Maternity discrimination has always been a hot topic. However, in the last few weeks, it’s been headline news.

We’ve seen everything from divisive comments made by politicians, like Kemi Badenoch who claimed maternity pay had “gone too far”, but since stated her point had been ‘misinterpreted’; to charities including Pregnant Then Screwed campaigning for fairer treatment in the workplace. This has caused more employees than ever to be aware of their rights, leading to more queries from staff and more tribunal claims. 

A recent maternity discrimination case involving a total £350,000 award has highlighted again just how important it is for businesses to get things right.

If a risk is identified, it’s important to decide if it can be controlled.

Maternity policy front and fore

Employers must do more than just have a maternity policy that is hidden in the back of a filing cabinet. Businesses must be familiar with their obligations and have a maternity policy in place that is lived, known and followed.

Providing regular training, particularly to managers, will help ensure they feel prepared for the situation when it arises. As well as the procedures involved, employees need to be aware that any email or instant message may be seen by a tribunal in future, and so how the pregnancy or maternity leave is discussed should be appropriate, professional and sensitive.

All maternity policies need to be accessible, up to date and followed by the whole organisation. A proactive and prompt process that is triggered from the moment an employee discloses their pregnancy, right through to their return from maternity leave and onwards, is also key to compliance.

Follow detailed procedures

The procedures that need to be followed are in-depth and ongoing throughout the pregnancy, maternity leave and after the employee’s return.

Understandably, most managers and HR staff won’t be able to remember everything, so making information easily and clearly accessible is key to ensuring the correct procedures are followed at the right time. Ideally, this means that all policies are up-to-date and uploaded to a workplace intranet or internal drive that is easily accessible for both managers and employees.

All employers are required to assess the risks to employees of childbearing age as part of their general workplace risk assessment.

However, an individual risk assessment must be carried out once an employer is informed of a pregnancy. This will involve reviewing the existing risk management and controls and discussing these with the employee to see if there are any conditions or circumstances of their pregnancy which could affect their work.

Risk assessment

Ensure the conversation is open and discuss any concerns they have about how their work could affect their pregnancy and take into account any medical recommendations. Once the specific risk assessment is completed, record the findings and share these with the member of staff both verbally and in writing.

If a risk is identified, it’s important to decide if it can be controlled. Common adjustments include avoiding sitting or standing for long periods, not carrying or lifting heavy loads, and assessing working alone or night work, for example.

Managers might feel unprepared for these conversations, so it’s vital they are given the tools to navigate it appropriately.

If it cannot controlled or removed then working conditions or hours should be adjusted to avoid the risk. If that’s not possible, the employer should provide the employee with suitable alternative work on the same terms and conditions including pay.

Suspending them on full pay for as long as needed to protect their health and safety and that of their child can be used if their job is deemed as having too many risks for them to carry it out safely.

Good practice

The risk assessment isn’t an employer’s only responsibility. Regular, two-way communication is vital to ensure that pregnant employees are properly supported. Building this into routine catch-ups is the easiest way of making sure it remains prioritised, whether the conversation occurs in weekly progress meetings or monthly one-to-ones.

Where these touchpoints aren’t already in place it’s important to make sure they are diarised early on in the process.

Once a worker notifies the business of the date that they wish to start their maternity leave, the employer has 28 days to notify them of the date their maternity leave will end.

It’s good practice to deal with this early on and write to the employee once they disclose their pregnancy and outline the matters to be discussed – risk assessment, maternity leave dates, holiday entitlement and accrual, and antenatal appointments.

Communication is key

Regular communication should continue into the employee’s maternity leave. Businesses should discuss and agree with the employee in advance how regularly and by what method they’ll keep in contact. The Keeping In Touch (KIT) days can also be helpful as they provide a mechanism for the employee to work and receive pay without ending their maternity leave.

Managers and HR staff should be given training in professional communication. In the recent decision of Hinds v Mitie Limited where Nicola Hinds was awarded £350,000 compensation overall, £20,000 of this was compensation for injury to feelings, which is compensation for the discrimination she suffered.

This is because one of her line managers sent an email that the tribunal found to be “stereotyping” and “dismissive and belittling” when he described her as “very emotional and tearful”.

Using real tribunal cases in staff training can be particularly helpful to illustrate how detrimental dismissive or unsupportive language can be and how it can impact the level of compensation awarded. Managers might feel unprepared for these conversations, so it’s vital they are given the tools to navigate it appropriately.

Support your employees

Making employees feel supported through their pregnancy and maternity leave is hugely beneficial for businesses.

Not only does it fulfil their required obligations and duty of care, but it maintains a positive relationship with employees and plays a huge role in retaining talent and boosting employee relations at a business.

With the increased focus on maternity discrimination, businesses that aren’t ready and don’t proactively have appropriate systems in place may find themselves hitting the headlines and paying substantial compensation in future.