There has reportedly been a significant increase in the number of pregnancy and maternity discrimination claims brought to the employment tribunals in the last two years.
However, it is important to consider the type of matters that could give rise to a claim for discrimination and the Citizens’ Advice Bureau has highlighted the most common ten scenarios that are presented to the employment tribunal:
1. Singling out pregnant employees or new mothers for redundancy
In a genuine redundancy situation, pregnant employees or employees on maternity leave are not exempt from redundancy. However, it appears to be the case that redundancy is used as a way to dismiss an employee who is pregnant or on maternity leave. Such conduct can amount to automatic unfair dismissal and direct pregnancy and maternity discrimination.
2. Mishandling requests for flexible working on return from maternity leave
Amendments to hours of work are one of the most common causes of dispute between employers and employees returning from maternity leave. It is common for employers to receive requests from employees to allow them to return to work on a part-time basis. Although there is no automatic right to part-time working, an unjustified refusal to allow an employee to work part time after having a baby is could potentially constitute indirect sex discrimination.
3. Inappropriate comments about pregnancy
Inappropriate comments to a pregnant employee (by managers or colleagues) can constitute harassment under the terms of the Equality Act 2010 should such behaviour cause the individual to feel that their dignity has been violated or that they are being subjected to an intimidating, hostile, degrading, humiliating or offensive environment.
4. Health and safety breaches against pregnant employees or new mothers
Health and safety legislation makes provision for risk assessments to be undertaken by employers for pregnant employees and new mothers. If these rules are not abided by, this could give rise to claims of discrimination.
5. Penalising a woman who is sick during pregnancy
If a pregnant employee is subjected to disciplinary action or is dismissed as a result of pregnancy-related illness, such as morning sickness, this could give rise to a claim for discrimination.
6. Failure to communicate with an employee on maternity leave
Employees on maternity leave should be consulted regarding ongoing workplace matters. It has been reported that employees on maternity leave often feel “cut off” from communication during their leave. For this reason, managers are allowed to make “reasonable contact” with employees who are on maternity leave.
7. Failure to pay an employee on maternity leave properly
An employee is entitled to all contractual benefits, except ‘remuneration’ whilst on maternity leave. If this is not the case, then this could give rise to a claim for discrimination.
8. Failure to allow an employee to return to their original role following maternity leave
An employee is entitled to return to the job role held before the commencement of her maternity leave, if returning to work after ordinary maternity leave (no more than 26 weeks’ leave).
If an employee exercises their right to additional maternity leave (more than 26 weeks’ leave), she should return to her original role unless it is not reasonably practicable, in which case she should return to another suitable role, on terms no less favourable.
If this is not adhered to, a claim for discrimination could be pursued.
9. Failure to allow a new mother the same opportunities
Employers should ensure that an employee returning from maternity leave is offered the same opportunities as other staff members for career development, training and promotion. If this is not the case, there may be a claim for discrimination.
It is blatant pregnancy and maternity discrimination to base a recruitment decision on an employee’s pregnancy or family plans. The employer should assess the applicant’s ability to perform the job role solely.
What should you do if you have been discriminated against?
If you feel that have been discriminated against; you should do something about it.
Firstly, you should raise a grievance with your employer. You may also be able to bring a claim in the employment tribunal under the Equality Act 2010, and you should seek legal advice in respect of this.
Please be aware that strict time limits apply, and you only have three months less one day of the discriminatory act to bring a claim for discrimination in the employment tribunal.
If you need further advice regarding discrimination, please contact our department on 0175 321 6399.
By Gemma Wilson, employment and discrimination advisor