BABY ON BOARD - TREATING PREGNANT EMPLOYEES FAIRLY
Released On 7th Oct 2022
A recent study from Culture Shift has shown that one in four pregnant employees are concerned to share their pregnancy news for fear of potential discrimination.
Pregnancy and maternity discrimination are one of the most common discrimination claims. Claims raised recently in the Employment Tribunal have included being overlooked for promotion, failing to allow flexible working, offensive comments being made to pregnant employees and sham redundancies. It is hard to get a true picture of the potential number of claims in this area as so many settles before getting to the tribunal stage.
So, what is the legal framework behind pregnancy discrimination? The Equality Act 2010 protects a person from being subject to unfavourable treatment for reasons relating to their pregnancy or maternity leave during what is called the protected period. Pregnancy and maternity do not have to be the only reasons for the unfavourable treatment. Pregnancy or maternity leave only needs to materially influence the employer's decision making (even sub-consciously) for the unfavourable treatment to be discriminatory. The employer must have had knowledge or a belief in the fact of pregnancy.
Recently, it was upheld in the case of Miss Siobhan Black v Ms Evelyn Drain t/a Pat Drain Barbers (2022), that a barber who was dismissed after falling pregnant while on maternity leave had been the subject of pregnancy discrimination. The business had been struggling through the pandemic and there was a difficult financial background. However, the employee was told that she was being made redundant just days after informing the employer of her pregnancy and this was significant. There was also a lack of consultation with any other employees and no proper redundancy process was followed. The employer was unable to prove on the balance of probabilities that the dismissal was not based in anyway on the grounds of the claimant’s newly announced pregnancy.
As an employer you need to be mindful of the risks of discrimination at a time when a pregnant person may be feeling particularly vulnerable. Here are some of the key areas when you need to be considerate:
Recruitment: When recruiting, an applicant does not have to tell you that they are pregnant, nor is it lawful to withdraw a job offer on learning of their pregnancy or later to dismiss them for not disclosing their pregnancy during the recruitment process.
Redundancy: you must not discriminate against employees who are or have been pregnant or are on maternity leave. Think about suitable alternative vacancies in priority to other potentially redundant employees. It is automatically unfair to select someone for redundancy because they are pregnant or on maternity leave.
Promotion: Think carefully about opportunities for promotion, including for those on maternity leave. Employees should continue to be informed of any job vacancies, promotion or training and development opportunities even when on maternity leave.
Exclusion: try not to exclude a pregnant employee from a meeting that they would have attended but for their pregnancy. For example, you may think it is pointless for them to meet a new client because they will soon be going off on maternity leave, however this could be deemed to amount to unfavourable treatment.
Antenatal appointments: ensure you allow pregnant employees paid time off to attend their appointments.
Poor performance during pregnancy: what is the reason for the poor performance? If it is related to their pregnancy, then as an employer you should not take action under any disciplinary or capability procedures.
Flexible working: employers should try to avoid imposing onerous working patterns on those with childcare responsibilities. They should try to be as flexible as possible to identify working patterns that work for both parties. Efforts to reach a compromise position and consideration of individual circumstance will demonstrate that an employer is acting proportionately.
As ever we are here to help if you have any issues or queries in relation to maternity or pregnancy rights or discrimination. We can help you put in place suitable policies and procedures to ensure maternity and pregnancy rights at work are protected and advise you on any related issues, such as flexible working requests, breastfeeding or redundancy situations.
