6 July 2016
Recent reports confirm that pregnancy / maternity discrimination is more prevalent than ever. However, in the same vein, it has been reported that employers are keen to do right by pregnant staff and support them as much as possible throughout their pregnancy, maternity leave, and on their return.
The law in this area is complex and it is therefore unsurprising that many employers “get it wrong”, even with the best intentions at heart. With this in mind, here are some common mistakes that employers make, and tips on how to avoid them:
1. Communication during maternity leave
Most employers assume that an employee will not want to hear from them until they are ready to return after their maternity leave ends and they also genuinely do not want to be a burden and pester employees on maternity leave. However, very often women are eager to be “kept in the loop” while they are away from work.
The easiest way to resolve any misunderstanding as far as the amount of contact is concerned is to have a chat with your employee before their maternity leave starts. Gauge how much contact she would like and the best method of getting in touch with them during their leave. Regardless of her answer, she should be informed of vacancies and promotion opportunities which rise during her maternity leave and should also be sent information about social events, training courses and receive any newsletters of bulletins which are sent to other members of staff so she doesn’t miss out or feel isolated on her return.
An employee on maternity leave may carry out up to 10 “Keeping in Touch” or “KIT” days for you without bringing their maternity leave or pay to an end. It is very important to note though, that participation in these days are completely voluntary. You cannot require an employee to work a KIT day, nor does she have the right to work without your agreement. They are often a valuable tool as you can plan them so they coincide with days on which team meetings or training sessions are being held.
2. Consulting about redundancies
If a redundancy situation arises whilst an employee is on maternity leave, she should be informed and consulted in relation to the same as far as practically possible and to the same extent as any other affected employees who are in work. Some employers think they are doing right in “not bothering” an employee on maternity leave but excluding her from the process, by failing to include her in meetings, provide her with information made available to others could amount to discriminatory treatment.
3. Failing to offer alternative employment in a redundancy situation
It is possible to make a woman on maternity leave redundant fairly, in the right circumstances and where suitable alternative employment is not available. However, many employers do not know that they are required to offer any suitable alternative employment to a women on maternity leave, in priority over other affected employees (where this is available).
Whilst many employers are extremely careful to include women on maternity leave in a redundancy exercise affecting their positon and ensure she is fully up to speed with what is happening, this is unfortunately a regular pitfall.
4. Not allowing carry over of accrued holiday entitlement
Women continue to accrue holiday entitlement while absent on maternity leave. In many cases, especially where women opt to take their full 52 week leave entitlement, a woman’s absence may straddle more than one leave year.
Many employers have policies which state that employees may not carry over accrued but untaken holiday from one leave year to the next. However, in not allowing a woman on maternity leave to do so could amount to discrimination. It works in the same way to that of an employee who is off sick – they are unable to take leave because they are sick or on maternity leave – therefore any statutory and contractual holidays should be carried over, where need be.
In practice, most employers ask that women take all their accrued holiday for the current leave year that they go on maternity leave prior to their maternity leave starting and then any accrued leave from subsequent year is taken prior to their return.
5. Returning to the same role
If an employee has taken up to 26 weeks’ leave and no more (classed as Ordinary Maternity Leave), she has the right to return to the same job as before. If an employee has taken up to 26 weeks’ maternity leave she has the right to return to the same job, unless it is not reasonably practicable for her to do so.
Furthermore, employers sometimes find that the person they employed or took on to cover the employee’s maternity absence is doing such a good job they would prefer to keep them on rather than have the employee return. However, if an employee was dismissed in order to make way for another employee their dismissal would be automatically unfair.
It is very important that an employee is kept informed of any proposed changes to her role whilst she is on maternity leave, such as a change in line management, or role or responsibilities, as a result of a company restructure or if a redundancy situation arises (as discussed above).
Danielle Ayres is an award winning employment solicitor who has carved out a niche for herself as one of the go-to solicitors in the UK for maternity and pregnancy discrimination cases.
Danielle runs a free law employment clinic called Keeping Mum. The Keeping Mum campaign aims to ensure that both employees and employers understand their legal rights and responsibilities surrounding maternity leave and pregnancy in the workplace. Find out more about the Keeping Mum campaign here.