Camilla Palmer Injury in Childbirth: Employment Implications RESOLVING WORKPLACE DISPUTES WITHOUT LITIGATION Injury in Childbirth: Employment Implications Camilla Palmer cpalmer@yesslaw.org.uk 020 3701 7531 YOUR EMPLOYMENT SETTLEMENT SERVICE (YESS), SOUTH WING, SOMERSET HOUSE, STRAND, LONDON, WC2R 1LA

Childbirth Injuries: The Context 1 in 9 new mothers lose their job for pregnancy/maternity reasons This discrimination has increased over 10 years Mothers with anal sphincter injury may experience double discrimination: maternity and disability Communication during leave is key to continued employment, but it is often poor in practice Flexible hours are harder to negotiate when on leave

The Law: Disability Discrimination The Equality Act protects disabled job applicants and employees Definition of being disabled is where employee has a : Physical or mental impairment which has a substantial and long- term negative effect on daily activities Most employees with sphincter injuries will be disabled, but Medical advice might be needed if disability is denied by employer

Disability Discrimination : 3 main types Direct discrimination and Discrimination arising from disability: Less favourable treatment of a disabled employee compared to a non- disabled employee (or employee without that disability) because of the disability. EG: employee with childbirth injury is dismissed because she is off sick for 2 months but non-disabled employee off for 2 months is not dismissed Unfavourable treatment, arising from the disability, which the employer cannot justify. EG: disabled employee is dismissed because of disability related sickness absence of 2 months.

Duty to make reasonable adjustments for disabled employees An employer has a duty to make reasonable adjustments The aim of the adjustment is To remove or reduce the disadvantage suffered by the disabled employee and To enable the employee to remain employed The employer must be aware that the employee is disabled and of the disadvantage suffered as a result This may require the employer to treat a disabled person more favourably in order to remove the disadvantage The adjustments must be reasonable

Reasonableness of adjustments If the adjustment would be effective in preventing the disadvantage How practicable it is Financial and other costs Extent of any disruption caused The employer’s financial or other resources Availability of financial or other assistance eg through Access to Work The type and size of the employer

Examples of Reasonable Adjustments Flexible working, which may include Working from home Adjusting or reducing hours of work Flexible working to attend medical appointments Allowing a period of disability leave Seating adjustments to be near a toilet Adapting a toilet to enable private washing facility

Reasonable Adjustments cont’ Reduced travel A car parking space – if feasible Reallocating duties to enable the employee to adjust hours Redeployment to a job compatible with employee’s needs Reassignment to a different work place Ignoring disability related sickness in a redundancy exercise

Practical Problems and Steps If possible start the discussion during maternity leave to enable the employer to put in place adjustments Early communication & discussion – with a ‘can-do’ approach Consider how long adjustments will be needed If in doubt, try a trial period Avoid the law; it not help with practical solutions only where things have gone wrong Remember Access to work can help with some adjustments

The Role of Medical Professionals Some employers will not accept the employee is disabled or the need for adjustments or just ignore the problems Medical advice can be key in terms of Whether the employee has a disability under the Equality Act Type of adjustments needed to reduce the impact of the disability Prognosis: Significant adjustments may be easier if short term For accessible information about the law and practice see Equality and Human Rights Commission Code of Practice

Conclusion Losing your job after having a baby is devastating with financial & emotional consequences. It can lead to stress related problems and depression There may be situations where there are no solutions, particularly in small organisations, but think outside the box about what may work. Women need all the support they can get to keep their job – their confidence, their health and financial security Key to this is communication and co-operation between employer and employee to find a solution – very much in the shadow of the law, avoiding legal threats

The End It’s about getting to ‘YES’ with constructive dialogue It’s less about the law And it does work Thank you