Whilst the law very clearly and unequivocally protects women who are pregnant or on maternity leave from discrimination, it doesn’t appear to deter many employers/potential employers/recruiters from discriminating in any event. For this reason, most pregnant women feel anxious about disclosing their pregnancies, particularly when applying for employment or when they know that redundancies are in the offing or they are being considered for promotion. Their fears are well founded. Research by the Equality and Human Rights Commission found:
- Around one in nine mothers (11%) reported that they were either dismissed; made compulsorily redundant, where others in their workplace were not; or treated so poorly they felt they had to leave their job; if scaled up to the general population this could mean as many as 54,000 mothers a year.
- One in five mothers said they had experienced harassment or negative comments related to pregnancy or flexible working from their employer and /or colleagues; if scaled up to the general population this could mean as many as 100,000 mothers a year.
- 10% of mothers said their employer discouraged them from attending antenatal appointments; if scaled up to the general population this could mean up to 53,000 mothers a year.
Certainly at Lionshead Law we have a steady stream of women seeking advice following discriminatory conduct or dismissal during pregnancy or maternity leave.
So what are your rights and what should you do if you think that your employer/prospective employer/recruiter may not view your exciting news with the same enthusiasm as you did?
Applying for a job when pregnant/on maternity leave
If you know that you are a strong candidate with all or most of the skills/experience being sought, it can actually be to your advantage to disclose your pregnancy/maternity leave at an early stage. This is the case for two reasons:
- If you are applying to work for an understanding and supportive employer, this will not alter the outcome of the process and you’ll very likely get the job. Furthermore, the honesty you have shown will make both you and your future employer feel more positive about the impending working relationship.
- If the employer is one where a pregnancy is seen as a stumbling block to appointment, even though you may have performed well and demonstrated that you fulfill the selection criteria and job specification, you probably won’t get the job. This means that firstly, you will be saved the unpleasantness and unhappiness of working for a an employer who is unlikely to be supportive of any future flexible working requests you may wish to make and secondly, having disclosed your pregnancy, you will, if you wish, be able to make a claim of maternity discrimination. This may involve a tribunal claim but not necessarily. An employment solicitor will be able to present the claims in a letter before action and this could enable you to obtain a settlement without having to go through the cost, stress and uncertainty of a tribunal claim. This may be a necessity financially if you are unable to gain employment because of your pregnancy.
Finding out you’re pregnant when you know that redundancies are imminent
As above, it can work in your favour to disclose your pregnancy early as this ensures that you have to be considered above anyone else for suitable alternative employment in the event that you are selected for redundancy. It does not, however, mean that you are exempt from a redundancy selection process. However, as a pregnant woman, you can try to ensure, that any selection criteria do not indirectly discriminate against you. For example, if attendance record is one of the criteria being employed by your employer and you’ve missed a lot of work recently due to morning sickness, you should be able to ensure, during the consultation period, that maternity related absence be excluded from the scoring.
If you are ultimately selected for redundancy but there is a suitable alternative job you could do which is being performed by someone else in the company who has not been selected for redundancy, your employer should consider “bumping” that employee out of the job and giving it to you as part of the consultation exercise. It is not sufficient to say that the only suitable alternative job is already being fulfilled by someone else, particularly if that someone else has been at the company significantly less time than you and isn’t pregnant. Suitable alternative employment MUST be considered for all potentially redundant employees and you, as a pregnant woman, have to be selected for that alternative employment first.
Being given the nod about a possible promotion when you’re pregnant but haven’t yet announced it
If you are with a supportive employer (and hopefully by now, you will know this), then it can be a good idea to disclose your pregnancy straight away for the reasons outlined in the section relating to applying for jobs above. Disclosing the pregnancy puts you in a strong position in terms of pursuing claims in the future should the promotion mysteriously disappear once you’ve made your announcement. However, it also builds trust with your employer who will respect you more for disclosing this information in advance. Furthermore, it will strengthen your relationship with your employer even further if, at the time you make the announcement, you are also able to give them an idea of how you would envisage the job being covered whilst you’re away and reassurance that you are very keen to take it and are planning how to make the role work notwithstanding the imminent new arrival in your family. Whilst you do not have to tell your employer how much maternity leave you are planning to take (and cannot be pressured to take less than 52 weeks), you could use this opportunity to discuss possible use of “Keeping in Touch Days” or even the taking of shared parental leave with your partner. Letting your employer know that you are considering these things will reassure them of your commitment to the company and to your career progression.
Remember, being #PregnantAtWork can, and should, be a positive for both you and your employer if handled right by both.