Avoiding pregnancy / maternity leave discrimination

Do you know why you should not deny training or promotion to staff on maternity leave? Are you aware of two recent cases brought by employees who were pregnant or who were taking maternity leave? Did you know that half of all mothers will not take full maternity leave because they are scared of losing their jobs?

Case law

Pregnancy and maternity is a protected characteristic of the Equalty Act 2010. This makes it unlawful for an employer to treat an employee unfavourably while she is pregnant or on maternity leave. A policy that puts women who are pregnant or on maternity leave at a disadvantage will be unlawful, unless it can be justified, which may be difficult.

Two cases highlight the potential risk of employer’s policies on training and career advancement being discriminatory against employees who are pregnant or who take maternity leave.

The first case involved Ms Keohane and the Commissioner of Police for the Metropolis. Ms Keohane is a narcotics police dogs handler, responsible for two police dogs and paid an allowance for the cost of keeping the dogs. When she informed her employer that she was expecting her second child, it decided to withdraw one of the two dogs from her care, giving as a reason that there were other officers in active employment who could use the dog. The written reasons for withdrawing the dog from her care began by noting that it was the second occasion within 17 months that she had given notice of pregnancy.

Ms Keohane brought an Employment Tribunal claim of direct pregnancy and maternity discrimination and indirect sex discrimination. She argued that the dog’s reallocation would lead to a serious risk that she would return to a working condition which had substantially changed from those prior to her taking maternity leave and that this would affect her career prospects and opportunities to earn overtime.

The EAT agreed that the employer’s reference to it being Ms Keohane’s second pregnancy in a short period of time was direct pregnancy and maternity discrimination. It also held that the policy was potentially indirectly discriminatory, if it could not be justified.

In the second case, a prison officer brought a claim against the Italian Government as it operated a policy which prevented employees from moving to a more senior role if they took maternity leave while they were on a vocational training course. The policy required the employee to take the course at some later date in the future. This had the consequence of delaying a move to a more senior position, and had financial implications in preventing a corresponding pay rise. The European Court of Justice found that the principle of automatic exclusion, which did not take into account the particular circumstances of the employee, such as the stage at which maternity leave took place, or the training already received, was disproportionate and therefore discriminatory. It stated that the Government could provide employees who took maternity leave with additional training to allow them to catch up with others on the course, to help ensure the same opportunity for promotion and increased pay as those employees who had not been on maternity leave.

NCT research

Research by the National Childbirth Trust (NCT) found that 43 per cent of mothers on maternity leave plan to re-enter the workforce earlier than they would prefer. Of these, 47 per cent said this was because of worries over job security.

The poll also found that three in 10 women said they would be worried about job security if they took advantage of flexible working and only 59 per cent of women were even aware they could ask for it.

‘Sally’ is a mother of two from High Wycombe with a senior role in IT

‘While on maternity leave I contacted my employer to discuss my return date. However, the conversation quickly turned and I was being pressured into coming back sooner. My boss described all the pains the business was experiencing and concluded that they needed me back as soon as possible. I went back when they wanted me to but it was too early. In the end it didn’t work out. I was exhausted and I kept getting ill, as did my baby – we were hospitalised twice. My boss never took the time to see how I was doing, but piled the pressure on.’

To read more outcomes from the NCT researcd, click here

Practical implications

Employers must ensure that women on maternity leave are informed of any jobs that become available, including opportunities for promotion and transfer, and must enable them to apply if they wish to do so.

Employers should ensure that their practices, policies or procedures relating to training and career progression do not put employees who are pregnant or take maternity leave at a disadvantage.

Employees returning from maternity leave should be offered the same opportunities for career development, training and promotion as other employees. A decision to withhold, withdraw or delay career advancement because an employee is pregnant or on maternity leave is likely to be discriminatory.

Employers would be wise to reassure their employees about job security while they are on maternity leave, and make the process for requesting flexible working well-known and transparent