Pregnancy And The Workplace
It seems so obvious that we should not treat a woman less favourably simply because she is pregnant or on maternity leave yet still, in 2018, it appears as if we do. A 2017 case saw a claimant on maternity leave awarded almost £5,000 in injury to feelings alone because her employer had not advised her about a significant investigation that involved her. The Tribunal found that had she not been on maternity leave she would have been included and, as such, suffered a detriment on the grounds of her maternity leave. Failure to carry out a pregnancy risk assessment can also amount to discrimination, as can failing to provide a reference. In the latter instance, a claimant was awarded £9,500 as a Tribunal found that failure to provide a reference had caused her to suffer both financially and mentally.
The case law in this area of discrimination is fairly well entrenched both pre and post the Equality Act 2010. It looks likely to evolve further given the current appetite to preserve and encourage family friendly rights and legislation meaning that this will certainly be an area of discrimination legislation to watch.
A report by the Women and Equalities Commission stated that 54,000 women lost their jobs in 2015 as a result of pregnancy discrimination and claimed that pregnant women and mothers are subjected to more discrimination today than 10 years ago. Whether this is because discrimination in the workplace has actually increased or women are now more willing to report it remains to be seen but, in any event. may be irrelevant. The point is it appears to still be prevalent.
As a result the Commission called for various recommendations and new legislation to protect pregnant employees and mothers from being treated less favourably than their child free or male comparators.
As it stands, UK legislation already automatically places pregnant employees and mothers in a protected category and places a strict burden on employers to ensure that they are treated equally and provided with a number of rights. Employers are also required to undertake a risk assessment whenever they are informed that an employee is pregnant to ensure that they have safe working conditions. Casual or agency workers are generally the most vulnerable as they do not have the right to claim unfair dismissal however, with that being said, they do have the right not to suffer discrimination. If a casual or agency worker was dismissed on the grounds of their pregnancy or the fact they had children then they would still be afforded protection.
When the Supreme Court ruled to dismiss tribunal fees last year, they specifically commented that one of the reasons for doing so was fees were indirectly discriminatory on the grounds of sex. The Court found that a higher proportion of women brought ‘type B’ claims, which attracted a higher fee and as such caused a disproportionate impact on women, which was contrary to the Equality Act. Anyone who did pay fees to bring a claim is entitled to claim a refund.
Since fees have been abolished we have seen a 90% increase in the number of tribunal claims being filed – 3% of which were for sex discrimination. It’s unclear as of yet just how many of these are pregnancy and maternity discrimination claims but there is likely to be a significant number. Women who feel that they have suffered discrimination are likely also to be suffering financially whilst on maternity leave and in receipt of Statutory Maternity Pay only. Whereas previously tribunal fees would have deterred them from considering a claim, now this barrier has fallen away so at least financially they have ‘nothing to lose’. The Citizens Advice Bureau reported a 58% increase in maternity queries in 2017 so watch this space…
Here are some tips for employers to avoid discrimination claims from pregnant employees:
Deal with any performance issues as soon as they arise. If issues are suddenly raised when an employee announces their pregnancy it will automatically look as though they’re being raised on the basis of pregnancy rather than the initial concerns Ensure swift risk assessments are carried out as soon as you are notified of an employee’s pregnancy to ensure that they have safe working conditions. Intermittent assessments can be carried out as necessary throughout the pregnancy e.g. during the current heat wave we are experiencing here in the UK or if any medical issues arise Comply with all basic minimum rights e.g. allowing time off for antenatal appointments and supporting women who experience difficult pregnancies Document all performance reviews and/or any issues. If action needs to be taken with regards to conduct/performance then this will allow you to show evidence that any decision to discipline/dismiss an employee is purely down to their performance/conduct If any sickness occurs during pregnancy and the employee is brought into a disciplinary hearing for this i.e. if their Bradford factor triggers it or the absence is unacceptable, then any illness pertaining to the pregnancy should be discounted Carry out a thorough investigation before any disciplinary meeting, performance review or employment review, taking the longer procedure as best practice – even if employees are under the two-year service mark If there are issues pertaining to discrimination then an employee will have the right to claim automatic unfair dismissal and discrimination, regardless of length of service Keep reasonable communication with employees throughout maternity leave