Asking a pregnant employee whether she plans to return to work after giving birth is a form of discrimination, a new ruling has found.

A mental health assistant has successfully sued her employer, Barnet, Enfield & Haringey Mental Health NHS Trust, for discrimination, after her boss nodded towards her pregnant stomach before she went on maternity leave, and asked about her “future plans”.

Duffy was in a meeting with her boss, Alan Beaton, to discuss a potential pay increase when the discrimination occurred. She had been asked to attend the meeting after a fellow employee, Joanne Cleasby, made the “stereotypical assumption” that Duffy would not return to work after her maternity leave. Accusations were also made by Cleasby that Duffy had planned her pregnancy in order to get a promotion.

The court heard that Cleasby was “annoyed” that bosses intended to automatically increase Duffy's salary in line with a 'band five' role (promoting her from a band four position) after a restructuring of the personal assistant team. Cleasby, however, was told that she would have to formally apply for a higher band – a decision she deemed unfair.

“You planned your pregnancy well,” Cleasby was reported to have said. “Have you told [your boss] that you won’t be coming back after maternity?” The court ruled that she discriminated against Duffy with her comments.

Maternity is a protected characteristic under the Equality Act. The term ‘pregnancy’ relates to the condition of being pregnant or expecting a baby, whereas ‘maternity’ refers to the period after the birth, and is linked to maternity leave in the employment context. Protection under the Act is covered in both areas.

Employment judge David Maxwell said:

“The obligation on Mrs Duffy to inform her employers about her intentions was a long way off and he ought not to have referred to this at all. The three acts were [individually and cumulatively] unfavourable treatment because Mrs Duffy was pregnant.”

A spokesman for Barnet, Enfield and Haringey Mental Health Trust, said:

“We acknowledge the decision in this case. We are glad that the claimant remains in our employment and we will continue to support her and all our staff to ensure they are treated inclusively, fairly and with compassion.”

If Duffy and the NHS cannot come to an agreement, a follow-up hearing will be held to decide on compensation.