Eilidh Wiseman. partner in employment at UK law firm Dundas & Wilson

Nicola Brewer, Chief Executive of the Equality and Human Rights Commission recently questioned whether extending maternity leave could hamper women’s careers, if this meant employers became wary of employing women of child bearing age. In her view, if the right to take time off was placed on a more equal footing between the sexes, this would remove the perception that childcare responsibilities are a women’s issue. So what legal protections exist for new and expecting mothers who encounter an unscrupulous employer?

Returning to work:  flexible work arrangements

Mothers returning to work after maternity leave have a statutory right to request flexible working arrangements. This can include changing their hours, time or place of work. A request does not need to be made straight away and, provided the mother has 26 weeks’ continuous service and has not made another flexible working request in the last 12 months, she can request flexible working arrangements until her child is six years old (or 18 years old if the child is disabled). 

Statutory procedues

Whilst there are prescriptive statutory procedures for making and considering a request, there is no entitlement under the legislation for the request to be granted. If an employer fails to follow the statutory procedure for considering a request, the maximum penalty is only £2,640.
Of far greater importance in this area is the concept of indirect sex discrimination and the use of this remedy by women who are refused part-time work.

If a manager refuses a request to work flexibly a mother may, in certain circumstances, be able to challenge the refusal by bringing a claim for indirect sex discrimination. To establish indirect discrimination, the mother would need to show that the employer’s policy, for example of only having full time managers, indirectly discriminated against women. 

Indirect discrimination

Indirect discrimination occurs where a policy, provision or practice is applied equally to men and women, but puts women at a greater disadvantage than men, provided this cannot be justified. Employment Tribunals have accepted that women are more likely to be responsible for childcare. Therefore, it is likely that a practice of only having full-time managers will put women at a greater disadvantage, as they more likely to have childcare responsibilities. To avoid a finding of indirect sex discrimination, an employer would need to objectively justify the requirement that a role needs to be worked on a full time basis. Awards for indirect sex discrimination are uncapped, so this is potentially a more valuable remedy in these circumstances.

Redundancy before, during or after maternity leave

New and expecting mothers have enhanced protections against dismissal and any dismissal related to pregnancy, taking maternity leave or requesting to work flexibly will be automatically unfair. In addition, mothers may also have sex discrimination claims if they are treated less favourably because of their pregnancy or maternity.

Therefore, an employee threatened with redundancy after announcing her pregnancy will be protected against any dismissal which is on the grounds of pregnancy. This does not create a blanket ban against making a pregnant employee redundant: where there is a genuine redundancy situation, dismissal can be justified. 

Employment Tribunals are however adept at uncovering the “real” reason behind dismissals and expecting mothers who sense their pregnancy is the real reason they are selected for redundancy should keep clear records of communications, emails and other actions that support their claims.

The same applies to mothers who are selected for redundancy several months after returning from maternity leave. Expecting and new mothers may also be able to claim indirect sex discrimination if the selection criteria for redundancy is more likely to favour male employees (who are less likely to have child care responsibilities). For example, a requirement that employees must work full time would be more likely to favour male employees who are less likely to work part time.  

Part-time roles

If a new mother is granted part-time work there is an expectation that the role will shrink to reflect the reduced working hours. The terms of any arrangement will be a matter of negotiation between the employee and employer. However, if in reality the employee is expected to fit a five day week into three or four days and starts suffering from stress and work overload as a result, there are protections in place. 

Employers have a statutory duty to ensure the health, safety and welfare of employees and to take reasonable steps to resolve problems related to stress. In the first instance, we recommend that any concerns are raised with relevant managers. Where reasonable concerns are brought to their attention, employers need to act. Breach of the duty to take reasonable care for the health and safety of employees in the workplace could give rise to a personal injury claim.