Avoiding pregnancy and maternity discrimination!!

Lauren Harkin explains where claims arise and offers tips on how HR departments can help set the right culture.

The figures for pregnancy and maternity discrimination published by the Equalities and Human Rights Commission make for stark reading: one in every 20 women are made redundant during their pregnancy or maternity leave, and 77 per cent of pregnant women or new mums experience some form of discrimination.

Any form of less favourable treatment or being placed at a disadvantage because of pregnancy or maternity is discrimination.

We frequently see pregnant employees not being put forward for additional training when their non-pregnant colleagues are, or complaints that pregnant employees in, for example, professional services firms have not been allocated the best or most interesting work. Then there is the tricky issue of pregnancy-related sickness absence – particularly during early pregnancy. The impact is that the pregnant employee may feel they are not being invested in or valued because they are going on maternity leave.

Issues more frequently occur, however, on the return to work. If there has been an internal business restructure, sometimes those on maternity leave are overlooked during this process because they are not physically at work. Employers should ensure that employees on maternity leave are still involved in any process or consultation from the outset – there is a high risk of a discrimination claim if this doesn’t happen.

Additionally, to make sure employees do not feel detached from their employment it is beneficial to keep in regular contact during maternity leave. Inviting employees for ‘keeping in touch’ days and contacting them about work socials and events are simple steps that will go a long way in ensuring they feel engaged with their employer and facilitating a smooth return to work.

Returning mums sometimes require more flexibility at work. The balance of meeting business needs while accommodating flexible working requests can be difficult. If the line manager is not prepared to deal with a flexible working request, this can create tension and the risk of a legal claim. There are also the additional effects on attendance, performance and employee engagement to consider.

Employers need to have a flexible working policy, ensure managers are trained on the policy and, from the outset, encourage line managers to engage in conversations about the return to work and flexibility.

Shared parental leave

A mum can decide to end her maternity leave early and mum or dad (or both together) can take shared parental leave (SPL) where, subject to some qualifying provisions, they are entitled to statutory shared parental leave pay.

Many companies offer enhanced maternity pay but do not replicate such favourable benefits for dads wanting to take SPL, meaning it is often more financially beneficial for mums to stay off work on maternity leave. According to recent Court of Appeal decisions in Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police (2019) it is not discriminatory to provide mums with enhanced maternity pay and not dads.

In these joint cases, the employees – new dads – were entitled to only two weeks’ paternity leave at full pay, followed by statutory SPL pay. Their female colleagues were entitled to enhanced maternity pay for much longer, followed by statutory maternity pay. The individuals brought sex discrimination claims on the basis they were being treated less favourably because of their gender.

It was held that dads could not compare themselves to women on maternity leave because the purpose of maternity leave was not simply the facilitation of childcare, but to prepare for and cope with the later stages of pregnancy, recuperate from the pregnancy and childbirth, develop the ‘special relationship’ between the mother and the newborn child, breastfeed and care for the child.

It is difficult to avoid the fact that take up of SPL has been low since its introduction in 2015. A large part of this is likely to be down to the fewer enhanced SPL schemes. However, with more mums taking longer periods of time off to care for new babies, this impacts on the gender pay gap in the UK – more pertinent to companies now they have to report on this.

While the government has recently pledged to look into additional rights that should be afforded to mums on return from maternity leave, particularly in relation to extending redundancy protection, any confirmed changes remain to be seen. We continue to see high numbers of grievances by employees who feel they have been treated badly while pregnant at work or on maternity leave, and this continues to be a real problem across many industries.

Lauren Harkin is a partner in the employment law team at Royds Withy King.