Employment Law is a HUGE area. I mean, after all, I never struggle for a blog-related topic due to Employment Law covering everything from unpaid ‘discretionary’ bonuses, unfair dismissal, unreasonable denial of job vacancy due to disability, discrimination due to being a part-time worker, breach of contract due to pension-related ageism and, of course, discrimination (of various forms) against pregnant individuals.
I could have entered at least two dozen more examples within the above sentence but that would have bored the back teeth off readers and, after all, too many examples make Tom a dull fellow.
In recent weeks, my contact with clients, both employees and employers alike, have involved many conversations concerning pregnant staff members. Basically, once an individual informs their employer that they are pregnant, numerous additional responsibilities, both from an Employment Law and Health & Safety perspective, come into play. Naturally, this blog doesn’t cover all of them (as that isn’t really possible without turning this blog into something more of a chapter within a legal textbook) but, rather, let’s look at a relevant example.
So, our employee is called ‘Wilma’ (I’m a closet Flintstones fan…) Wilma has worked for her employer, Bitsy Boo Limited (“BB Limited”), for 18 months and has recently informed them that she is pregnant with her first child. BB Limited is a small nursery that looks after babies and small children.
Upon being informed of Wilma’s pregnancy, Wilma’s Manager panicked at the thought of having to carry out a risk assessment and fear of Wilma having to have more days off work than usual due to morning sickness and other potential pregnancy-related issues. Her Manager also feared that some adjustments would need to be made to ensure a reduced risk to Wilma’s health and to safeguard her pregnancy and, therefore, due to having a common (erroneous) belief that employees need 2 years’ full service to bring a Tribunal claim, the Manager terminated her employment soon afterwards without good reason.
Importantly, the Manager’s belief in the ‘2 year rule’ was erroneous. This only timeframe only applies to ordinary Unfair Dismissal (for which there are some exceptions) but doesn’t apply to pregnancy-related discrimination actions covering events including, but not limited to, termination of employment. Naturally, the absence of a good reason for dismissal provides an implication that it was due to pregnancy (unless BB Limited can evidence an alternative, fair reason to an Employment Tribunal).
There is a common belief amongst the majority of the media and the general public that pregnancy-related discrimination in the workplace is largely a thing of the past but, in fact, multiple published surveys show that large numbers of staff feel that they are put at a disadvantage at work due to pregnancy and/or Maternity Leave.
In terms of discrimination claims, which let’s not forgot includes discrimination on grounds of gender, disability, gender reassignment, marriage and civil partnership, race, religion, age, sexual orientation and pregnancy and maternity, the most common by far at the moment are pregnancy (and maternity) and disability.
There are a large number of ways in which an employee can put a pregnant employee at a disadvantage, which include taking disciplinary action due to pregnancy-related illness, not arranging for reduced (or no) heavy lifting (if such lifting is a risk to the pregnancy which, naturally, it often would be) or, within a job involving dangerous chemicals, amending the individual’s role so they don’t come into contact with them during pregnancy. In fact, if a workplace contains anything that could put a pregnancy at risk and the employee reasonably informs the employer of this and the employer responds by terminating employment, this would be a fairly clear Unfair Dismissal and/or pregnancy discrimination action.
Overall, the law intends to ensure that pregnant women are treated in the same way as other staff and, in circumstances which only affect pregnant women (i.e. morning sickness or the need to avoid certain materials or duties), to be treated in a way that safeguards pregnancy to a reasonable degree.
Unfortunately, the ‘example’ of Wilma above was a real life case I dealt with in past years (albeit the actual individual unsurprisingly had a less Flintstones-eske name). The result? A heavy settlement in favour of the pregnant employee because, let’s face it, the reputational impact to the employer within local media was just as big a deterrent as the potential Tribunal compensation award itself…
A sadder blog than usual, perhaps, but one that demonstrates the need for employers to meet their legal obligations for pregnant staff members. As the popular saying goes, a baby crying is code for “I may be small but I’m the boss…”