Supermarket chain Morrisons hit the headlines recently when it was ordered to pay £60,000 in damages for discriminating against a worker whose role changed dramatically after she returned from maternity leave. Michael Hibbs looks at the law around maternity discrimination and offers some useful advice for employers.
Morrisons is the most recent, notable employer to be sued for discrimination related to maternity. Last month the retailer was ordered to pay approximately £60,000 in damages to a former employee.
The case centred around a part-time worker who claimed that when she returned to work after maternity leave, she was expected to fulfil the responsibilities of a full-time role, despite only having a part-time contract.
When she complained about the arrangement, she was told to “prioritise things a bit better” and to improve her mindset. She then raised a grievance.
Common occurrence
While this case may seem surprising, government figures show that 77% of mothers feel that they have had a negative, or possibly discriminatory, experience while pregnant, on maternity leave or when they returned. One in nine mothers feel forced by their employer to leave their job while on or returning from maternity leave.
Sex and maternity discrimination
Morrisons ordered to pay £60k for sex discrimination
Compliance officer’s sex discrimination claims upheld
Some employers fall into the trap of making assumptions about the employee when returning to work, for example believing that they will want reduced hours, or to change their role to a less demanding one. In some cases, employers have reduced an employee’s responsibilities or hours without consultation.
Employees are protected by Regulation 18 of the Maternity and Parental Leave Regulations, which states that the employer must return the employee, except in limited circumstances, to the same position as before the absence.
Employers have no right to make any assumptions about an employee’s wishes or capabilities after they have a child, and changing a person’s job will leave the business vulnerable to legal action.
Changing needs
Maternity leave can often stretch to over a year in total and the needs of a business can change during that time.
In these circumstances, this might mean that the person’s role is no longer required, and they are eligible for redundancy. This is a delicate situation and must be handled carefully. The onus is on the business to prove that it is not being discriminatory because the person is on leave or has recently returned from maternity leave.
Employers must demonstrate that the returning person is being fairly treated against the other candidates, and they must have priority for any other vacancies in the business even if it is not exactly the same job role.
The government is now backing the Pregnancy and Maternity Discrimination Bill, a private members bill due to become law in 2023 that will make it illegal to make a person redundant within six months of them returning to their job after taking maternity leave.
It is important to note that this bill applies to employees that have a pregnancy loss, even if the employer is unaware of the circumstances. However, whilst returning employees are protected from redundancy for six months, they can still be dismissed for performance-related concerns.
Performance discussions
Dismissing an employee for performance-related reasons is also a difficult situation for businesses to navigate. The business must again demonstrate that the employee is being treated fairly, and the performance issues are not due to them having been on maternity leave.
Communication about these normal changes will then make it easier to discuss changes to their role when coming back to work.”
In these situations, it is important to remember the employee is adjusting to coming back to work and becoming a parent and may not be able to perform at their best as they transition to a ‘new normal’. Businesses should ensure that, when managing these decisions, they lead with empathy and compassion, giving as much support as they can before taking disciplinary action.
There is a common misconception among employers that they cannot contact someone who is on maternity leave. This is not only incorrect, but, in some cases, can damage the relationship and trust between the employee and their workplace.
Frequent communication can help a returning employee feel more comfortable and get settled in quicker, as they will be aware of the changes that have occurred over the course of their time off from work.
Communication about these normal changes will then make it easier to discuss changes to their role when coming back to work, whether this is because the employee wants to change their hours or role, or the needs of the business change.
While Morrisons is the most recent employer to be caught, they will almost certainly not be the last. As an employer, ensuring that employees are comfortable and supported when returning from maternity leave, particularly if the leave is an extended absence, should be a priority.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Regular communication and returning the employee to the same or very similar job will minimise the confusion for the employee, making them happier and making the transition as smooth as possible for both the business and the employee.
