Pregnancy in the workplace can pose many operational challenges to employers. But with recent research indicating that around 74% of mothers to children aged under three were employed in 2021, it is more important than ever that business owners ensure their firms remain inclusive so as not to fall foul to any discrimination laws surrounding new parenthood.
How does the law protect pregnant women?
There are three key things pregnant women have the right to:
- Paid time off for antenatal care
- Maternity leave, pay or allowance,
- The protection against discrimination.
It is unlawful to ostracise women because they are pregnant, suffering from any pregnancy-related illness, or plan to take maternity leave. In addition, there could be grounds for a tribunal if an individual is demoted, has their contractual terms changed, or is pushed into returning to work early.
Fair treatment
Discrimination laws protect both existing employees and those being recruited. For example, when interviewing, it is illegal to enquire if a woman is pregnant, plans to have, or already has any children. Asking such questions breaches the Equality Act 2010.
Women do not need to inform an employer they are pregnant until 15 weeks before the anticipated birth, so if a job offer is withdrawn upon discovering a candidate is expecting, the recruiter will risk unfair dismissal claims.
Career progression should not be hampered by parental status. Current employees who are pregnant should be given fair and equal opportunity to apply for any promotions. Refusing applications on the basis that someone is pregnant, directly infringes sex discrimination laws.
New parents must also be treated equally during the redundancy or termination process. They cannot be dismissed for reasons connected to their pregnancy as this would amount to automatic unfair dismissal. If termination is decided upon, employers need to provide full and frank reasoning in writing. Not providing sufficient proof of fair assessment will increase an employer’s risk of facing legal action.
What is the employer’s duty of care?
Pregnancy can impact an individual’s physical and mental wellbeing, and occasionally impair their safety at work. As such, employers should perform risk assessments and adjust working conditions wherever needed to protect the welfare of new/expectant mothers. Failing to do this could amount to pregnancy and maternity discrimination.
Common risks can include long working hours or standing for extended periods, and where practical, steps should be taken to reduce the likelihood they will cause harm. This could mean changing someone’s working hours, or offering longer, more frequent breaks. In select cases, it might mean offering alternate work for the duration of the pregnancy.
Employers cannot legally modify a pregnant employee’s contractual terms without their agreement, so even if health and safety dictates that a role needs to change during pregnancy, pay and benefits should remain unaffected.
Time off work
Expectant mothers are entitled to paid leave to attend antenatal appointments; refusing to facilitate this will result in detriment under the Employment Rights Act 1996. Co-parents are also permitted unpaid leave to attend up to two appointments.
All employees, regardless of how long they have worked for a business, are entitled to 52 weeks maternity leave. However, they must have been employed for at least 26 weeks before 15 weeks prior to the anticipated birth, to remain eligible for Statutory Maternity Pay.
Employees need not take their full maternity leave, either. However, legally they must take a minimum of two weeks off after the birth.
Navigating the return to work
Anyone choosing to take up to 26 weeks of maternity leave can lawfully expect to walk back into their old job. However, those taking more than 26 weeks will only be able to return to their previous position if it is ‘reasonably practicable’. Employers would need a genuine reason to offer an alternative position, however. And it must be on the same contractual terms.
Of course, parents might look to change specific contractual aspects themselves, such as working hours/days to accommodate childcare. As long as they have 26 weeks service, they are entitled to submit a flexible working request. Employers have to consider all appeals fairly, and provide a final decision within three months.
A tactful approach
If someone decides not to return to their job after maternity leave, they must follow the business’s standard resignation process. However, if this is because they are unhappy with how their return has been managed, or they believe they are being constructively dismissed from their role for unlawful reasons, they might seek to raise a formal ‘grievance’.
Becoming a parent can be an emotionally charged time, so staying tactful and following strict protocol is prudent to avoid grievances being raised. With mothers now accounting for an even larger share of the employment market, inclusivity will be essential for attracting and retaining a truly diverse workforce.
- Tina Chander is the head of employment law at Midlands law firm, Wright Hassall, and deals with contentious and non-contentious employment law issues, acting for small businesses to large national and international corporates.