Although many might think pregnancy and maternity discrimination is a thing of the past, it remains a very common form of discrimination and one where employers can easily fall foul of the law.
We have come a long way since the Sex Discrimination Act came into force in 1975 and even since the Maternity and Parental Leave etc Regulations in 1999. However, there are familiar themes we see from instructions we receive around pregnancy and maternity discrimination. In this article we look at some of those themes and at how employers can act fairly and ensure they support employees who are pregnant and during their maternity leave.
Red flags of pregnancy and maternity discrimination
It is common for us to see events like these giving rise to complaints of pregnancy or maternity leave discrimination:
- an employee announcing her pregnancy followed by marginalisation, an airbrushing out of her role and the diversion of duties or responsibilities to colleagues;
- a pregnant employee or one on maternity leave being overlooked for vacancies and promotion opportunities;
- a reduction in inclusion and communication from managers and colleagues;
- fewer invitations to social events, perhaps driven by a mistaken belief that a pregnant employee wouldn’t want to go out or that a woman with a small child wouldn’t be able to do so;
- fewer consultative and informative emails sent in relation to the future direction or strategy of the business;
- a shift in attitude resulting in the pregnant woman feeling less valued;
- blocking attempts to arrange ‘keeping in touch’ days without good reason;
- failing to maintain any reasonable level of communication during maternity leave followed by hasty, ill-thought through discussions being condensed into two or three weeks
- a refusal to engage meaningfully in requests to return to different hours
- mishandling of a return to work, with poorly supported statements made around changes in the business or to the role
- taking steps to retain an employee’s maternity leave cover whilst putting the returning employee into a different role or failing to return all duties and responsibilities once she has returned
- failing to include an employee on maternity leave in consultation around a redundancy situation affecting her role
It is certainly not our experience that pregnancy and maternity discrimination is meted out only by men and even where the discrimination is unconscious, it can have a significant impact on the individual affected and still lead to liability for an employer.
What can employers do to reduce pregnancy and maternity discrimination?
There is, of course, no situation in which a pregnant woman or one on maternity leave should be treated poorly as a consequence. The laws on our statute books act to protect those who are disadvantaged as a result but we work with our employer clients to stop situations ever escalating to that point.
It doesn’t need any business case to support that aim but the challenges of recruitment and retention and that women (and their families) make up a significant buying power should be enough to persuade any wavering employer.
Employers should consider:
Challenge stereotypes
We know that stereotypical assumptions play an important part in this form of discrimination. Employers should be prepared to challenge such stereotypes, leading from the front in their management team.
For example, in Commerzbank v Rajput [2019], an employee on maternity leave was discouraged from attending a quarterly review meeting because of assumptions about what a woman should and should not do on maternity leave. Witness evidence from the employer talked about her attitude to work being “controlling” and an “unhealthy obsession” after she returned to work after her waters broke, whereas male counterparts were praised for their commitment.
The use of stereotypical assumptions is the kind of evidence which can lead a tribunal to draw adverse inferences against an employer. Employers need to take care over any criticism of women who want to remain involved during their maternity leave, particularly if combined with praising male employers for their dedication and hard work.
Be aware of any change in treatment
Be attentive of any change in language or manner towards a woman after she has announced her pregnancy. It may be subconscious but it is not uncommon to see a change in attitude towards a woman once she is known to be pregnant.
Cases have demonstrated that women who have been exceeding expectations prior to pregnancy suffer a decline in the grading immediately after. Upon returning from maternity leave, women are often sidelined and categorised as requiring rehabilitation or lacking in recent experience. Such gradings have a lasting impact on a woman’s career and can put her behind the starting line when it comes to succeeding in competitive processes for promotion or at the front of the line in redundancy scoring exercises.
Pregnancy is not a reason to avoid addressing performance concerns but you should ensure that these are picked up, discussed and addressed fairly, reasonably and in a timely manner. Honest 1:1 discussions throughout employment avoid this bear trap.
Consultation must include absent employees too
Ensure consistency of workplace communication.
When changes are happening (for example: restructuring, redundancies, TUPE consultations), make sure you include those on maternity leave, even if they have suggested they don’t want to be informed. Far better to send a communication to an absent employee which they can choose to ignore than to send nothing. Do not leave it until an employee is about to return to inform her of material changes to her role or the business.
In particular, there are specific rights which apply to women on maternity leave where a redundancy situation arises and excluding them from consultation could lead to an automatically unfair dismissal, as well as a discrimination claim: see our article here.
Keep in touch
Aim for active engagement with an employee on maternity leave to maintain her sense of involvement, self-worth and value to the organisation. Actively work to retain her interest and motivation. She is a valuable employee whom you have probably put a lot of time, money and effort into over the years; don’t risk losing that.
How often are emails sent to an employee on maternity leave who has expressed a wish to be communicated with? Does her line manager even have her private contact details or asked her whether she wishes to receive communications? Have there been telephone calls or offers to attend team events as a ‘keeping in touch’ (KIT) day? It is all too easy for an employee on maternity leave to feel ‘out of sight, out of mind’; keeping in touch reassures her that that is not the case.
Avoid assumptions
It may be that you will need to make some changes to a pregnant employee’s role but make sure that you carry out a proper risk assessment in conjunction with her rather than making stereotypical assumptions about what you think she can or should do (or not). The same approach should also be taken for new mothers returning from maternity leave.
Inform them of opportunities
Make sure that you give a pregnant employee or one on maternity leave the same opportunities for promotion as you would any other employee. Women on maternity leave should be informed that vacancies have arisen or promotion possibilities exist and you should offer them assistance to compete on the same terms as those that have remained in the workplace throughout the period when she/they have been absent.
Consider a returner’s induction
Remember that returning from maternity leave can feel alien and difficult. They’re not new employees in your organisation but they may well have been away from the workplace for a long time.
Employers should be mindful of the mix of emotions which may be in play and be open to discussions around that.
Introduce and normalise bespoke training for women who are on maternity leave or are returning. A failure to inform them or to consider them misses valuable opportunities for that employee being able to return and hit the ground running.
Make sure, too, that their workspace and any equipment is ready, waiting and working for them on their return.
KIT days
Use KIT days effectively and be open to ideas about what form this might take. Consult with the employee but be pro-active in considering opportunities for KIT days and suggest them to her, rather than awaiting her enquiry as to when she can return.
Celebrate the birth
It is a life changing event for the employee. Does it matter to the employer? At all?
Plan for her return
A lot of the problems we see around maternity leave returns stem from a lack of planning. It is, of course, an employee’s choice about how much leave she takes and whether she wishes to return on different working arrangements but maintaining open and effective lines of communication will avoid bad feeling arising and put both employer and employee in a far better place to plan.
Employers should look carefully at how an employee’s duties, work and responsibilities have been handled whilst she has been off and make sure that proper plans are in place for these to be transitioned back to her. Whilst it may not be possible for her to take everything back immediately on her return, the expectations of those who have covered duties will need to be managed too so that they understand they will not be keeping those new duties or responsibilities. An argument that roles have ‘naturally developed’ or ‘moved on’ will be difficult for an employer to sustain.
If, as an employer or line manager, are too busy to speak to an employee about planning for her maternity leave or to meet with her or show any interest when she calls in after several months of maternity leave, you risk alienating that employee. Your actions will not go unnoticed with other employees and the repercussions can be significant.
We commonly advise employers on their obligations to pregnant employees and new mothers and whenever you have concerns, and preferably at the earliest stage, seek legal advice.
If you have any further enquiries regarding pregnancy and maternity discrimination please feel free to contact our Employment Team and we would be happy to help.