Despite stringent laws in place to prevent maternity discrimination, there continues to be a rise in the number of claims being brought before Employment Tribunals, with many women still facing discrimination by their employer as a direct result of pregnancy, either during or whilst on maternity leave.
According to the Equality and Human Rights Commission, as many as 390,000 women per year face a negative or possibly discriminatory experience in relation to their pregnancy. A proportion of these will suffer financial loss; typical examples of this include failure to be promoted and salary reduction. Furthermore, some will lose their jobs as a direct result of pregnancy discrimination.
Fundamentally, it is against the law for an employer to treat a woman unfavourably because she is pregnant, has pregnancy-related sickness, or is on maternity leave, or has taken maternity leave. But what classifies as pregnancy discrimination?
Here are some common types of pregnancy and maternity discrimination claims brought to Employment Tribunal.
Mishandled flexible working requests: perhaps the most common form of dispute between employers and employees when returning from maternity leave is in relation to hours of work. From a legal perspective, there is no automatic right to part-time working; however an unjustified refusal to allow an employee to work part-time on return from maternity leave could be held as indirect sex discrimination.
Singling out pregnant employees/ new mothers for redundancy: In a genuine redundancy situation, pregnant employees/ new mothers would not be exempt from being selected; however the Employment Tribunals are still seeing unfair dismissal cases where employers have used a sham redundancy as an excuse to dismiss an employee who is pregnant/on maternity leave.
Employers need to be mindful of the fact that employees on maternity leave have special protection, with priority given to them if there is suitable alternative employment available.
Penalising a woman for pregnancy related illness: A claim for discrimination can be brought by an employee if they are seen to be treated unfavourably, for example disciplinary action or dismissal as a result of pregnancy related sickness.
Health and Safety breaches: an employer can come under fire for discrimination by health and safety regulation in terms of risk assessments in the workplace for pregnant/new mothers. All employers need to carry out risk assessments and ensure they take action to avoid such instances.
Inappropriate comments: any form of inappropriate comments in relation to pregnancy by a line manager or otherwise can lead to an employment tribunal claim, on the grounds of harassment. Recent examples of this include managers’ comments about being ‘inconvenienced’ by someone’s pregnancy and subsequent maternity leave.
Failure to communicate with an employee on maternity leave: Problems often occur when an employee is ‘cut-off’ from communication about workplace matters when on maternity leave, for example in relation to changes to the staffing structure or opportunities for progression such as internal vacancies.
Managers are therefore allowed to make “reasonable contact” with employees who are on maternity leave to ensure that appropriate information is fed to employees on maternity leave.
Not paying someone properly when they are on maternity leave: this is often a common area of confusion for employers. The bottom line is that an employee is entitled to all contractual benefits, save for remuneration, whilst they are on maternity leave. Any failure to uphold this can be classed as discrimination.
Not allowing a woman to return to her old job post-maternity leave: Common issues for mothers returning to work include jobs that have a lower level of responsibility or something that doesn’t fit their skill-set.
Any employee returning to work after ordinary maternity leave (no more than 26 weeks’ leave) has the right to return to the job they held beforehand. For anyone taking additional maternity leave (more than 26 weeks’ leave), a woman has the right to return to her original job unless this is not reasonably practicable, in which case she has the right to return to another suitable job, on terms no less favourable.
Claims for discrimination can be pursued if the above is not adhered to.
Disadvantaging a new mother in relation to training and equipment: An employee returning from maternity leave should be offered the same opportunities as other staff members for career development, training and promotion, for example any training that they may have missed whilst on leave
Basing recruitment decisions on someone’s family situation: any form of recruitment decision based on someone’s family situation, plans or pregnancy is discrimination. An employer should assess the applicant’s ability to perform the job, and nothing else.
Farleys Solicitors have a specialist team of employment lawyers. If you feel that you may have been treated unfairly during the course of a pregnancy or maternity leave, and would like a free of charge discussion about workplace discrimination with one of our experts, please do not hesitate to get in contact with us.