who was aware that she suffered from fibromyalgia (a recognised disability) understood that she required some specialist equipment.
After informing LBC in late January/early February 2016 that she was pregnant, Ms Onigbanjo took out a grievance in April 2016 on the grounds that her employer had failed to carry out a risk assessment for her pregnancy and had not obtained the specialist equipment they had promised in relation to her disability. She went on maternity leave towards the end of August 2016, after which she lodged claims for maternity and disability discrimination which were partially successful.
In October 2017, she lodged a further claim for maternity discrimination arguing that LBC had failed to provide her with accurate details of training days towards the end of her leave, amongst other things.
Just before she was due to come back to work, she had a “return to work” interview following which access to her place of work and to IT services was restricted due to an ongoing investigation into possible fraud. Ms Onigbanjo was then suspended on allegations of fraud in relation to housing tenancy, council tax and a failure to provide accurate and comprehensive details in her DBS form in May 2015. Following a disciplinary hearing in January 2018, she was dismissed for gross misconduct.
She brought claims of unfair dismissal and victimisation.
Tribunal decision
Dismissing the claim of maternity discrimination, the tribunal held that although Ms Onigbanjo had not been informed about training days, there was no evidence to suggest that her colleagues - who had not taken maternity leave - had been invited to attend training. It also dismissed the claim for unfair dismissal.
As for the claim of victimisation, the tribunal accepted that Ms Onigbanjo had been victimised when her manager cancelled an appointment at which she was to be fitted for an office chair that had been ordered for her. However, given the context of the ongoing investigation, it concluded that she had not been victimised when her manager refused to allow her access to her workplace and IT facilities.
EAT decision
In relation to the appeal on the ground of maternity discrimination, the EAT held that the tribunal was entitled, on the facts, to find that Ms Onigbanjo had not been treated less favourably than other employees who were not on maternity leave.
As for the argument that the process followed by the council in relation to her suspension and dismissal were discriminatory, the EAT rejected the argument that the tribunal had made an error of law. “Given the gravity of the allegations, and the sensitivity of [her] duties, suspension was inevitable and the [tribunal’s] conclusions regarding the fairness of the investigation and disciplinary process were ones which it was entitled to make”.
However, with regard to the claim of victimisation, the tribunal had not properly explained why it was an act of victimisation to cancel an appointment to fit her with an office chair but it was not victimisation to refuse her access to the office and to IT services. As the tribunal had not adequately explained the distinction between the two matters, it remitted them for redetermination.