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Ask the Expert: Can I change the job offer for a pregnant candidate?

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The question

We recently offered a full-time role to an applicant who has now indicated that she may be pregnant. She is considering not joining us because of this.
 
We have no problem with her pregnancy, but the role offered could be strenuous in the later months of pregnancy. We want to consider other options rather than lose a good applicant.
 
One option is to offer a six-month fixed-term contract in this or an alternative role. Would we be discriminating against her because of her pregnancy if we offered different terms now? Also, would she have the right to return to work?
 
 
The legal verdict
 
Esther Smith, a partner at Thomas Eggar
 
Pregnancy and maternity are protected characteristics covered by the Equality Act 2010. S18 makes it an offence to treat a job applicant unfavourably because of her pregnancy. Changing the terms of a job offer because an applicant is pregnant would, therefore, amount to discrimination.
 
If you think that the applicant intends to refuse your offer or resign because of her pregnancy, you could offer her a six month fixed-term contract as an alternative. But it should always be stressed that she can still accept the original offer and that the subsequent offer is only being made to address her concerns in order to encourage her to work for you.
 
You should adopt a cautious approach to this option to ensure that the applicant does not feel in any way pressured to accept the new offer. Where possible, it is preferable to wait for her to decide whether or not she will accept the position before making a revised offer. 
 
The right to return to work varies depending on whether the employee is returning from six months’ ordinary maternity leave (where she has the right to return to her previous job) or an additional six months’ maternity leave (where she has a right to return to work on terms and conditions no less favourable).
 
In this instance, if the requirement for the role ended at the same time as the fixed-term contract, you need to consider a redundancy situation and think about offering her alternative positions. 
 
Regarding your concerns about the role being too strenuous in the later months of pregnancy, you are under a duty to protect the health and safety of your employees, which includes special considerations for expectant mothers in the workplace.
 
You will need to carry out a risk assessment, alter the employee’s working conditions or hours if necessary, offer her suitable alternative work if the existing role cannot be changed or suspend her on full pay where suitable alternative employment is not available or she reasonably refuses it. The situation would be the same whether the applicant was on a fixed-term or permanent contract.
 
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
 
 
Adam Partington, a solicitor at Speechly Bircham
 
The headline point to make is that employers must not discriminate against job applicants (or employees, among others) by treating them unfavourably because of pregnancy. Whether this has happened is, of course, fact-specific. 
 
Changing the terms of an existing offer (or indeed withdrawing an offer) may well constitute discrimination so you need to be careful about how you deal with the situation.
 
You indicated that the applicant has told you that she is considering not joining the company because she may be pregnant. But it is not clear why this is so and whether she shares your concerns. She could have different reasons. If you do not already know, you could politely find out from her why she is considering not joining you.
 
But you must approach the situation with care. It is a sensitive issue and how you handle it and what you say to her will be key. Understanding the nature of the role and your concerns would be crucial to providing additional advice. This means that the guidance we can give you is limited and you should seek further legal support.
 
If offering the candidate a fixed-term contract, you would need to be careful, however, as there is a good chance that she would interpret the move as unfavourable treatment. There is also definitely a risk that this could constitute discrimination. As a result, it would be sensible to take more detailed advice before going down this route.
 
If it turns out that the applicant is pregnant (your commentary suggests that this is not definitely the case), then you are under a duty to assess workplace risks and alter working conditions or hours to avoid any significant risk to her health and safety as a new or expectant mother. In some instances, workers may need to be suspended on health and safety grounds (you would usually take medical advice to this effect).
 
If the applicant decides that she does want to accept your current job offer, one approach could be to undertake a risk assessment as a means of identifying any issues in order to deal with them accordingly.
 
But the employee herself is also free to raise any concerns that she has. At this point, it may be possible to start a dialogue about ways to mitigate any problems identified in the risk assessment or by her. Trying to pre-empt the situation could land you in difficulties, despite your best intentions, however.
 
After taking maternity leave, women do have the right to return to the job that they had previously. There are some circumstances under which this may not be possible, for example, if the role is redundant – although even then special rules apply, for example, the individual concerned has to be offered suitable alternative employment.
 
Adam Partington is a solicitor at Speechly Bircham LLP.

 

 
 
 
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