Thu 2nd Aug 2018
Under the Equality Act 2010, it is unlawful to discriminate against an employee who is pregnant. Employers are prohibited from treating employees unfavourably either because of their pregnancy (or an illness arising from it) or because they are exercising (or trying to exercise) their right to maternity leave.
It’s worth noting that, while indirect discrimination and harassment claims cannot be made on the grounds of maternity or pregnancy, there is nothing to prevent employees from claiming that they have been harassed, or indirectly discriminated against, on the grounds of sex during pregnancy or maternity leave. Compensation for successful discrimination claims is uncapped, so such claims pose a significant financial risk to employers, as well as a reputational risk.
What can employers do to minimise claims and ensure they are properly supporting pregnant employees, or those on maternity leave?
- Make employees aware of their rights
As a minimum, employees should be made aware of their rights during pregnancy and know how to exercise them. Employees will generally be aware of the more obvious rights, such as maternity leave, but may not know they may have the right to carry over untaken holiday where their maternity leave spans two leave years. Having a comprehensive maternity and equal opportunities policy in place is a useful starting point. Employers need to ensure such policies are properly communicated to employees and applied consistently in practice.
- Communication is key
Ensuring effective communication with employees before, during and after maternity leave is crucial, although contact during maternity leave must be limited to what is ‘reasonable’. It’s often tricky for organisations to manage absence due to maternity leave, given its duration is often uncertain. Having open discussions with pregnant employees early on should enable employers to plan for effective management of the leave. Effective communication also helps both employer and employee to know where they stand, which can minimise potential problems further down the line. Where problems do arise, employees should be encouraged to raise their concerns through an internal grievance procedure in the first instance, which may well avoid the need for a tribunal claim.
- Don’t make assumptions
Employers may be prone to make assumptions about employees who are on maternity leave or pregnant. For example, employers may assume that pregnant employees may not be as committed to work or their career, or may not wish to progress. Likewise, employers may think that such employees will take more time off work and be less dedicated to the role, once they have had children. A recent survey by YouGov on behalf of the Equality and Human Rights Commission, found that over half of employers agree employees are sometimes resentful to those who are pregnant, or on maternity leave. It is important that employers do not have such bias against these employees, because they are likely to be discriminatory and may encourage employees to be of the same view.
- Right to return
It can be tempting for employers to consider making temporary staff covering maternity leave permanent, particularly where they may be considered ‘better’ than the employee on maternity leave. Employers must not to overlook the fact that employees who have been absent for 26 weeks or less are legally entitled to return to the role they held before their absence, or a suitable alternative role, on terms no less favourable. This right also applies to the end of additional maternity leave, although an employer can offer an alternative suitable role, if it is not reasonably practicable for an employee to return to the same job. If an employee is dismissed because of her pregnancy or maternity status, the dismissal will be automatically unfair and the employer is likely to find itself faced with unfair dismissal and discrimination claims.
- Consider flexible working
Employees with 26 weeks’ continuous service are entitled to request flexible working for any reason. Flexible working is particularly common among women wishing to strike a balance between work and childcare responsibilities. Employers are entitled to ask employees to make the request three months in advance of her return to work, where possible. A request may include changing the days of work, reducing hours or working from home. Employers must deal with such requests in a reasonable manner and notify employees of the outcome within the three-month decision period. It will often be in the employer’s best interest to grant such requests where possible, because it may be the deciding factor as to whether an employee returns from maternity leave. Refusing such requests could potentially give rise to an indirect sex discrimination claim, as it’s now commonly accepted that more women have childcare responsibilities and are effectively disadvantaged by a requirement to work full time.
As a minimum, employees should be made aware of their rights during pregnancy and know how to exercise them. Employees will generally be aware of the more obvious rights, such as maternity leave, but may not know they may have the right to carry over untaken holiday where their maternity leave spans two leave years. Having a comprehensive maternity and equal opportunities policy in place is a useful starting point. Employers need to ensure such policies are properly communicated to employees and applied consistently in practice.
Ensuring effective communication with employees before, during and after maternity leave is crucial, although contact during maternity leave must be limited to what is ‘reasonable’. It’s often tricky for organisations to manage absence due to maternity leave, given its duration is often uncertain. Having open discussions with pregnant employees early on should enable employers to plan for effective management of the leave. Effective communication also helps both employer and employee to know where they stand, which can minimise potential problems further down the line. Where problems do arise, employees should be encouraged to raise their concerns through an internal grievance procedure in the first instance, which may well avoid the need for a tribunal claim.
Employers may be prone to make assumptions about employees who are on maternity leave or pregnant. For example, employers may assume that pregnant employees may not be as committed to work or their career, or may not wish to progress. Likewise, employers may think that such employees will take more time off work and be less dedicated to the role, once they have had children. A recent survey by YouGov on behalf of the Equality and Human Rights Commission, found that over half of employers agree employees are sometimes resentful to those who are pregnant, or on maternity leave. It is important that employers do not have such bias against these employees, because they are likely to be discriminatory and may encourage employees to be of the same view.
It can be tempting for employers to consider making temporary staff covering maternity leave permanent, particularly where they may be considered ‘better’ than the employee on maternity leave. Employers must not to overlook the fact that employees who have been absent for 26 weeks or less are legally entitled to return to the role they held before their absence, or a suitable alternative role, on terms no less favourable. This right also applies to the end of additional maternity leave, although an employer can offer an alternative suitable role, if it is not reasonably practicable for an employee to return to the same job. If an employee is dismissed because of her pregnancy or maternity status, the dismissal will be automatically unfair and the employer is likely to find itself faced with unfair dismissal and discrimination claims.
Employees with 26 weeks’ continuous service are entitled to request flexible working for any reason. Flexible working is particularly common among women wishing to strike a balance between work and childcare responsibilities. Employers are entitled to ask employees to make the request three months in advance of her return to work, where possible. A request may include changing the days of work, reducing hours or working from home. Employers must deal with such requests in a reasonable manner and notify employees of the outcome within the three-month decision period. It will often be in the employer’s best interest to grant such requests where possible, because it may be the deciding factor as to whether an employee returns from maternity leave. Refusing such requests could potentially give rise to an indirect sex discrimination claim, as it’s now commonly accepted that more women have childcare responsibilities and are effectively disadvantaged by a requirement to work full time.