The Ministry of Defence has been sued for sexism over a Royal Navy rule that stops servicewomen from undertaking physical assessments required for promotion after having a baby.
Petty Officer Emma Upton-Webb said that she was prevented from joining a training course to advance her career less than a year after giving birth because it was considered a “physical risk” to her health.
The Hampshire-based sailor attempted to begin officer training at the Britannia Royal Naval College (BRNC) when she was approximately nine months post-partum, but was turned down.
Ms Upton-Webb said that she was prohibited from completing a 2.4km run, which forms a vital fitness test needed to successfully pass the course.
Under existing Royal Navy regulations, female sailors returning from maternity leave receive “less onerous fitness requirements” across a two-year period following childbirth to protect their wellbeing.
However, Ms Upton-Webb said that the current policy is inherently sexist.
She sued the Ministry of Defence for direct and indirect sex discrimination, but lost her case at Southampton Employment Tribunal, Hants.
Ms Upton-Webb joined the Royal Navy and was promoted to Petty Officer before leaving the Navy in 2012.
She rejoined the Navy in October 2018 and she was accepted to attend BRNC on the Upper Yardsman route for officer training in 2020.
However, Ms Upton-Webb suffered a training injury and she had to be withheld from the course. When it was rescheduled to the following year, she suffered a traffic accident.
She was downgraded as “Medically Not Deployable” due to her hip injury and instead of delaying her training again, she completed the academic aspect of the training course.
She was given permission and was made Sub-Lieutenant, an officer rank which those who complete BRNC become.
Ms Upton-Webb was expected to attend the BRNC for the second half of the training course in May 2022, but in January she became pregnant.
She told her senior officers about her pregnancy, and they said that she would have to be downgraded in rank, back to Petty Officer.
She was also told that although she could continue with the academic training, “there was little point in her doing so” because she would have to repeat it as too much time would pass before she could undertake the sea training element.
Ms Upton-Webb went on maternity leave in July 2022, had her baby in the summer of 2022, and she returned to work in March 2023.
After having her baby, she was keen to complete the BRNC course but she was told that it may be a risk for her to do so.
A Surgeon Commander was consulted about it by Ms Upton-Webb’s boss. That Surgeon Commander said in an email: “One of our individuals [another female sailor] had her baby in December 2021. She was supposed to join in September 2022 and ROHT [Royal Navy Occupational Health Team] deferred her to January 2023.
“The individual who was allowed to join at the 14-month point has really struggled, not so much with fitness, but with the fact that her body has changed so much post-childbirth.
“I would really (really) worry about someone joining ahead of the 12-month point.”
The tribunal heard details about the Navy policy surrounding women returning from maternity leave.
The policy states: “In order to ensure that naval servicewomen are treated fairly on returning to work following a period of maternity leave, it has been necessary to assess the impact on the postnatal body of maximal effort fitness training and testing.
“The science and medicine on which the research is based is complex and extensive and has informed the policy decision to extend the timing requirement for servicewomen to successfully pass their Royal Navy Fitness Test (RNFT)…
“For a two-year period following the birth of their child, naval servicewomen will use the [Rockport Walk, which is a one-mile walk] as the submaximal element of their RNFT unless they request, as a personal decision, to undertake the maximal test of a 2.4 km run or [a multi-stage fitness test] and have specific medical clearance to do so, which must be provided to the supervising PT at the time of the test.
“The returning mother is exempt from any requirement to pass the RNFT for a period of 18 months post the birth of her child.
“However, in order to gauge her postnatal recovery to full fitness, she must attempt an RNFT at the 15 month point.”
The tribunal heard that the “fitness standard for entry” at BRNC was the 2.4km run, not the one-mile walk that mums less than two-years post-partum are allowed to complete as per the RNFT.
Ms Upton-Webb was not allowed to undertake the 2.4km run and was refused entry to BRNC.
She was told she could enrol 24 months after she gave birth.
At the tribunal, she accused the Navy of sex discrimination, saying their refusal of letting her into the BRNC “denied her the opportunity to progress her career” while she was two years post-partum.
She claimed other male colleagues had been given “tailored” courses if they were deemed medically unfit.
Employment Judge Keith Richardson ruled Ms Upton-Webb was not discriminated against.
He said that the policy around pregnancy was put in place for safety reasons.
He said: “In this instance I am not persuaded that, looked at objectively, it was reasonable for [Ms Upton-Webb] to regard herself as having received less favourable treatment because of the provisions imposing less onerous fitness requirements on women for the first two years after birth.
“I am satisfied that any reasonable person considering the restrictions imposed in an objective fashion could only conclude that they were a benefit to post-natal servicewomen by affording some measure of protection from injury arising out of maximal levels of exercise post childbirth.
“The fact that [she] subjectively regards this requirement as less favourable treatment in her specific circumstances is not enough, in isolation, to establish that it is.
“I am conscious that [she] has argued that the reason she was not permitted to undertake the maximal [fitness test] was that she was a woman who had just given birth.
“However, in my assessment, the correct analysis is that the reason why she was not recommended for the May 2023 course was that there was a tenable risk to her health (albeit due to the fact that she had recently given birth) which [a Navy Commander] and his team sought to mitigate by allowing her more time to recover fully and reach the required fitness standard.”
Judge Richardson also said it wasn’t sex discrimination that she was demoted from Sub-Lieutenant back to Petty Officer.
Ms Upton-Webb, who is still in the Navy and is married to an officer in the RAF, said that she is appealing the tribunal decision.
