Reward insight
Discrimination during pregnancy
Daxa Shah, employment law consultant with the ELAS Group, shares top tips
T o help avoid a discrimination claim and prevent any issues from arising when an employee is pregnant employers should consider the following advice. Firstly, and most importantly, you should always document and deal with any performance reviews or issues when they arise or as soon as reasonably practical. If any action needs to be taken against an employee with regards to their conduct or performance then its better if you can show evidence that the decision to take action whether in the form of letter of concern or discipline with outcome of a warning or dismissal is purely due to their performance and conduct rather than the fact that they are pregnant. If left to fester, the danger is that it can look like any issues are being raised due to pregnancy and the concerns are just an excuse. The key to avoiding potential issues with a claim is to ensure that you carry out a thorough and full investigation prior to any disciplinary meeting, probation review or employment review. Where there are any potentially contentious issues involved, we recommend taking the longer procedure of any process as best practice, regardless of whether or not the employee is under the two-year service mark which means they are not eligible to make a claim. If there are any issues pertaining to discrimination (including pregnancy) then the employee will have the right to claim automatic unfair dismissal as well as discrimination, regardless of their length of service. When an employee notifies you that they are pregnant, it’s important that you carry out a risk assessment to ensure that they have safe working conditions while pregnant. Always ensure that these risk assessments are carried out swiftly, any necessary adjustments made and records
kept in the employee’s personnel file; you should give the employee a copy as well. Intermittent risk assessments should be carried out as necessary throughout the pregnancy. ...carry out a risk assessment to ensure that they have safe working conditions while pregnant Make sure you comply with all basic minimum rights such as allowing your employee time-off for antenatal appointments. Try to be supportive to your employees, especially those who suffer really bad pregnancies. Let’s face it – pregnancy is not smooth sailing for all and having the additional stress of an employer who violates their basic employment rights will only make things worse. If any sickness absence does occur during the pregnancy and the employee needs to be brought into a disciplinary hearing – for example, their Bradford factor has triggered disciplinary action or their absence is unacceptable – then any illness pertaining to their pregnancy should be discounted and not considered for absence purposes. It is not unknown for pregnant employees to occasionally take advantage of their pregnancy. If an employee does bring a claim to tribunal and you are looking to settle the claim prior to the tribunal hearing, then you should ensure that the business is protected by executing a settlement agreement. Not only does this agreement protect against claims going forward but it
also has confidentially clauses which will be beneficial to your business. Waiving all rights to claim is part and parcel of any settlement agreement although, unfortunately, it may cause frustration to genuinely aggrieved employees who could be left feeling that justice has not been served. If an employee feels very strongly about how they have been treated, then they may feel that the only way to get justice is to see the case all the way through to tribunal. This comes down to personal choice for the employee, how important this is to them and how strongly they feel about the mistreatment. Finally, it’s important to note that under regulation 10 of the Maternity and Parental Leave etc Regulations 1999, women on maternity leave have the right to return to the same job when they come back to work from their maternity leave. If you are looking to make redundancies, then you should ensure that female employees who are pregnant or on maternity leave are given priority during any selection process. n At the end of 2016, the Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission released the results of their research into pregnancy discrimination. They found that: ● one in nine mothers reported that they were either dismissed from their jobs, made redundant or made to feel as if they had to leave their jobs, and ● one in five mothers said that they had experienced harassment from their employer and/or colleagues while pregnant. Following on from that research, the government announced that it would consider strengthening the laws against discrimination for new and expectant mothers.
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Issue 32 | July/August 2017
| Professional in Payroll, Pensions and Reward |
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