A primary school discriminated against a pregnant teacher when it attempted to force her back to the classroom during the Covid-19 pandemic, an employment tribunal has ruled.
Mrs Parton, who was 34 weeks pregnant at the time, disagreed with head teacher Mrs Snee and management at the Newman Catholic Collegiate regarding the safety of her return to St Peter’s Catholic Academy in Stoke-on-Trent after lockdown restrictions were lifted.
In June 2020, three months after the government first placed the country in lockdown in March, Parton discovered she was pregnant and notified Snee.
As lockdown restrictions were eased in September, the school conducted a risk assessment which concluded that Parton, whose pregnancy meant she was clinically vulnerable, should work from home where possible.
Parton did however continue various classroom work until Stoke-on-Trent was placed under Tier 4 restrictions in the run-up to Christmas. The tribunal heard that the presence of young primary school children generally militates against the efficacy of social distancing, a matter that Snee conceded.
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By 30 December, the claimant was anxious about returning to school. Guidance for pregnant mothers had changed during the course of the pandemic.
They were not being vaccinated and Parton was aware of media stories of serious complications for mothers and babies as a result of Covid.
Parton was due back at school on Monday 4 January 2021 for the start of the spring term. She emailed government guidance to Snee on 30 December, which stated that women were at greater risk of severe illness from Covid if they were more than 28 weeks pregnant.
She wrote: “Obviously on return to work next week I am 34 weeks pregnant and do feel concerned that, particularly at this point, I need to be safe and make sure I aren’t (sic) putting myself and my baby at risk.”
Snee replied on Sunday morning, the day before the start of term, stating: “I understand your concerns but I have to follow the collegiate/government guidance so in response to your query, please see attached the most recently amended risk assessment in line with government guidance and Tier 4 restrictions. If you have any further queries, please let me know and I will forward them to HR.”
Numerous emails were exchanged during the day. Snee had offered to meet her at 11:30am the next day, but Parton suggested instead a time outside school hours or a video meeting via Teams.
Section 44 letter
The claimant reiterated that she did not believe that she could attend the workplace while adhering to government guidance, and confirmed that she was “fit and well and able to work from the safety of my own home”. Parton also included a “section 44” letter stating that she believed the workplace was unsafe.
Late on Sunday night, Snee emailed: “I am disappointed by your email. I kindly request that you send me a detailed report as to why you think our school environment is unsafe. I have supplied you with our full risk assessment which details the measures we have in place to mitigate any risk.
“As I have stated I would gladly meet you in school to discuss any further changes you would like to your risk assessment and would still welcome the opportunity to do this. If you are not in work tomorrow, I shall treat this as an unauthorised absence and will follow school procedure to manage this. As I have already stated, if your anxieties cannot be managed in school, I would happily start your maternity leave early”.
Schools closed again
Parton said she saw no reason to commence her maternity leave early and further emails were exchanged during the school day. That evening, the prime minister announced that all schools would again close to pupils except for children of key workers and vulnerable children.
The claimant emailed Snee stating that in the light of Boris Johnson’s announcement, she would be in school the next day as the main risk, namely the inability to socially distance, had been removed.
Later in the month, Parton received confirmation that her pay had been deducted for not attending the workplace on 4 January.
The tribunal found that the school treated Parton unfavourably in relation to her pregnancy. Applying a test outlined by the Court of Appeal judge in Rodgers v Leeds Laser Cutting in 2022, it drew the following conclusions that:
- the claimant believed that there were circumstances of serious and imminent danger at the workplace
- the belief was reasonable
- the claimant could not have reasonably averted that danger had she complied with the respondent
- the claimant refused to return to the workplace because of the (perceived) serious and imminent danger, and
- that was the reason for the detriment to which the respondent subjected the claimant, namely treating her absence as unauthorised and failing to pay the claimant in relation to 4 January 2021.
The tribunal concluded that the detriment also constituted unfavourable treatment by reason of her pregnancy under section 18 of the Equality Act 2010, section 47 of the Employment Rights Act 1996 and regulation 19 of the Maternity and Parental Leave etc. (MAPLE) Regulations 1999.
The judgment said: “The claimant suffered an unlawful deduction from her wages… insofar as her January 2021 pay was short of £122.95, amounting to a day’s pay (gross) relating to 4 January 2021 when she worked from home.”
A remedy hearing is being scheduled should the Parton and the Newman Catholic Collegiate not settle the matter in the meantime. At the time of the judgment, which was published on 29 December 2023, Parton was still employed at St Peters Catholic Academy.
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