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14 September 2015

Motherhood should not be bad for business

Discrimination is forcing thousands of new mothers out of work each year, new research suggests.  Employment lawyer Kathryn Fielder looks at the rights of pregnant employees and those on maternity leave, and advises how employers can avoid discrimination claims. 

In a recent poll of more than 3,200 women across the UK, the Equality and Human Rights Commission claims one in 10 females are dismissed, made redundant, or treated so poorly they quit their job after having a child.

As an employer it can be difficult to balance the needs of your business with the rights of employees and this is particularly true in relation to pregnancy and maternity rights.

Different types of discrimination

Pregnancy and maternity discrimination can occur where an employer:

  • treats a female job applicant or employee unfavourably because of her pregnancy or a pregnancy-related illness; or
  • treats a female employee unfavourably because she is on statutory maternity leave, wants to take leave, or has taken leave. 

Examples of unfavourable treatment include refusing time off for antenatal care, demotion, dismissal because of pregnancy, failing to give a woman on maternity leave a pay rise, taking pregnancy-related sickness into account, and the denial of training or promotion opportunities because of pregnancy or maternity leave. 

A failure to carry out a risk assessment and alter working conditions or hours of work to avoid a significant risk to the health and safety of new or expectant mothers, or their babies, may also be unlawful pregnancy and maternity discrimination. 

If a woman’s job is potentially made redundant whilst she is on maternity leave, she has a priority right to be offered any suitable alternative vacancy with the employer. A failure to do this could be discriminatory. 

An employee who is pregnant or on maternity leave may also have a claim for indirect sex discrimination, sexual harassment or victimisation. 

Who is protected?

A wide range of individuals are protected from discrimination, including job applicants, employees, apprentices, partners, agency workers and some self-employed contractors.  Although the right to statutory maternity leave and pay only applies to employees, a much larger group of individuals benefit from the right not to suffer discrimination at work because of pregnancy or maternity leave.
For example, rejecting a job applicant because she is pregnant or replacing an agency worker because she is off sick with pre-eclampsia could be discrimination.  In the case of employees, the protection starts from day one of employment. 

Employment tribunal claims

If a job applicant, worker or employee believes she has suffered pregnancy or maternity discrimination, she can bring a claim in the employment tribunal.  If her claim is successful, the tribunal can award unlimited compensation, which includes a sum for injury to feelings.  In some cases, the tribunal may also make a declaration as to the party’s rights or make a recommendation. 

In order for the woman to be able to bring a claim, her employer must know, believe or suspect that she is pregnant. 

How to avoid claims

Here are our top six tips for avoiding claims for pregnancy and maternity discrimination:

  1. Carry out a risk assessment as soon as you know a worker is pregnant and make changes to her working conditions, role or hours as necessary.  Keep it under review as the pregnancy progresses. 
  2. Take any complaints about bullying or harassment seriously and carry out a full investigation. 
  3. Ensure your employment policies clearly state that you give paid time off for antenatal appointments and you do not expect a woman to make up the time. 
  4. Take legal advice before taking disciplinary action against a woman who is pregnant, especially if it is for a pregnancy-related illness. 
  5. Review your redundancy selection procedure.  If the role of a pregnant woman or woman on maternity leave is potentially made redundant, ensure you offer her any alternative vacancies and consult with her fully, even if she is not at work. 
  6. Keep-up-to-date with entitlements to family friendly leave and pay.  Update your employment policies to cover flexible working requests and shared parental leave. 

To speak with a member of the employment law team about discrimination in the workplace, call 01753 279029 or email employmentlaw@bpcollins.co.uk.

Stay in touch

Phone: +44 (0) 1753 889995

Email: enquiries@bpcollins.co.uk

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