The treatment of women during or on return from maternity leave has hit the headlines recently, with reports of many being forced to leave their jobs and the significant drop in earnings if they remain in employment. What should employers be doing?
The Institute for Fiscal Studies recently published a report showing that the hourly earnings of women falls steadily after they become mothers so that, after 12 years, their pay rates are 33 per cent less per hour than men.
This so called 'mum tax' is put down to women returning to work part-time after motherhood which restricts opportunities for promotions. Female employees who take time away from paid work - mostly to have children - return on an average wage that is 2 per cent lower than their previous earnings, and struggle to keep pace with wage growth among men and non-parents.
The Women and Equalities Committee recently published a report on maternity discrimination and called for legislation to make it harder for women to be made redundant during and after pregnancy. It found that the number of expectant and new mothers forced to leave their jobs has almost doubled since 2005 and now stands at 54,000. Research from the former Department for Business, Innovation and Skills and the Equality and Human Rights Commission found that 11% of pregnant women and mothers reported being either dismissed, made redundant when others in their workplace were not, or treated so poorly they felt they had to leave their job.
Ten top tips for employers
Many employers fail to understand the legal protections in place for pregnant employees or those on or returning from maternity leave. We set out below our top ten tips for avoiding the common pitfalls.
1. Don't ask a woman about her family at interview
It is important that managers understand they cannot ask job applicants or promotion applicants about matters such as childcare arrangements or (for women who are pregnant) about their plans for maternity leave and childcare at interview. Any suggestion that a recruitment decision has been based on an employee's pregnancy or family plans is likely to amount to pregnancy and maternity discrimination. Managers should be reminded to stick to exploring the job applicant's skills and ability to perform the job at interview.
2. Avoid inappropriate comments about pregnancy
Managers should be mindful of making negative comments to their reports who announce they are pregnant; an unguarded comment could amount to harassment. In Wilson v Provincial Care Services Agency and others a tribunal in Northern Ireland ordered a care worker's former employer to pay her £9,500 after it failed to provide her with a reference. The tribunal found that a manager had made the following comments to her 'This is what happens when you have babies' (when she resigned because she could not balance her working hours with her childcare arrangements) and she was 'the big girl who wanted a baby and did not want to work' (when she tried to get a reference from her former employer).
3. Carry out a risk assessment
Under health and safety legislation employers should carry out risk assessments for pregnant employees and new mothers and take action if risks are identified. This could include altering the employee's working conditions or hours of work, offering the employee any suitable alternative work or, as a last resort, suspending the employee on full pay if there is no suitable alternative work available.
4. Allow pregnant employees to attend antenatal appointments
All pregnant employees have a statutory right to paid time off during working hours 'for the purpose of receiving antenatal care' regardless of hours worked or length of service. Employers must therefore ensure that they accommodate the employee's requests for time off work to attend such appointments.
5. Don't penalise a woman who is sick during her pregnancy
Pregnancy-related illness, such as morning sickness, could result in discrimination if the employer treats a woman less favourably because of performance issues that are the result of pregnancy sickness or takes pregnancy-related sickness absence into account when dismissing an employee who has reached a certain level of sickness absence.
6. Remember employees on maternity leave
It is easy for employers to 'forget' about employees once they are no longer in the workplace. However, employees on maternity leave have the same rights to be consulted on issues, such as redundancy or reorganisation exercises or any changes to terms and conditions, as those still in the workplace.
Women should also be given information about pay rises, bonuses and internal vacancies including promotion opportunities. Maintaining contact with female employees on maternity leave to keep them informed of developments in the workplace, from team changes to strategic plans, will also help the employee's smooth return to the workplace.
Employers should also bear in mind that employees may work for up to 10 'keeping in touch' days during which they can carry out work for their employer, such as attending meetings or training courses, without bringing their maternity leave to an end.
7. Allow an employee to return to her old job following maternity leave
It is not uncommon for employers to want to retain the employee providing maternity cover in that role, or for an employee returning from maternity leave to find that her job has changed beyond recognition. However, employers should be aware that an employee returning to work after ordinary maternity leave has the right to return to the job she occupied before her maternity leave, and if she has taken additional maternity leave she has the right to return to her original job unless this is not reasonably practicable, in which case she has the right to return to another suitable job, on terms no less favourable.
8. Handle requests for flexible working properly
Employees returning from maternity leave often ask to change their hours of work to accommodate their childcare arrangements. Although there is no automatic right to change to part-time working, employers should consider any requests they receive and make sure that, if the request is rejected, the reasons for rejection come within the 8 statutory reasons, such as inability to meet client demands or inability to redistribute the work among colleagues. An unjustified refusal to allow an employee to work part time after having a baby is likely to constitute indirect sex discrimination.
9. Handle redundancy situations fairly
A pregnant employee or an employee on maternity leave can be made redundant in a genuine redundancy situation provided that she is treated fairly and is not selected on the basis of her pregnancy or maternity leave. So, for example, if attendance is used as a selection criterion, any absence related to pregnancy or maternity leave should be discounted. Employees on maternity leave whose role is redundant have the automatic right to be offered a suitable alternative vacancy where one exists.
10. Give returning employees the same access to development opportunities
Employers should ensure that an employee returning from maternity leave is offered the same opportunities as other staff for career development, training and promotion. Employers should also be mindful of how such opportunities are offered to ensure that the criteria set do not place women with childcare obligations at a disadvantage compared to other employees. For example, if a training course requires an employee to be away from home for long periods or involves very long days the employer may have to rethink how the training is delivered.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.