1. Family Friendly Working
An Introduction to Pregnancy and Maternity Discrimination in the Workplace and Shared Parental Leave Alan Glazer, Senior Solicitor, Equality and Human Rights Commission 1

2. What we do Promote and enforce compliance with discrimination law
Protect and promote human rights
Treaty Monitoring
Examples of our work
Provide guidance
Carry out inquiries and take enforcement action
Support strategic legal cases and interventions 2

3. Power to the bump
Tip 1: Talk to your boss Tip 2: Go to your antenatal appointments Tip 3: Plan your maternity leave Tip 4: Talk about risks Tip 5: Avoid stress 3

4. PART ONE - PREGNANCY and MATERNITY 4
An Introduction to Pregnancy and Maternity Discrimination
Part One – Pregnancy and Maternity
PART ONE -
PREGNANCY and MATERNITY 4

5. The protected period
Starts when a woman becomes pregnant and continues to end of maternity leave.
Compulsory maternity leave – minimum two-week period
Ordinary Maternity Leave (OML) – 26 weeks
Additional Maternity Leave – further 26 weeks on top of OML
If discrimination occurs outside protected period, it is not pregnancy and maternity discrimination. 5

6. Pay and eligibility
Distinction between Statutory Maternity Pay (SMP) and Maternity Allowance (MA)
SMP is payable to all qualifying employees who are more than 29 weeks pregnant or who have just given birth.
Continuity of employment and normal weekly earnings test
Notification requirements
Payment of SMP is not dependent on whether employee intends to return to work. 6

7. Rights during the protected period
Benefits must generally be maintained during OML and AML (except pay)
Particular rules apply to pay rises
Non-contractual payments
Bonuses
“Keeping in touch” (KIT) days 7

8. Unfavourable treatment
European law gives pregnant women or women on maternity leave a protected status.
Unlawful to treat a woman unfavourably because of her pregnancy or a related illness.
Also unlawful to treat a woman unfavourably because she is exercising or has sought to exercise, her right to maternity leave.
Neither motive nor intention is relevant.
No need for a comparator 8

9. Examples of unfavourable treatment
Dismissal
Demotion
Denial of training or promotion opportunities
Taking into account pregnancy –related sickness absence
Failure to consult on redundancy whilst on maternity leave
Disciplining for refusing tasks due to pregnancy risks
Making adverse assumptions
Depriving of right to appraisal
Excluding pregnant woman from business trips etc 9

10. Recruitment and promotion
Employer must treat a pregnant woman exactly the same way as any other job applicant.
Protections apply to workers as well as employees.
A recruitment agency should not ask a woman whether she is pregnant.
No need for a woman to tell her new employer that she is pregnant if job application is successful.
It is unlawful to discourage a pregnant employee from applying for promotion. 10

11. Antenatal appointments
Employers must allow a pregnant employee, regardless of hours worked or length of service, reasonable paid time off for antenatal care.
Employers can only refuse time off if it is reasonable to do so.
What is reasonable depends on the circumstances, including frequency of time off, notice given by employee, cover available. 11

12. Pregnancy-related illness
Employee is entitled to be off work until she has recovered and is fit for work.
No account must be taken of pregnancy related illness in disciplinary or redundancy decisions using sickness absence levels.
Special rules if employee is off work with pregnancy-related illness in the four weeks before her maternity leave is due to start
Special treatment for pregnant women is generally not discriminatory towards men. . 12

13. Health and safety
Employers have obligations to employees and agency workers.
Employers must conduct health and safety assessments and reduce / remove any risks to employees.
Pregnant employee’s working conditions may need to be adjusted.
Employers must provide suitable rest facilities for workers who are pregnant
If employee cannot do job due to health and safety risks employer must either change working conditions, offer a suitable alternative job or suspend her on full pay. 13

14. Case Study 1
See handout 14

15. Returning to work
An employer cannot postpone a return from maternity leave unless the employee is returning before 52 weeks’ leave without giving the required 8-week notice.
Employees are entitled to return after OML to exactly the same job that they did before the start of maternity leave.
After AML, an employer is legally required to ensure that the employee returns to the same job, unless this is not reasonably practicable (eg business re-organisations).
Employee has right to return to a suitable alternative job after AML. 15

16. Breastfeeding
No statutory right for workers to take time off for breastfeeding.
May be reasonable to alter employee’s hours of work in certain circumstances.
Employers have a duty to provide suitable workplace rest facilities for breastfeeding mothers.
A refusal to allow a woman to express milk or adjust her working hours may amount to sex discrimination. 16

17. Flexible working requests
Employees with 26 weeks’ service can request flexible working.
There is no right to require changes per se.
Employees can request changes to the hours, times and location of the work.
If informal agreement is not possible, there is a statutory right to request procedure.
Employer must respond to request in a reasonable manner and for a specific business-related reason.
Any changes to working conditions are usually permanent. 17

18. Dismissal and redundancy
Employees on maternity leave must be given the first option on any suitable alternative work that is available.
Failure to offer a suitable alternative job to an employee on maternity leave could be maternity discrimination.
Pregnant employees must not be left out of a redundancy consultation process.
Particular rules apply for fixed term contracts.
Redundancy selection criteria should never taken pregnancy-related leave into consideration. 18

19. Remedies Grievance procedures Pregnancy and maternity discrimination
Direct sex discrimination
Indirect sex discrimination
Victimisation
Unfair dismissal
Constructive dismissal 19

20. Case Study 2
See handout 20

21. PART TWO – SHARED PARENTAL LEAVE (SPL)21

22. PART TWO - PART TWO – SHARED PARENTAL LEAVE (SPL) 22
An Introduction to Pregnancy and Maternity Discrimination
Part Two – Shared Parental Leave (SPL)
PART TWO -
PART TWO – SHARED PARENTAL LEAVE (SPL) 22

23. Introduction to SPL
Aim is to provide parents with greater degree of flexibility with childcare arrangements.
Applies to adoptions.
Mother is legally entitled to Shared Parental Leave with the father or her partner within the first year of the baby’s birth.
What happens when both parents qualify for SPL?
What about when only one parent qualifies for SPL?
Up to 50 weeks’ SPL and up to 37 weeks’ Shared Parental Pay (SPP) may be taken. 23

24. Eligibility for SPL
To trigger the right to SPL for one or both parents, the mother must:
have a partner
Be entitled to maternity/adoption leave; or to statutory maternity/adoption pay or maternity allowance (if not eligible for maternity/adoption leave)
Have curtailed, or given notice to reduce, their maternity/adoption leave, or their pay/allowance (if not eligible for maternity/adoption leave). 24

25. Eligibility for SPL (cont)
Mother must share the main responsibility for caring for the child with the named partner
Continuity of employment test
Employment and earnings test
Agency, casual and zero hours workers
It is employee’s responsibility to check own eligibility 25

26. Entitlement to SPP Both employees and workers can receive SPP
Must be paid through PAYE
Must have been employed for 26 weeks by the end of the qualifying week – 15th week before expected week of childbirth
Average earnings requirement
Amount of SPP 26

27. Effect of enhanced maternity or adoption pay
Many employers pay enhanced maternity pay.
These employers may not pay the same enhanced payments for SPP.
Potential sex discrimination issues.
Direct or indirect sex discrimination.
No case-law on this issue yet. 27

28. Applying for SPL 8-week notification requirement.
Employee can withdraw notification on or before the 15th day after the notification was originally made
Advisable for employees to have an early and informal discussion with employer regarding intentions to take SPL.
Employer cannot refuse a notification for continuous leave.
Employer can refuse a discontinuous leave notification.
Employee can only give 3 notices 28

29. Taking the leave
Partner could begin to take SPL while the mother is still on maternity or adoption leave.
SPL can be taken in one block or discontinuous blocks.
Parents can change their minds about opting- in to SPL and about how they divide their leave.
Annual leave
SPLIT days 29

30. Returning to work after SPL
Employee entitled to return to the same job if combined leave period is 26 weeks or less
If SPL is more than 26 weeks, right to return to same job if reasonably practicable or to a suitable alternative job.
Interplay with unpaid parental leave 30

31. Employee protections
Employees on SPL entitled to benefit from same terms and conditions of employment, except remuneration.
In a redundancy scenario, employees on SPL must be offered a suitable alternative vacancy if one is available.
Employee should not suffer detriment, or be dismissed, for seeking to take SPL. 31

32. General discussion / overview
Ultimate aim was to provide a more flexible structure for parents.
Seems to have been very low take-up so far.
Financial considerations may be one reason for low take-up.
Another reason for low take-up may be the complexity of the legislation itself and the process required to apply for SPL
SPL regime itself may face challenge under European law in the future.
Audience views / personal reflections? 32