Am I Entitled a Pay Rise

Human Resources Assistant Declined Pay Increase Due To Upcoming Maternity Leave?

On 6th May 2022, the Employment Tribunal handed down a judgment in favour of a Claimant who had been refused a pay rise because she was due to take her impending maternity leave.

What Was The Background To This Case?

The Claimant had worked for around three years as a Human Resources Advisor for a construction business. She had been relatively successful and achieved a pay rise of £30,000 in January 2018.

Between June 2020 and August 2020 respectively a dispute appears to have arisen between the two parties. The argument appears to have flared up about a discrepancy in the amount being paid between the Claimant’s salary and one of another serving employee who was employed in a similar position.

Why Did The Employment Tribunal Reach This Conclusion?

When the Employment Tribunal judge reviewed the evidence there was found to be both a direct correlative and causative relationship between the Claimant’s action of asking for a pay rise on 24th August 2020 and the fact that she was due to commence a period of leave for maternity around sixteen weeks thereafter. The judgement appears to be damning on the decision of the Claimant’s employer and declared it to be unfavourable treatment.

The judge then interestingly elaborated upon his reasons by saying that even if the Claimant had not been entitled to a pay rise and even if she was mistaken this would be irrelevant because the Employer had declined the choice of providing the Claimant with a pay rise in combination with the link between the decision and her impending maternity leave which appears to have tipped the balance in the Claimant’s favour.

Many people perceive the test for causation to be at a particular event i.e. the decision would not have been made but for the presence of the protected characteristic such as pregnancy. However, what was interesting about this case was within the judgment the judge applied an objective test under which he tested whether the protected characteristic or the fact that the Claimant was about to embark on a period of maternity leave were:

• an effective
• an operative and
• a material

cause of the unfavourable treatment. The judge tested if the behaviour of the Employer was unfavourable treatment by seeking to identify what the unfavourable treatment was and assessed how the behaviour was unfavourable. The judge appears to have created a precedent for future cases that treatment which can be perceived as having the potential to be advantageous is unlikely to hold water.

What Should Lawyers Be Advising Their Clients?

Lawyers should be advising their clients to consider this judgment carefully. The employer got into hot water following the disclosure of amounts their workforce received in salaries. Some employers have policies in place whereby their workforce is gently reminded not to disclose information to others regarding salaries. Lawyers should be advising employers to:

• encourage staff not to disclose salary details
• if approached by a member of the workforce with a request to increase their salary to:
• triple check if the person has a protected characteristic such as pregnancy
• review whether the staff member has given notice of maternity leave and when this is due to take place
• ensure the person is not working down their protected period before commencing their Maternity Leave
• be extremely cautious to decline a request for a pay rise from a member of staff as the sceptre of discrimination on the grounds of pregnancy or maternity-related discrimination may materialise. If a respective employer follows this approach, they will mitigate the risk of this situation happening to them.

ASSESSING FIRMS

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THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Geesin, Charlotte – Avoiding pregnancy and maternity discrimination claims – People Management - 18 May 2022 - Avoiding pregnancy and maternity discrimination claims (peoplemanagement.co.uk)

[2] Changing the world of work for good – Pregnant and precarious: new and expectant mums’ experiences of work during Covid-19 - 11 June 2022 - Pregnant and precarious: new and expectant mums’ experiences of work during Covid-19 | TUC

[3] Powell, Caitlin– HR assistant was unfairly refused pay rise because of impending maternity leave – 27.05.2022 – People Management - HR assistant was unfairly refused pay rise because of impending maternity leave, tribunal rules (peoplemanagement.co.uk)

[4] Miss L Musguin v Breyer Group plc (2021) Case Number: 3220068/2020 - dd (publishing.service.gov.uk)

[5] Section 18 Equality Act 2010

[6] Williams v Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65

[7] Igen Ltd v Wong [2005] IRLR 258

[8] Madarassy v Nomura International Plc [2007] IRLR 246, CA

[9] Section 13 Employment Rights Act 1996

[10] Merritt, Claire – Women’s health in the workplace: key issues to consider – People Management - 12 April 2022 - Women’s health in the workplace: key issues to consider (peoplemanagement.co.uk)

[11] Powell, Caitlin – Mother of triplets dismissed due to direct sex discrimination, tribunal rules – 8 April 2022 – People Management - Mother of triplets dismissed due to direct sex discrimination, tribunal rules (peoplemanagement.co.uk)

[12] Clarke, Nicola – Getting your redundancy selection criteria right – 28 March 2022 – People Management - 108113 (peoplemanagement.co.uk)