The facts and fictions of maternity leave
With headlines such as “army faces £1.1m claim from former soldier over lack of childcare support” and “sidelining of senior pregnant employee leads to top compensation award”, it is hardly surprising that employers are often cautious when dealing with workplace issues relating to pregnancy, maternity and childcare. Are pregnant employees ‘untouchable’ in the workplace?
We consider five common pregnancy, maternity and childcare related issues with a view to confirming the truth or nipping those myths in the bud:
1. An employer should never ask a candidate about their family setup or their family plans at an interview.
True – it is always advisable to avoid such questions. Asking such questions opens up an employer to accusations that a decision not to recruit resulted from the candidate’s responses. A candidate may then rely on the interview questions to evidence a sex discrimination claim. Only questions which relate objectively to the role being recruited for should be asked and they should be asked of all candidates. For example, when recruiting for a position which requires overnight on-call duties, it would be reasonable to ask about a candidate’s ability to be available for such duties, but not necessarily to probe beyond that.
2. A pregnant woman should always be granted paid time off for maternity related appointments
True – the statutory obligation provides that a pregnant employee is entitled to paid time off for antenatal care. The extent as to what kind of appointments should be included within the scope of this provision is unclear, but it certainly includes medical examinations. It may also include other sessions such as relaxation classes or parenting classes, but only if they have been recommended by the employee’s GP or medical adviser.
An employer is entitled to ask for evidence of antenatal appointments. The employer may also request that appointments are made at times which cause less disruption to the business, for example at the beginning or end of the day.
3. Employees with young children have the right to work part-time
False – an employee does not have the right to work part-time. However, an employee (provided that they have more than 26 weeks’ service and has a child aged 16 or under) has the right to request to work flexibly, which amongst other things, includes the right to request a change in hours or a change in the location at which they do their work. An employer is not obliged to grant a flexible working request. However, upon receipt of a request, an employer is obliged to follow a procedure and it must properly consider the application.
4. It’s easy for an employer to refuse a flexible working request
True (but also false!) – an employer is required to consider a request properly and it may only reject an application for one of eight statutory reasons. The employer is also required to provide ‘sufficient explanation’ as to why the request has not been granted. Whilst an employer is required to give a reason, the basis for the refusal does not necessarily have to be reasonable, and it will be rare for an employer not to be able to rely on at least one of the statutory reasons. Generally speaking, it is difficult for an employee to challenge an employer’s reasons for denying a request, unless the decision has been made on a factually incorrect basis. So, from that point of view, it is easy for an employer to refuse.
However, that doesn’t mean that employers can turn down requests without risk. Failing to give good reasons for refusing a request may give rise to a claim for sex discrimination. It is advisable therefore for an employer to keep a paper trail of the considerations that were made when the request was considered. Employers should be ready and able to objectively justify their decisions on the basis of business reasons in order to avoid a claim for sex discrimination.
5. Those who are pregnant or on maternity leave should be excluded from any redundancy procedure
False – it is perfectly legitimate to include a pregnant employee in a redundancy procedure, in fact, failure to do so may give rise to complaints from other employees if they are being treated unfairly by comparison. However, an employer should exercise caution because where a pregnant employee is selected for redundancy, she may claim that her selection for redundancy was made on the basis of her pregnancy or maternity leave. If so, then this will give rise to a potential claim for automatic unfair dismissal and sex discrimination.
The law relating to maternity and redundancy provides for one of the unusual, but very clear, examples of positive discrimination. If an employee is absent on maternity leave at the time that a redundancy situation arises, an employer must consider suitable alternative work for all employees affected. Those employees who are on maternity leave are required to ‘jump the queue’ for the available suitable positions and must be offered them before others. Again, an employer’s failure to meet this requirement may give rise to claims for automatically unfair dismissal and sex discrimination.
However, even trying to be fair to those on maternity leave can get employers into hot water. The recent case of De Belin v Eversheds dealt with a redundancy selection process. The criteria included an assessment of financial performance over the previous year, which included time when a female employee had been on maternity leave. In order to avoid discriminating against her, the employer inflated her score on that criterion to the maximum. This meant that another (male) employee scored worse than her and was selected for redundancy. He successfully claimed unfair dismissal and sex discrimination, and the Tribunal found that the employer should have tried to look at another way of scoring, such as looking at an alternative period, rather than simply awarding the maximum. It is however easy to see how the employer could have faced claims from the female employee if they had not afforded her special treatment, and this case demonstrates how difficult the balance can be.
If you have any questions on any of the above issues, or would like advice on any aspect of employment law, then feel free to contact a member of the Pure Employment Law team on 01243 836840 or you can email us at enquir[email protected].