The Equality and Human Rights Commission (EHRC) recently released a report estimating that 54,000 new mothers lose their jobs every year in Britain. At the same time, Citizens Advice recorded a 60% increase in calls seeking advice on maternity leave discrimination. With awards for claims being potentially uncapped, this article explores the most prevalent issues faced by maternity leavers and how employers can avoid discrimination.
Issues faced by maternity leavers
Citizens Advice report that the most common issue they advises maternity leavers on is redundancy. This is followed by changes to terms and conditions including reduction in hours and even changing roles.
The EHRC report also states that 1 in 5 new mothers receive negative comments in the workplace whilst pregnant or on return from maternity leave. Seven percent said that they were pressurised to hand in their notice.
A report by the Institute for Fiscal Studies (IFS) found that mothers who return to work are paid up to 33% less per hour. This is not necessarily the result of an immediate pay cut on the move away from full time hours. It’s more likely attributed to a lack of progression in the long run.
Retailer Sports Direct are currently facing legal action for breach of contract from maternity leavers who on their return to work were transferred to zero-hour contacts. This excluded them from the company’s bonus scheme and therefore constituted a breach of their contracts with the company.
The consequences of maternity leave discrimination
Awards for discrimination claims are uncapped. The highest sum awarded by the Employment Tribunal in 2014 – 2015 was £557,039 and was awarded in a sex discrimination claim. The average award for sex discrimination is£23,478.
Of course of perhaps greater concern is the reputational damage the organisation may suffer if it has to pay out an award, as these tend to be publicised in the media. This could also impact negatively on the Company’s ability to recruit and retain female employees.
By not fully recognising the potential of its returning maternity leavers and rewarding them accordingly, a company may risk underutilising a key resource.
So just what should an employer be doing?
The ordinary amount of maternity leave taken is six months. Mothers returning to work after this time are entitled to return to the job they occupied immediately before leave began.
This right prevails even where the employee takes up to four weeks’ ordinary parental leave immediately after ordinary maternity leave. Employers are expected to try to cover a mother’s absence, perhaps by a substitute on a fixed term contract.
Where the employee decides to take a longer period of leave, she still retains the right to return to work in her original job. However, where it is not reasonably practicable for her employee to permit this, she has the right to return to another job both suitable and appropriate in the circumstances.
If the employee’s role is made redundant during her maternity leave, she has the right to be offered suitable alternative employment. She should not have to participate in a selection exercise or competitive interview process. Effectively, maternity leave should be given priority for any suitable alternative roles.
It should be noted that employers are not required to create a new role for this individual. However if there is a suitable vacancy available, it must be offered to the maternity leaver at risk of redundancy. Where a suitable vacancy exists and the employer fails to offer it, the employee’s dismissal will be automatically unfair.
How should discretionary bonus schemes be dealt with for those on maternity leave?
If a discretionary bonus was in relation to payment for time worked over a set period, say the last year, then any bonus may be reduced pro-rata for any time spent on maternity leave during the bonus period. However, the time spent on compulsory leave will need to be included as part of this calculation.
How should we deal with requests from returning maternity leavers looking to change their hours?
All employees (not just maternity leavers) with over 26 weeks’ service have the right to make a flexible working request. This is a request to vary the hours and times worked or the place of work. For example, it could be for shorter working hours, a shorter working week, flexitime, annualised hours, job sharing, part-time work, or home working. Note that it is only a right to make a request and not an automatic right to have the request granted.
Once the individual has submitted a written request then, broadly speaking, the steps involved include: formally inviting the employee to a meeting to discuss their request (providing them the opportunity to be accompanied); and carefully discussing and considering the request and communicating the outcome. If the request is rejected then it should be for one of the permitted reasons allowed by the legislation and the employee should be allowed to appeal the decision.
It is often in the employer’s best interest to carefully consider and take steps to try and accommodate any requests. Where this is possible, the result will usually be a highly engaged and committed employee.
Hopefully this article has provided some of the key steps employers can take to avoid discrimination claims when maternity leavers are rteurning to work. If this article has raised any queries, then please do contact us.
