The law is very clear on issues of maternity discrimination – but the tribunals keep on coming. Simon Thomas, partner at Hutchinson Thomas, explores why.
Despite robust laws in the UK to prevent maternity discrimination, cases continue to occur and hit the headlines.
With 54,000 women a year allegedly pushed out of their jobs due to pregnancy or maternity leave, with tribunal fees now abolished, getting it wrong represents a huge risk for employers – and even big employers, it seems, are getting it wrong.
Only in January, a tribunal in London ruled that Haddi Camara, a temporary employee working for the East London NHS Foundation Trust (ELFT), was discriminated against when her manager asked her if her pregnancy was planned and whether the cost of her maternity leave would have to come out of the team’s budget.
The Tribunal ruled these comments to be “objectively inappropriate and upsetting” and “manifestly made because of the claimant’s pregnancy”. Inappropriate comments are a common theme in maternity discrimination claims – but what are the others?
Here’s some of the most common causes of employees bringing tribunals for maternity discrimination:
- Refusing to make reasonable adjustments for a pregnant employee.
Once advised an employee is pregnant, employers should undertake a risk assessment and make adjustments to mitigate any risk, which can include:
- long working hours
- Standing/sitting for long periods without a break
- heavy lifting or carrying
- exposure to toxic substancesIf risks are identified, the employer is legally required to change job conditions, reassign the employee to different duties or allow the employee PAID leave if neither of these are possible.
- Refusing to allow paid time off for antenatal appointments – including relaxation and parenting classes.
Anyone who is pregnant is entitled to paid leave to attend antenatal appointments, no matter how long you have worked for your employer. Partners are also entitled to take time off for 1 or 2 appointments. Pregnant employees cannot be expected to make this time up.
- Poor treatment while pregnant.
A pregnant employee or new mum should not be singled out for redundancy or termination of employment on these grounds. Nor should they receive inappropriate treatment such as unpleasant comments or harassment on the grounds of their pregnancy.
- Sickness related discrimination.
A pregnant employee cannot be discriminated against for taking time off due to pregnancy related illness, such as morning sickness, and this should be recorded separately to other types of absence.
- Getting maternity pay and benefits wrong.
An employee is entitled to maternity pay but also full contractual benefits while on maternity leave. This isn’t discretionary and employers must ensure they get the payments right.
- Re-assigning the employee’s job role.
A pregnant employee is entitled to return to their original role after the birth and cannot be assigned a new one. You should also include them in normal office communication, such as team emails, while on maternity leave.
- Discriminating against new mums.
Maternity rights continue when a mum returns to work, and she should be granted the same opportunities for promotion and advancement throughout the pregnancy and on return to work.
- Recruitment decisions.
Even if a woman is very heavily pregnant at interview, an employer is not entitled to refuse to employ them based on their pregnancy or their perceived ability to cope as a new working mum. It’s therefore advisable to avoid questions like ‘who will look after the baby when you work’ – you wouldn’t ask a man this!
Maternity discrimination simply shouldn’t happen in a modern society with good legal protection – but it does.
As an employer, we’d advise you to get in touch to ensure your policies and procedures are up to date – we’re always happy to offer advice to support your HR team. It’s also worth offering training to line managers so they understand what’s required.
If, however, you are an employee who has experienced maternity discrimination within the previous three months, you could be entitled to take your employer to a tribunal.
For more information on employment law matters, contact Simon Thomas on 01639 640164 or email firstname.lastname@example.org