This article looks at the issue of pregnancy and maternity discrimination in the workplace and if it does happen, how it should be dealt with.
The Equality Act 2010 protects employees from discrimination and victimisation because of pregnancy and maternity, one of nine features known in law as ‘protected characteristics’ that are covered by the Act. It is also important to say that while employers and employees can be liable for their own acts of discrimination, employers can also be liable for their employees’ acts.
The main issues that mothers-to-be and new mothers can face difficulties include:
• Being dismissed or forced out of their jobs because of their pregnancy and/or maternity.
• Some managers believing that mothers-to-be will only be able to cope with a lower level of work or less work, because of their pregnancy.
• Mothers having to settle for low-paid, part-time work on returning to employment because some employers believe they will not be as committed because they have a family.
As an employer it is important to make sure that your workplace is ‘inclusive’, this means that employees feel that they belong and are not disadvantaged or undervalued because they are pregnant or on maternity leave.
The Equality Act protects employees from certain types of discrimination relating to the protected characteristic of pregnancy and maternity. The characteristic covers a woman from when she becomes pregnant until her maternity leave ends or she returns to work or opts to leave employment. During that time, which is known as the ‘protected period’, she is protected against discrimination because of her pregnancy or of any illness related to her pregnancy or absence because of that illness she is seeking to take. It is important to note that protection under the Act will only begin from the point that you know an employee is pregnant, so it is very important to have policies in place that you action as soon as an employee tells you she is pregnant.
It is important to understand that once the protected period ends, it can still be unlawful to treat her unfairly because of her pregnancy, maternity or breastfeeding. This might be because the unfair treatment stems from a decision taken during the protected period or, she might claim that it is sex discrimination.
Both the employer and employees should be very careful regarding questions related to an individual’s pregnancy or maternity as these might be or become discriminatory, particularly if they are intrusive or handled insensitively.
Key points in the workplace
Before we provide advice on what all employers should be doing to reduce the chance of pregnancy and maternity in the workplace and how to deal with it if it does occur, here are just some of the key points relating to the issue that you should be aware of.
An employer’s general workplace health and safety assessment must specifically consider risks including working conditions, heavy lifting or carrying, travel, standing or sitting for a long period without adequate breaks, long working hours and exposure to toxic substances.
Once an employee has told her employer in writing that she is pregnant, a new mother or breastfeeding, she should have regular health and safety discussions. Concerns and any risks can then be reviewed and addressed, taking into account possible risks that may occur at different stages of pregnancy. Where you have any doubts, it might also be sensible, with the co-operation of the employee, to get input from her doctor.
Should a job applicant tell the employer she is pregnant?
A job applicant does not have to tell the employer during the recruitment process that she is pregnant. Where she volunteers information about her pregnancy or maternity, or is obviously pregnant, or appears to be pregnant, interviewers and recruitment decision makers should not be influenced by that information or impression.
If she gets the job, she must tell the employer of her pregnancy if there are any health and safety reasons, and to take time off for antenatal appointments in work time. Generally, the rule is that an employee must tell her employer at the latest by the 15th week before the expected week of childbirth (when she is about six months’ pregnant) to give notice of her intention to take maternity leave and pay. However, in circumstances where an applicant joins a new employer after the 15th week before childbirth, the law says she must tell the employer as soon as is ‘reasonably practicable’. She should confirm her pregnancy in writing.
If an individual does not get the job, and can establish that this was because she was pregnant, then that is discrimination and you could be liable for a claim even although you had never actually employed the individual.
Withholding training from an employee because of her pregnancy and maternity leave is likely to be discriminatory. Generally, it would be unlawful for a woman to miss out on training because she becomes pregnant, is about to take maternity leave or is on maternity leave or is absent from work because of illness related to her pregnancy or maternity.
However, both employer and employee need to be reasonable about when training takes place, and they can discuss the best timing for training. As with general working conditions you should also carry out a risk assessment to ensure that it is safe for the pregnant employee to undergo the training.
Managing absence during pregnancy
An employer must not include absences because of pregnancy or pregnancy related illness in ‘managing absence triggers’. A trigger is the number of days’ absence in an employer’s policy when managers would consider disciplinary warnings, and ultimately dismissal, unless attendance at work improves.
Neither should absences because of pregnancy or pregnancy related illness be included in any other kind of absence record. Also, negative comments or warnings about absences because of pregnancy or pregnancy related illness are likely to be discriminatory.
It is discrimination for an employer to dismiss an employee because of her pregnancy or maternity.
An employee can be disciplined while pregnant or on maternity leave as long as the reason for the disciplinary action is genuine and fair, and not related to her pregnancy or maternity in any way. If the employee has had a pregnancy related illness, the employer will need to be careful in agreeing to a date and location where the employee is well enough to attend a disciplinary meeting.
An employee must not be put at a disadvantage or discriminated against in a redundancy process because of her pregnancy or maternity. For example, an employer must not single out a woman for redundancy because she is pregnant, taking maternity leave or something linked to her pregnancy or maternity, such as being off ill because of her pregnancy. Pregnant employees or employees on maternity leave can still be made redundant but you should take care to ensure that a fully fair process is followed and that the pregnancy or maternity is not a factor in any decision. Under the Maternity and Parental Leave Regulations 1999 employers are obliged to offer women on maternity leave a suitable alternative position if one is available, prioritising them over other employees. Legislation is currently being proposed to provide even more protection by exempting women on maternity leave from being made redundant altogether so watch this space.
An employer must not put pressure on an employee to work during her maternity leave or return to work from her maternity leave sooner than she wants. This is likely to be unfavourable treatment because of maternity.
If the employee has worked for her employer continuously for 26 weeks, she has the right to ask to work flexibly – she is likely to qualify to ask as maternity leave counts as continuous service. For example, this might be to reduce hours, change which hours she works or work the same number of hours but over fewer days. Or, it might be to work from home or as a job share or to go part-time.
There is a common misconception that women returning from maternity leave are entitled to change their hours. This is not the case. They are allowed to request a change, but they are not necessarily entitled to one. The employer must agree to flexible working where it can accommodate the request but can turn it down on certain grounds defined in flexible working regulations. However, it must make sure it does not discriminate and must be clear that the reasons for refusal do not in any way relate to pregnancy or maternity. Any tribunal would look very closely at a refusal in such circumstances.
Going back after maternity leave
An employee at the end of six months’ maternity leave has the right to return to her job on the same terms and conditions as before she left, if the job still exists and depending on how her employment contract defines ‘the job’.
If she takes more than six months’ maternity leave, she still has a right to return to her old job, however, if it is not reasonably practicable for her to do so, she can be offered a similar job where terms and conditions must be as good. This means someone covering in her old job cannot be given the role permanently because the employer thinks they are better at it than the employee returning from maternity leave.
Pregnant employees are entitled to reasonable and paid time off for antenatal care advised by a doctor, midwife or health visitor. Antenatal care can be wide-reaching and include, for example, planning the employee’s medical care during her pregnancy, tests, scans and regular checks on her pregnancy. Time off includes any waiting at the clinic for the appointment and travel.
The partner of a pregnant woman has the right to take unpaid time off for two antenatal appointments up to six and a half hours for each.
Shared parental leave and pay
A new mother may decide with her partner that they would prefer to swap some of her maternity leave and pay for Shared parental leave and pay so they can share the responsibility of caring for their baby. This might be so they can be off work at the same time or take it in turns to take leave to look after their baby.
Contact during maternity leave
This needs sensitive and careful handling, and in practice can be a complicated area because an employer getting the level of contact wrong can lead to a claim of discrimination from a new mother who feels she has not been kept in touch with changes at work, job vacancies or opportunities or, conversely, from a new mother who feels she is being put under pressure to end her maternity leave early and return to work, or confirm early that she will be returning to work.
The best way forward is before maternity leave starts, employee and employer should meet so the employer can understand how, when and how often she would like to be kept in touch, about what and with whom. They should come to an agreement. Also, both should accept that once maternity leave starts, there may be a need for flexibility about what they have agreed.
Employers and employees should avoid making assumptions about women because they are pregnant or on maternity leave. Such assumptions can often be done without realising, this is known as unconscious bias. For example, this might include assumptions that someone who is pregnant or on maternity leave may have more time off work because they are pregnant, have chosen to become a mother rather than commit to a career and be less reliable when they return to work after maternity because of the demands of raising children.
Making such assumptions and uninformed decisions about employees or job applicants is discriminatory and has repercussions.
Impact of other protected characteristics
It is not uncommon for the different protected characteristics of pregnancy and maternity, and sex to interact. But whether a complaint amounts to discrimination because of pregnancy and maternity, or her sex, ultimately rests with an employment tribunal or court. This can be a complicated area.
If a job applicant or employee is treated unfairly because she is thought to be pregnant or taking maternity leave, whether this perception is correct or not, she may have a claim for sex discrimination.
What all employers should do
Develop a Pregnancy and Maternity policy
An employer should have a policy so that employees can find out and understand their pregnancy and maternity rights, and so managers know what steps need to be taken. For example, when should an employee tell her employer she is pregnant? Small firms may find it more practical to make clear what behaviours are acceptable and unacceptable through a staff handbook.
Pregnancy and Maternity awareness training for staff
An employer should provide training for all employees in constructively developing their general awareness and understanding of equality and diversity and promoting them in their workplace.
An employer should also provide specific training in managing pregnancy and maternity in the workplace.
For example, managers should be trained to know how to:
• Handle effectively and sensitively that first conversation when the employee tells them they are pregnant and set the correct approach and tone.
• Spot and deal with any conflict between the needs of the business and any needs of the employee because she is pregnant.
• Make sure the employee is clear on her rights, and reassuringly prepare her to leave work to have her baby and return after maternity, if that is what she intends.
• Plan how they will keep in touch during maternity leave, her return to work and any flexible working so she can manage childcare.
Here to help
As you will see, the issue of handling pregnancy and maternity leave in the workplace is much more complex than merely understanding the practicalities of leave periods and levels of pay. We hope that this article has given you valuable insight into the issue, and that if you have not already done so, that it encourages you to introduce specific policy and training in your workplace.
This is an area that Borders Employment Law specialise in and we can help you to introduce policy and train staff. Not only can we make sure that you are fully compliant with the law but we can considerably reduce the chance of pregnancy and maternity discrimination happening in your workplace. But if it does, we can help you deal with it properly and fairly.