Pregnancy and maternity discrimination update

8 Sep 2017 By Emma O'Leary

Emma O’Leary assesses the latest recommendations and case law

Enter body text here A recent report by the women and equalities committee revealed that 54,000 women lost their jobs in 2015 as a result of pregnancy discrimination, and that pregnant women and mothers are subject to more discrimination today than they were 10 years ago.

The committee proposed various recommendations and new legislation to protect pregnant employees and mothers from being treated less favourably than their childfree or male comparators. 

UK legislation already places a strict burden on employers to ensure pregnant employees and mothers are protected, treated equally and provided with rights, and to undertake risk assessments when they are informed an employee is pregnant to ensure safe working conditions. The most vulnerable are casual and agency workers who may not have the right to claim unfair dismissal but do have the right not to suffer discrimination. If they were dismissed on the grounds of their pregnancy or the fact they had children, they would still attract protection.

Magorrian v Saliis Ltd is a stark warning to employers of the risks and considerations when a redundancy situation arises that may affect a pregnant employee, or one on maternity leave. The claimant was awarded £9,000 after she was made redundant five months into her maternity leave. While this case was settled, meaning there was no legal finding of discrimination, the company acknowledged that its redundancy process could be improved.

Tribunal fees

The committee also recommended that the government reviews the three-month time limit for bringing a maternity or pregnancy discrimination claim, and reduces tribunal fees. In July, tribunal fees were abolished after the Supreme Court ruled they were unlawful. The committee’s report may have resonated with the Supreme Court, which specifically commented that it found tribunal fees to be indirectly discriminatory to women. The court found a higher proportion of women brought type B claims that attracted a higher fee; these fees had a disproportionate impact on women, contrary to the Equality Act 2010.

Women who feel they have been discriminated against are also likely to be suffering financially while on maternity leave and receiving statutory maternity pay. Previously, tribunal fees may have deterred them from considering a claim but, now this barrier has fallen away, we may see an influx of pregnancy and maternity discrimination claims. Last year, Citizens Advice reported a 58 per cent rise in maternity discrimination enquiries, making an increase in claims even more likely.

Less favourable treatment

It seems so obvious that we should not treat a woman less favourably simply because she is pregnant or on maternity leave, yet many businesses still do so. A recent case saw a claimant on maternity leave awarded almost £5,000 for injury to feelings because her employer hadn’t advised her about a significant investigation involving her. The tribunal found that had she not been on maternity leave she would have been included and, therefore, she 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; a claimant was recently awarded £9,500 when a tribunal found that failing to provide a reference had caused both financial and mental suffering.

In June, Bradford District Apprenticeship Training Agency had to pay £25,000 in compensation to a former employee after a tribunal ruled that she had been unfairly dismissed because of pregnancy. This case seems to have turned on the evidence of the agency, which the tribunal did not accept. This demonstrates that it’s not enough to simply say a redundancy had nothing to do with pregnancy or maternity – there has to be a thorough process and justifiable explanations. The burden is on a company to put forward reasons to counter any claim.

Tips for avoiding discrimination claims

  • Deal with any performance issues as soon as they arise. If they are suddenly raised when an employee announces a pregnancy, it will automatically look as though they’re being raised because of the pregnancy rather than the initial concerns.

  • Ensure swift risk assessments 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.

  • Comply with basic minimum rights; for example, time off for antenatal appointments and supporting women who suffer difficult pregnancies.

  • Document performance reviews and/or any issues. If action needs to be taken with regards to conduct/performance, then you should show evidence that the decision to discipline/dismiss them is purely down to performance/conduct.

  • If any sickness occurs during pregnancy and the employee is brought into a disciplinary hearing for this – ie 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, probation 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 throughout maternity leave.

Emma O’Leary is a partner at Essential Solicitors and an employment law consultant at ELAS

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