- Posted Monday June 10, 2019
We have had a significant number of queries to the HR Helpline regarding new employees and maternity recently. Coupled with interesting developments in case law around pregnancy in the workplace, we thought we would discuss the topic ourselves…
First thing’s first – where does the law stand on this question? There are several things that need to be taken into consideration when we address this important and difficult issue.
What does the law have to say?
It is against the law to ask in a job interview whether a woman is pregnant, has children, or plans to have children in the future. In fact, asking those questions could put you in breach of the sex discrimination laws of the Equality Act 2010.
There’s also no obligation for women to inform their employer that she is pregnant until 15 weeks before the expected week of birth. All of this means that you might occasionally find yourself with a new employee asking for a meeting to disclose that they are expecting.
The law is quite straightforward, but 59% of employers still think that women should have to disclose that they are pregnant during the recruitment process according to the Equality and Human Rights Commission (EHRC).
The risks of discrimination in the workplace
Further statistics from the EHRC show that the problems continue after recruitment, with 20% of pregnant women having to face negative comments or harassment at work – this affects an even higher rate for employees who are new to a business.
Recent case law highlights just that - in Walker vs Arco Environmental, an employee claimed constructive dismissal due to discrimination as she was treated unfairly following her disclosure that she was pregnant three weeks into her new role.
In the case, the claimant was treated unfairly by her employer by being asked whether she had known she was pregnant prior to accepting the role, as well as being made to feel uncomfortable and unwanted in the workplace.
During the hearing, the employer made the allegation that she had only started working for them to claim maternity benefits, such as pay and paid time off for appointments. This was not upheld by the judge, who was satisfied the claimant had wanted the role to further her career. The claimant won the case, including unfair dismissal and sex discrimination.
The case serves as a reminder that ensuring a fair and legal process is absolutely paramount, no matter how long an employee has worked for you.
It’s therefore important to know…
- All employees, no matter how long their length of service, are entitled to maternity leave, which consists of 26 weeks ordinary leave, and 26 weeks additional maternity leave.
- Employees have to work for 26 weeks prior to the 15th qualifying week (15 weeks before the expected week of childbirth) to qualify for Statutory Maternity Pay (SMP). SMP is the lowest amount of Maternity Pay that you can pay an employee. You may also offer Company Maternity Pay.
- If an employee is not eligible for SMP, usually due to their length of service, they might qualify for Maternity Allowance, which is a payment from the Government.
- You should ensure you complete regular Risk Assessments with your employee, ideally once every two weeks, as a minimum.
- Pregnant employees are entitled to paid time off for antenatal appointments.
Want more information? FPM members can download our new “Maternity - Managers Guide” document, released this week to the FPM Policies and Procedures Library. Alternatively, email the HR Helpline on email@example.com for 1-2-1 expert support.