1. Camilla Palmer Injury in Childbirth: Employment Implications
RESOLVING WORKPLACE DISPUTES WITHOUT LITIGATION
Injury in Childbirth: Employment Implications
Camilla Palmer
YOUR EMPLOYMENT SETTLEMENT SERVICE (YESS), SOUTH WING, SOMERSET HOUSE, STRAND, LONDON, WC2R 1LA

2. 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

3. 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

4. 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.

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

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