Maternity Leave Kingston

The Equal Opportunities Commission claims 440,000 women per year face discrimination at work while pregnant or on maternity leave. Iain Patterson, from law firm Browne Jacobson, looks beyond the furore with a practical guide to managing maternity.

Maternity: A big issue for small businesses

The law is clear on maternity in one respect: discrimination against staff who are pregnant or on maternity leave is illegal and unethical. However, maternity is a complex employment conundrum, which can at times pose genuine resourcing issues, especially for smaller organisations.

The fact is that few disputes over maternity conditions are caused by old-fashioned chauvinism or a cold desire to cut costs. It is worth noting that many companies go the extra mile for staff with new babies, offering lengthy leave periods and maternity pay above the statutory minimum in order to attract the best staff. Failures to understand the subtleties of discrimination law, and breakdowns in communication between companies and employees are much more common causes of disagreement.

So what are employees' rights while on maternity leave? What are the obligations facing organisations? And what are the basic dos and donts which can help prevent a dispute?

Maternity: The ground rules

• 1. Discrimination and Unfair Dismissal: quite simply. a company must not act to dismiss or disadvantage an employee because she is pregnant or away on maternity leave.
• 2. Compensation: employers should be aware there is no limit to the compensation which may be awarded for unfair dismissal in such a case: staff may potentially claim for loss of earnings and pension over a long term.
• 3. Dismissal: staff can be dismissed while pregnant or on maternity leave for performance issues, if these are genuine and unrelated to the pregnancy. If genuine, employers would be expected to have begun any disciplinary procedure before maternity leave commences if at all possible.
• 4. Redundancy: staff on maternity leave can be made redundant for reasons unrelated to the pregnancy.
• 5. Superior right of deployment: if a role is to be made redundant and the staff member is on maternity leave, she must be offered any suitable, available vacancy on terms not substantially less favourable. The law here places her at an advantage over employees not on maternity leave.
• 6. Bonuses: must be paid where a staff member away on maternity leave has met performance targets, or where it relates to work undertaken in part before leave began. These may be payable pro-rata to take absence into account, depending on how bonuses are structured.

The indirect maternity trap

As we noted earlier, many companies have an appropriately benign approach when it comes to maternity. However, organisations should beware of innocently implemented, practical policies, which suit them operationally, but may inadvertently discriminate against certain groups of employees.

For example, a Brit...