Mum’s the word: have I got news for you

The newsflash that presenter Natasha Kaplinsky is expecting her first child may have been met with a mixed response from her new employer.

While Kaplinsky’s new bosses have publicly professed their delight at the news, with the ink barely dry on her £1m a year contract insiders say that they are seething.

Critics have been quick to point out that Kaplinsky would have been around six weeks pregnant (knowingly or not) when she sealed the deal to join Channel Five.

This has instigated a lively debate as to whether a high-flying pregnant employee has any obligation to inform her prospective employer that she is expecting.

Legal obligation

In contrast to the legal position in many US states, under UK law a pregnant candidate has no legal obligation to inform her prospective employer that she is pregnant.

This is the case even if the position for which she is applying is of a fixed term (and she will not be able to see the term through) or if the position is to cover someone else’s maternity leave.

An employer who refuses to employ a suitable female applicant on grounds related to her pregnancy, would face exposure to a claim for direct sex discrimination. It makes no difference if another non-pregnant female employee is offered the post or if there are no male applicants being considered.

An employer who tries to glean this type of information from an employee directly treads a fine line.

A direct line of questioning regarding family plans (in circumstances where male candidates are not asked the same question) can expose employers to a claim for direct sex discrimination.

If an employee volunteers this information, it is unlawful to use it as a basis on which to reject her for a role.

Moral obligation

It has been suggested that by gagging employers from asking the question, the sex discrimination legislation has gone too far.

Many employers say they have felt a sense of being misled upon discovering that an employee has negotiated her employment terms, knowing that she may not be around to see out the first 12 months.

The employer’s requirement to pay Statutory Maternity Pay (which can be recoverable), is rarely the issue here instead, employers point to recruitment costs such as advertising or headhunter fees, which they are forced to re-incur after a short time as a result of the employee being less than upfront about her personal circumstances.

Some suggest that the law forces employers to make assumptions about the female members of their talent pool and the statistics do not making happy reading here.

For example, the Equality and Human Rights Commission has indicated that 70% of recruitment agencies had been asked by their clients to avoid hiring women who were pregnant or likely to get pregnant.

With the figures so high, who can blame a high-flying pregnant employee for wanting to keep the news to herself until her job offer is a done deal? It would seem that the timing of her announcement is the one decision where she can guarantee she is in the driving seat.

Breaking the news

If both the job and the pregnancy proceed smoothly, there will come a point when the employee cannot keep the news to herself any longer.

An employee is required to inform her employer by no later than the 15th week before her due date, although it is generally advisable for the employee to inform her employer earlier – to attain benefits such as a health and safety risk assessment and paid time off for antenatal care.

While the moral debate goes on, it would seem that the answer is to look at the bigger picture. It is perhaps only by addressing the discrimination that remains prevalent in recruitment decisions in the UK workplace, that we will be able to create a workplace where an employee no longer feels the need to keep ‘mum’.

Key points

  • An employee is not obliged to inform her employer she is pregnant until the 15th week before she is due to give birth.
  • It is generally in an employee’s interests to advise her employer if she is pregnant. If she chooses not to, she may be lose the right to maternity benefits including health and safety protection, paid time off for antenatal care and in some cases enhanced maternity pay.
  • Asking a candidate at interview if she is pregnant at interview or planning to become pregnant is likely to constitute an act of direct sex discrimination.
  • If an employee is candid about her intentions to start a family, it is unlawful to discriminate against her on the basis of that information.

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