ATL

Motherhood matters

There is a myriad of workplace rights and regulations surrounding being pregnant and having a baby. ATL solicitor Sharon Liburd guides you through them

Around 350,000 women work well into their pregnancy each year. Yet, despite family-friendly rights in many workplaces, the Equalities Review of 2007 found that mothers face more discrimination at work than any other group. This is often caused by employers' lack of understanding of maternity rights, which include paid time off work for antenatal care, and protection from certain risks at work as soon as the employer is informed of the pregnancy, regardless of length of service.

The employer is entitled to request evidence of antenatal appointments. It would not be reasonable to pressure a woman to make up the time by working additional hours. While a woman is not obliged to disclose her pregnancy to the employer in the first three months, it is in her interests to do so if the job involves moving equipment, working with potentially violent people or with chemical or other hazardous substances.

The Management of Health and Safety at Work Regulations 1999 oblige employers to carry out an assessment of work to highlight and eliminate risks to the health and safety of an expectant or new mother and her baby caused by the working environment or the requirements of the job. This applies to women who are pregnant, have given birth within the previous six months or are breastfeeding. The assessments should include rest/water facilities, workload, rest breaks, risk of infections and chemical hazards. They should be reviewed during the different stages of the pregnancy.

The Health and Safety Executive provides a flow chart of the assessment process on their website.

Right not to suffer detriment: An employee has the right not to be subjected to adverse treatment by her employer because she is pregnant or she wants to take parental leave. Failure to allow paid time off for antenatal care or to carry out a risk assessment constitutes a detriment. These failures can also entitle the employee to consider herself as constructively dismissed.

Constructive dismissal: This arises where, as a consequence of a breach of contract by the employer, the employee resigns with or without notice, and at the date of termination of employment she has worked for the employer for at least one year.

A contract of employment implies the employer will not behave in a manner that destroys or seriously damages the relationship of trust with an employee. Women subjected to maternity-related unfair treatment can rely on a breach of this. However, as constructive dismissal claims are notoriously difficult, ATL members are strongly advised not to resign before seeking our advice.

Automatic unfair dismissal: An employee will automatically be held to be unfairly dismissed if the main reason for dismissal is connected with pregnancy, childbirth or maternity leave. This is regardless of length of service. In one case, on her first day at work, an employee told her new employer she was pregnant. She was told that there would be a place for her after she had her baby but she had to leave that day. A tribunal ruled that she had been unfairly dismissed.

Redundancy: The law gives special protection to an employee whose job becomes redundant while she is on maternity leave. If a suitable, alternative vacancy is available, the employer must offer it to her in preference to any other employee at risk of redundancy. Failure to do so will render a subsequent dismissal on the grounds of redundancy to be automatically unfair. Where the selection for redundancy is based on pregnancy or maternity leave, the dismissal will also be automatically unfair - it may also amount to sex discrimination.

Sex discrimination: The law relating to sex discrimination covers less favourable treatment, such as failure to offer employment, training or opportunities for promotion. Protection is also given to those who are treated less favourably because of pregnancy-related illness. For example, a woman dismissed because of the amount of time she was on pregnancy-related sick leave, succeeded in her claim for sex discrimination. However, if a woman becomes ill with a pregnancy-related illness, such as postnatal depression, after maternity leave, this will be treated in the same way as any other illness.

After maternity leave, a woman has the right to return to the same job. ATL receives many calls from members on full-time contracts who wish to resume work part time. The rejection of such a request can amount to indirect sex discrimination, which occurs when employers treat all employees the same way, but there is a disparity in the impact of that treatment. It is generally accepted by courts that women have greater childcare responsibilities.

Seeking redress in tribunal proceedings is subject to strict time limits. In general, claims must be lodged within three months of the date on which the act occurred. ATL members should contact their regional officials or branch secretaries as soon as possible if they require assistance.

For more information, visit our help and advice section.