Maternity matters

The Equal Opportunities Commission claims 440,000 women per year face discrimination at work while pregnant or on maternity leave. Iain Patterson, from law firm Browne Jacobson, looks beyond the furore with a practical guide to managing maternity.

Maternity: A big issue for small businesses

The law is clear on maternity in one respect: discrimination against staff who are pregnant or on maternity leave is illegal and unethical. However, maternity is a complex employment conundrum, which can at times pose genuine resourcing issues, especially for smaller organisations.

The fact is that few disputes over maternity conditions are caused by old-fashioned chauvinism or a cold desire to cut costs. It is worth noting that many companies go the extra mile for staff with new babies, offering lengthy leave periods and maternity pay above the statutory minimum in order to attract the best staff. Failures to understand the subtleties of discrimination law, and breakdowns in communication between companies and employees are much more common causes of disagreement.

So what are employees' rights while on maternity leave? What are the obligations facing organisations? And what are the basic dos and donts which can help prevent a dispute?

Maternity: The ground rules

1. Discrimination and Unfair Dismissal: quite simply. a company must not act to dismiss or disadvantage an employee because she is pregnant or away on maternity leave.
2. Compensation: employers should be aware there is no limit to the compensation which may be awarded for unfair dismissal in such a case: staff may potentially claim for loss of earnings and pension over a long term.
3. Dismissal: staff can be dismissed while pregnant or on maternity leave for performance issues, if these are genuine and unrelated to the pregnancy. If genuine, employers would be expected to have begun any disciplinary procedure before maternity leave commences if at all possible.
4. Redundancy: staff on maternity leave can be made redundant for reasons unrelated to the pregnancy.
5. Superior right of deployment: if a role is to be made redundant and the staff member is on maternity leave, she must be offered any suitable, available vacancy on terms not substantially less favourable. The law here places her at an advantage over employees not on maternity leave.
6. Bonuses: must be paid where a staff member away on maternity leave has met performance targets, or where it relates to work undertaken in part before leave began. These may be payable pro-rata to take absence into account, depending on how bonuses are structured.

The indirect maternity trap

As we noted earlier, many companies have an appropriately benign approach when it comes to maternity. However, organisations should beware of innocently implemented, practical policies, which suit them operationally, but may inadvertently discriminate against certain groups of employees.

For example, a British Airways rule that pilots should have at least 2,000 flying hours before reducing their working time by half, seemed reasonable to the airline on safety grounds. However, it was ruled discriminatory by an Employment Tribunal when challenged by a pilot returning from maternity leave.

In the same way, a policy of only employing full time staff may discriminate against parents with childcare commitments who need to work part time or flexibly; or a rule preventing couples from working together may unlawfully favour unmarried partners while discriminating against married people. If such a practice is to the detriment of a substantially larger proportion of women than men (or vice versa), or more married than single people, it will amount to discrimination unless the employer can provide justification.

Employers need to carry out a proper objective analysis of the need for the policy in question, which must be found to be reasonably necessary. Any justification will be carefully scrutinised if the case reaches the Employment Tribunal.

Flexible returns

Another obligation to employers concerns flexible working. Staff returning from maternity leave have the right to request to work part time or flexibly. Flexible working may mean in terms of time or even location.

Employers need to be able to give due consideration as to whether they can accommodate this. Relying upon prejudices and assumptions that part time or flexible working cannot work will land companies on the wrong side of the law.

How to manage maternity

Finally, a few key hints for employers on managing maternity successfully on an ongoing basis, and reducing the likelihood of a dispute occurring or winding up in front of an Employment Tribunal:

1. Be sensitive in your dealings with staff: remember, your employee has just been through a very personal experience. Avoid pressurising staff, or being seen to do so. Do not make the mistake of one company who enclosed an employee's P45 in her 'Congratulations' card, or another who proposed a change in role to a pregnant employee and gave her half a day to decide.

2. Don't be a stranger: disputes can be avoided if companies keep staff updated on changes while they are away, and staff keep employers abreast of their intentions with regards to returning to work. Call and email periodically to see how she's doing and make sure she's invited to staff socials while away. Keep talking throughout the maternity period. Here at Browne Jacobson we discuss with employees prior to leave what contact they would like to have. This can range from invites to social events to a buddy system, or use of a Blackberry to keep in contact while they are away.

3. Prepare for her return: consider ways to implement flexible working for returning mothers, and other ways to accommodate what may be a new set of requirements and priorities.

4. Be sure of your ground: if staff who are pregnant or on maternity leave are to be dismissed or made redundant, ensure there are genuine reasons which can be objectively demonstrated should they ever be presented to an Employment Tribunal.

5. Follow procedure: make sure all due process is carried out regarding redundancy or dismissal.

In summary, maternity need not be a stress for the employee or a logistical headache for organisations. With a small amount of planning and a sensitive approach, it can be managed to the benefit all concerned.