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Maternity Law: What new and expectant mums and businesses need to know to avoid discrimination claims

A recent parliamentary report states that pregnant women are facing ‘unacceptable levels’ of discrimination in the workplace. Over the last decade, the number of new and expectant mothers forced to leave their place of employment due to discrimination has doubled. The number now totals 54,000 women.

The House of Commons Women and Equalities committee is calling for a new German-style law and system. It proposes that employers would be forbidden from making women redundant during and after pregnancy, except in very exceptional circumstances such as a gross violation of workplace conduct.

At present, however, employment law regarding pregnancy and maternity is unchanged in the UK. It is vital that new and expectant mothers and businesses are aware of the current law, so that they can create the most beneficial working arrangements for both parties and secure the rights of new mums in the workplace.

Rights available to pregnant employees

The law strictly prohibits unfavourable treatment of a pregnant employee or job applicant by a business. A woman cannot be discriminated against in her place of work or be denied a career opportunity due to her pregnancy, or an illness she has suffered as a result of her pregnancy. This protection lasts from when her pregnancy begins until the end of her maternity leave, or when she returns to work, if earlier.

Expectant mothers are entitled to reasonable paid time off for ante-natal appointments during working hours, and the business is entitled to ask for evidence of the appointment. Expectant fathers do not have this legal right, but should be allowed the time off if practicable.

A specific risk assessment should be carried out for all pregnant employees, whatever their job description.

Rights available to new mothers

The ban on unfavourable treatment is also applicable to new mothers, whom, for example, should be considered for promotion equally to all others while on maternity leave. A health and safety risk assessment should also be carried out for all new mothers, regardless of their job description.

Mothers are entitled to 52 weeks of maternity leave and must inform the business at least 15 weeks before the baby is due as to when it is due and when she would like to commence her maternity leave. Mothers are also entitled to statutory maternity pay for up to 39 weeks, although they must have had 26 weeks of continuous service with the business at least 15 weeks before the baby is due. During leave, a new mother is allowed up to ten keeping in touch (KIT) days without losing entitlement to maternity pay or bringing her leave to an end.

Following maternity leave, there are protections in place for new mothers returning to the workplace. For instance, a new mother has the right to request flexible working conditions, such as a change in hours worked. The business must consider the request with due diligence. She also has the right to return to her old job, or a similar job with equivalent status, following maternity leave. In the case of redundancy, the business must offer the new mother a suitable vacancy before it is offered to any other potentially redundant employee.

Filing a legal complaint

If any of the aforementioned laws are violated by the employer, the woman discriminated against has the right to file a legal complaint. If this course of action is decided, the business is prohibited from victimising a job applicant, employee or previous employee for making the complaint.

In very limited circumstances, pregnancy and maternity discrimination may be permitted. A business may be allowed to treat women differently to comply with legislation designed to protect pregnant employees and new mothers.

A business could also be held liable if one employee discriminates against another if they have not taken reasonable steps to prevent the conduct from taking place. It could also be liable for the harassment of an employee by a third party, such as customers or visitors.

If a job applicant or employee succeeds in a claim for pregnancy or maternity discrimination, she will generally be awarded compensation, of which there is no limit. However, litigation can involve significant time and costs, which are usually not recoverable.

Avoiding discrimination

In order to avoid the time and trouble of costly lawsuits, businesses must have rules and regulations in place which secure the rights of new and expectant mothers. For example, a business could put into place a policy outlining various flexible working arrangements and the types of conversations line managers should have with new mums upon their return to work.

Mothers must also be aware of their rights to be sure that their employers honour them completely. Current UK law does offer substantial protection to mothers, and knowing what these protections are can help women identify when discrimination is occurring. Better yet, businesses and mothers should have open conversations and work together to avoid any issues entirely.

Taking the conversation further

As a firm with specialists in employment law, we advise that businesses should take extra care to consider employees on maternity leave when making workplace changes. It is important to remember shared parental leave as an option, as sometimes fathers would like to take time off work along with mothers.

We also stress that recent and expectant mothers should seek legal advice if they are aware of any workplace changes that occur whilst they are on maternity leave, as they are well protected under the law. The rise of mothers leaving the workplace due to discrimination could be because they are not aware of their rights and the protection offered to them from an early stage, before the issue occurs.

If you are a new or expectant mum wondering about your rights in the workplace, or a business leader with any queries around the current legislation, do not hesitate to contact us for advice.

Edward O’Brien

Litigation and Employment Solicitor

01258 483601

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