Barring a few unscrupulous souls out there, one hopes that no-one actually wants to discriminate. But unfortunately, when it comes to women and pregnancy, cases of just that are still all too common. Employment legislation relating to maternity does exist and provides clear guidelines on the responsibilities of employers towards their female staff, but it seems many are still unaware of their legal obligations in this field. That’s worrying, since discrimination not only causes great distress to the staff member involved, it helps drive inequality in the workplace, and it can cost your business a lot of money.
Most concerning of all for business leaders is how pregnant women can be victims of discrimination shown to them unintentionally, through a lack of legal knowledge on the part of the perpetrator. Furthermore, some employers are unaware that their employees can be held personally liable for acts of discrimination relating to how they have treated a woman who is either pregnant or on maternity leave.
We can all agree that this is completely unacceptable, from everyone’s point of view. This is no time to bury your head in the sand and pretend the law doesn’t exist – that can only lead to distress and potentially high legal bills. The good news is, there are measures you can put in place to avoid any of this happening in your workplace. It just means taking the trouble to read up on your responsibilities and ensuring that message is conveyed to everyone else.
It’s all about training
If you treat an employee in any way unfavourably because she is pregnant or on maternity leave (whether she’s actually on leave, or exercising her right to it) this is likely to amount to direct pregnancy and maternity discrimination under the Equality Act 2010. A good example of this would be for a manager to express frustration at a member of staff that she is unable to perform certain functions of her role because she is pregnant. Be aware that successful claims against an employer under this legislation are financially uncapped – a thoughtless comment made by one of your managers could cost you serious money.
Training staff will make sure line managers can communicate effectively with employees without discriminating. It will also mean time required away from working during pregnancy can be properly managed, and that the staff member can be thoughtfully reintegrated back into the business after maternity leave.
You can be liable even before you employ someone!
Someone can apply for a job with your company and attend an interview without having to tell you she’s pregnant. If you offer her the job, then she reveals she’s expecting, and you withdraw the offer, this will amount to unfair dismissal, as well as a pregnancy and maternity discriminatory act. Any dismissal connected with pregnancy or maternity automatically amounts to unfairness in the eyes of the law, which then allows a claim to be brought at an employment tribunal.
Have a robust and up-to-date Maternity Policy – and write it down
A big part of the problem is that line managers may not have had many dealings with pregnant employees, which can make them something of a liability. No-one expects everyone in your company to be fully up to date with pregnancy and maternity legislation, which is why a written policy is a very important document for you to have. It will ensure that employees know their statutory rights and what to expect in terms of the procedure in managing pregnancy in the workplace. A written point of reference will also take the pressure of your manager when it comes to having to remember the detail of any training you have given.
So, what should a maternity policy say? What detail should it include? When writing it, ask yourself, do you know the answers to the following questions?
What is the “protected” period for a woman employee when it comes to pregnancy?
What length of time can a woman take as maternity leave?
What health and safety measures must an employer take in respect of a pregnant employee?
What time off is a woman allowed during her pregnancy? What is this time for? Is it paid?
What phrases could your managers use through a lack of maternity training, which will potentially cost you a lot of money?
What can and can’t you do when your employee is sick during her pregnancy?
What notice should a woman provide you with when taking maternity leave?
What are KIT days?
What do you have to pay your female employee when she is on maternity leave?
How does holiday entitlement work while someone is on maternity leave?
These are a few examples of questions you would answer in a Maternity Policy. Make sure it is both easily accessible and easy to read, so as to minimise the risk to your business of uncapped employment claims.
It isn’t all costing you money – how to reclaim Statutory Maternity Pay (SMP)
When your staff are on maternity leave, you can reclaim most of the SMP you pay them. Under current rates business can reclaim 92 per cent of SMP and firms officially classed as “small” (those that pay under £45,000 in Class 1 National Insurance) can reclaim 103 per cent of SMP.
Getting back to work
A big part of your company’s risk of being sued for discrimination lies in the way you behave when your staff member comes back to work. These are the important facts to remember: an employee returning from ordinary maternity leave is entitled to return to the same job she held before she left. If she has taken additional maternity leave, she has the right to come back to a suitable alternative on similar terms and conditions. If your staff member comes back to work and you place her in a different and unsuitable job to that which she had before, without consulting with her in any way, you will be liable to pregnancy and maternity discrimination claims, as well as constructive unfair dismissal.
Pregnancy and maternity leave is something that affects vast swathes of the working population. For a fairer world, we all want to be treated with the respect in the workplace. It might seem as though maternity legislation is there to trip you up, but in reality it is working for a more equal world. Honestly-made mistakes are one thing, but the important thing to bear in mind is to treat staff as you would like to be treated.
After all, children are the future.
