Almost 2,000 people turned to Citizens Advice for help with pregnancy and maternity discrimination issues between April 2015 and March 2016; an increase of almost 25 per cent on the previous year. A survey conducted by the Equality and Human Rights Commission recently revealed that three in four mothers had negative or possibly discriminatory experiences during pregnancy, maternity leave, and on returning to work.
In the light of this apparent increase in pregnancy and maternity discrimination, it’s more important than ever that employers take steps to support new mothers on their return to work. Aside from avoiding potentially costly tribunal claims, there are a number of proven advantages to having a well-balanced workforce including increased staff morale, reduced staff turnover and better overall efficiency.
Pregnancy and maternity discrimination in the workplace is, of course, against the law (except in very limited circumstances). Employers are prohibited from treating employees unfavourably either because of their pregnancy (or an illness arising from it) or because they are on maternity leave 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 pregnancy or maternity, there’s nothing to stop employees claiming 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.
So what can employers do to minimise claims and ensure they are properly supporting pregnant employees or those on maternity leave?
1. Make employees aware of their rights
As an absolute 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 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.
2. 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 the effective management of the leave. Effective communication also helps both the employer and the 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.
3. Right to return
It can often be tempting for employers to consider making temporary members of staff covering maternity leave permanent, particularly where they are perceived to be ‘better’ than the employee on maternity leave. Employers need to be careful 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 no less favourable terms. (This right also applies at the end of additional maternity leave although an employer can offer an alternative suitable role if it is not reasonably practical 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.
4. 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 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 as it may ultimately make the difference between an employee returning or not returning 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.