Avoiding Maternity Discrimination – Advice To Employers

A recent report by the work-life balance charity, Working Families, highlights the increase in “family friendly” issues of discrimination in today’s workforce. They highlight basic failings on the part of employers in areas such as pay and benefits of pregnant workers and handing their return from maternity leave. Fathers too are identified as not being allowed to exercise their current, limited rights following the birth of their children.

The great number of rights and responsibilities surrounding the modern, working family means that employers need to act with more care. Discrimination claims are very costly to deal with whereas taking steps to avoid them are not necessarily so.

Once the employee has notified you of the pregnancy, communication is key. You have a responsibility to organise and carry out risk assessments to identify and reduce any risks. The MATB1 certificate will help you discuss the planned start of maternity leave with your employee. You can also discuss whether the employee wishes to take their annual leave before the maternity leave commences.

Employers often create Employment Tribunal claims for themselves at this early stage, when dealing with pregnant workers, because they do not forward plan with the help of the employee.

Section 55 and 56 of the Employment Rights Act 1996 provides for reasonable, paid time off during working hours to receive ante- natal care. Nevertheless, remember that it may be reasonable for you to refuse time off during working hours if your employee could reasonably arrange ante-natal appointments outside of working hours.

Whilst an employee is away on maternity leave, they are still employed by you. Their contract of employment, in all key respects, continues as normal when they are absent. Remember, regardless of an employee’s length of service, they will be entitled to up to 52 weeks maternity leave. Prepare for the employee’s return even at this stage by implementing short-term maternity cover with fixed-term employees or agency staff. You could opt to reduce costs by distributing the employee’s key tasks and functions to others in the department.

Your employee on maternity leave should not be forgotten about. Consult with the employee if any major changes occur in the workplace, such as re-organisation or redundancy. The Maternity and Parental Leave etc. Regulations 1999 provide for the employee to take up to 10 Keeping-In-Touch days (‘KIT days’). Use that as a chance to maintain reasonable contact with the employee. These KIT days are generally paid.

It is on the employee’s return from maternity leave that employers tend to leave themselves open to the most risk of Employment Tribunal claims. Be wary that discrimination takes various forms. Sometimes it can be what you do and what you fail to do which can lead to costly claims of direct and indirect discrimination.

Your approach to an employee returning from Ordinary Maternity Leave (OML) should be that she is entitled to return to the same job in which she was employed before her absence. Her terms and conditions should be the same, and certainly not less favourable than they would have been, had she not been absent. This should not be an onerous ask if you took steps to properly cover the employee’s duties whilst she was absent.

Of course there is more flexibility for employers when an employee returns from Additional Maternity Leave (AML). The employee is entitled to the same job, unless it is not reasonably practicable for her to return to that job. A warning though, you should not use this subtle difference in the returning rules between OML and AML as an opportunity to demote the employee. If the job still exists, employers are advised to put the employee back into that role. If there are historical performance issues to address with the employee, utilise your performance management processes to address them when the employee returns to her previous role.

The role of the father is catered for currently and you should not neglect their limited rights. A father who has 26 continuous weeks service (ending with the week immediately prior to the 14th week before the expected week of childbirth) can take the modest one week or two continuous weeks Ordinary Paternity Leave to look after the child or baby’s mother.

It is not enough for employers to turn down flexible working requests simply because they feel they have a “business case” for refusal. An employer has to actively consider such a request before refusing it on the grounds set out in section 80G of the Employment Rights Act 1996. In practice, this means really getting to grips with why you cannot accommodate a modest change in the employee’s working hours so they can place their child in Nursery or why a job-share is unworkable. Alternatives to the employee’s own request should be considered to reach a compromise, where possible. Experience of Employment Tribunals suggests that rigid application of Flexible Working policy, although clearly advisable, is not always enough to stop a disgruntled employee from succeeding with a flexible working request type Tribunal claim.

The legal landscape on “family friendly” legislation will not get any easier for employers. The proposals to allow parents to share maternity leave and pay will result in employers having to place renewed focus on employee rights in this area. Clear policy on employer’s responsibilities will help clarify any ambiguity, but effective communication and common-sense are the employers’ best tools to avoid falling foul of the rules.

(Courtesy of the Equal Opportunities Review and B. Prajapati, Solicitor)

Camilla Choudhury – Khawaja




Email: camilla@thewomenslawyer.co.uk



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