A protected species

The Government has demanded a major investigation into the way employers
treat pregnant women. Here are some of the practical steps employers can take
to ensure they do not fall foul of the law, by Kate O’Callaghan

Despite the legal protection offered to pregnant employees and those on
maternity leave, the number of women subjected to unlawful treatment remains
high.

Such treatment may take the form of a lack of promotion, ostracism, changes
to salary terms, non-payment of bonus, and unfair criticism.

Many women who exercise their rights struggle to return to their
pre-maternity employment status. More extreme, but still relatively common, are
the cases where women are dismissed because they are pregnant or have given
birth.

Only recently, Carol Bonehill, a receptionist, was sent a congratulations
card by her employer, H Adams Electrical Contractors, on the arrival of her new
baby, together with a letter of dismissal and her P45. Such treatment has
prompted the Government to ask the Equal Opportunities Commission to launch a
major investigation into the way pregnant women are treated in the workplace.

For employers, discriminatory treatment can be costly – not only in terms of
their exposure to claims but also in terms of losing talented employees.

Bonehill was awarded £9,000 compensation for the loss of her job, but in the
case of highly-paid employees or those who are treated very badly, an
employer’s potential exposure can work out much higher; Julie Bower recently
won a record £1.4m from Schroder Saloman Smith Barney, after her career was
summed up in a meeting as "had cancer, been a pain, now pregnant".

Employers deserve some sympathy for the difficulties they face in meeting
employees’ competing needs and rights. With employees now able to take up to
one year off on maternity leave, employers could be left with significant gaps
in their workforce and face the predicament of what they should do in the
interim, while keeping the pregnant woman’s job open for when she returns.

Occupational health may also have the difficult task of helping workers who
may feel put out because of the extra pressure they are placed under and
additional work or responsibilities they have to take on while their colleagues
are on maternity leave.

However, there are clearly very strong policy reasons why women should have
these protections and it is something that must be dealt with. As the pregnant
woman is a ‘protected species’, the consequences of not recognising her rights
and entitlements can be severe.

Remember, liability can come from many quarters. Employers can be
vicariously liable for discriminatory comments or actions by other workers.

So, what can and should be done do to ensure the organisation does not fall
foul of the law while continuing to manage the business, and the rights and
expectations of other employees effectively?

In general

– Ensure female employees are aware of their rights

– Remind employees of the need to inform management of their pregnancies, in
order to be eligible for maternity leave and pay

– Training should be provided for managers about the rights of pregnant
women and those on maternity leave, and explained the importance of complying
with the law and the consequences of not doing so

– Ensure there is a formal policy setting out rights, entitlements and
procedures in relation to maternity leave so everyone knows where they stand.

When informed an employee is pregnant, HR and OH should:

– Advise her of her rights and entitlements – statutory and (if any)
contractual

– Carry out a health and safety assessment to identify any risks that could
affect her health or that of her unborn child

– Continue to treat her in the same way as before and as other staff are
treated

– Discuss with her the most appropriate way of covering her absence on
maternity leave. This will depend on the type of work she does, but options
include temporary cover, dividing her workload between other staff, and
postponing specific work projects until she returns

– Allow her reasonable time off for ante-natal appointments (with pay)

– Remind other staff and managers of the dangers of making discriminatory
comments or taking discriminatory action

– Do not make any changes to her terms and conditions or responsibilities
because of her pregnancy without her agreement (unless there are health and
safety reasons for doing so)

– Do not assume her career will no longer be a priority, or important to
her.

While she is on maternity leave, HR and HR must:

– Ensure she receives the same level of pay rise as other employees in the
same position. Her SMP may need to be recalculated if a pay rise is awarded
during maternity leave but is backdated to the period used for calculating her
‘normal weekly earnings’ for SMP purposes

– Keep her updated about any changes within the business

– Ensure other employees are kept up-to-date as to when she is expected to
return

– If a redundancy situation arises follow normal redundancy procedure for
deciding who should be made redundant

– Ensure anyone on maternity leave is kept fully informed about developments
and consult with them as with other employees

– Ensure those on maternity leave are offered the opportunity to take
voluntary redundancy if others are being offered it

– If an employee on maternity leave is selected for redundancy, ensure she
is offered suitable alternative work (if available) for her return. If she
meets the criteria for the suitable alternative position, she has priority even
if there are others who are even better qualified

– Consider any suggestions she makes about suitable alternative employment

– If there is no suitable alternative employment, ensure she receives the
same level of redundancy pay as other colleagues.

On her return from maternity leave, HR and OH must:

– Identify any operational policy changes the company has adopted in her
absence

– Make her feel welcome and consider whether anyone new has commenced
employment who will not know her/any other personal changes

– Offer refresher training, if appropriate

– Offer IT training if any new IT systems have been implemented

– Be patient – it may take her a little time to settle in and regain
confidence

– Consider health and safety issues – carry out a health and safety
assessment

– If an employee comes back when she is still breastfeeding, allow her
reasonable time during the day to either express milk or feed her baby

– Do not assume she will not be entitled to a full bonus because she has
been on maternity leave during the bonus year. In fact, there is a strong
argument that employers should treat her as if she had been in active
employment during her ordinary maternity leave period. Her eligibility during a
period of additional leave will depend on a number of factors such as the type
of bonus scheme in operation, the period to which the bonus relates and so on.
If necessary, take advice

– Give proper consideration to any request she might make to alter her
working hours. Do not automatically accept the views of other managers or of
other employees that the job cannot be done on a part-time or job share basis.
If she has more than six months’ service, you must follow the prescribed
procedure for considering requests for flexible working, which came into effect
in April.

Kate O’Callaghan is a solicitor in Lovells’ employment group

What are pregnant employees entitled to?

Female employees who satisfy the
relevant qualifying conditions (if any) are entitled to:

– Specific health and safety protection for new and expectant
mothers

– Reasonable paid time off for antenatal care

– Protection from dismissal or detriment for
pregnancy/maternity reasons

– 26 weeks’ ordinary maternity leave (OML) and, for those with
the qualifying service, 26 weeks’ additional maternity leave (AML).

This means employees who qualify for AML are able to take up to
a year off in total

– Return to work after OML or, as appropriate, AML

– Statutory maternity pay (SMP). First six weeks at 90 per cent
of average weekly earnings and thereafter at £100 per week (or 90 per cent of
the woman’s average weekly earnings if this is less than £100 per week)

– Protection from sex discrimination

Find out more…

– www.eoc.org.uk, Managing
Maternityin the Workplace

– www.tiger.gov.uk, the DTI’s interactive website

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