Maternity discrimination – Costly claims and lessons to be learned

For many women, returning to work following maternity leave is a mix of nervous excitement as well as trepidation. For employers, it is a chance to show how much they value their returning staff, offering them support, perhaps mentoring and coaching, and a chance to settle back into the working environment and new routines. However, some employers appear to have not “received the memo” when it comes to the legal protections given to women who are pregnant or on maternity leave. Some employers appear to make decisions which result in either costly payouts or employment tribunal claims. Emma O’Connor, Partner and Head of Client Training, reflects on two recently reported maternity discrimination cases and gives her tips for how to avoid discrimination claims.

Returning to work is not a “laughing” matter

Sarah Lindup worked for Manchester software firm Bright HR. Before leaving to go on maternity leave in February 2022, Ms Lindup had recently been promoted to the web team and was earning around £65,000 a year. During her maternity leave, Ms Lindup also won awards at Bright HR’s company awards ceremony for her 'notably high sales performance' and being a 'highly valued team member'. She also won the 'millionaire award' for earning the HR organisation £1.3 million in the previous year - without even working the full 12 months.

Whilst she was on maternity leave, Ms Lindup was told verbally and in writing that, when she returned to work, she would return to the web team. However, during her maternity leave, her manager was replaced and her new manager, Ms Stott, asked her to attend a meeting which was described as a “mum-to- mum” chat. In this meeting, Ms Lindup discussed returning to her web design job to which Ms Stott laughed. In her evidence before the employment tribunal, Ms Lindup said it was as if this was a “ludicrous idea.” Instead, a job with an annual salary of £24,000 was put forward. Ms Lindup returned to work in November 2022 and for two-weeks she was put in the 'business restart team' on the basis that she could get back up to speed. After the two-weeks, however, Ms Lindup did not return to her old job but was reassigned to another team which did not have the same earning potential as the web design team. Ms Lindup brought a claim for maternity discrimination.

The employment judge accepted that Ms Stott’s actions – in laughing at her - undermined the relationship between Bright HR and Ms Lindup. Employment Judge Abigail Holt found that the decision regarding Ms Lindup’s return to work had been made during her maternity leave without any discussion with Ms Lindup. She also found that the meeting with Ms Stott was couched as an informal “mum” chat; however, the reality was it was a much more formal meeting and Ms Lindup should have been warned as such. Judge Holt said it was “irrational” for Bright HR to make such a decision about Ms Lindup’s return to work. Why, having given Ms Lindup awards in May 2022 for her performance, did the employer change their mind about her in October 2022? Judge Holt said, "On the balance of probabilities, the only conceivable reason for the sudden volte-face in the [employer]'s attitude towards the claimant, and the resulting massive loss of remuneration, was her maternity leave."

Compensation is yet to be decided.

Promotions (or rather not)

In my equality training courses, I often give examples of women returning from maternity leave to find that their subordinate or maternity cover is now their manager or that they have been overlooked for promotion because they were forgotten about (because they were on leave) and how this could be discriminatory behaviour. My audiences often shake their heads as if I am making such a situation up! Alas no. It has now been reported that a former Citibank employee has accepted a settlement of £215,000 for … being overlooked for promotion whilst on maternity leave given that her maternity cover had been promoted above her!

Ms Bradley was assistant vice president in Citibank’s Belfast office. During return-to-work discussions with her employer, Ms Bradley’s managers told her the person who had been covering her role had been promoted from assistant vice president to vice president.

Ms Bradley brought claims against her employer for sex and disability discrimination and victimisation. Citibank reportedly settled the case for £215,000.

Protections whilst on maternity leave

Under the Equality Act 2010, “pregnancy” and “maternity” are protected characteristics. This means it is unlawful to discriminate against a woman based on these factors. There are also protections regarding pregnancy-related illnesses as well as protections for breastfeeding mothers – including health and safety obligations. It is also automatically unfair to dismiss a woman for a reason connected to her being pregnant, to childbirth or because she is on maternity leave. There are specific protections for women who are pregnant or on maternity leave (which are also extended to parents on adoption leave or where a parent’s shared parental leave is for a consecutive period of 6-weeks or more) with regards to suitable alternative employment if their role is placed at risk of redundancy.

With regards to maternity leave and returning to work, if an employee returns to work at the end of or before their ordinary maternity leave expires (i.e. returns in the first 26 weeks) she is entitled to return to the same job on the same terms and conditions. However, if a woman returns to work at the end of or during their additional maternity leave (i.e. the following 26 weeks) the position is different. In this situation, a woman is entitled to return to the same role unless it is “not reasonably practicable” for her to return to that role. In this case, she should then be offered a suitable and appropriate alternative role with equivalent terms and conditions.

There are also plans under the Employment Rights Bill to prevent women who are pregnant or on maternity leave (and for 6 months following a return to work) from being dismissed, save in exceptional circumstances (as yet to be determined).

Practical tips for employers

With regards to pregnancy and maternity leave at work (and other family leave) the key advice I can give employers, managers and HR teams is:

• Have a clear plan

Before someone goes on maternity or other leave, agree between management/HR who (and how) you are going to manage their leave. Worrying about their job should be the last thing on the pregnant employee’s mind. In doing so the employer can ensure that there are no mixed messages. It is also a chance to discuss work/client plans and handovers with the employee (and maybe the team). A clear and joined-up approach also demonstrates the employer has “got this.”

• Agree communication

Agree how you are going to communicate with the employee whilst they are on leave. Not obtrusively, but how will you send newsletters, information about any jobs/promotions, team news.

• Do not make assumptions

Do not assume that the employee does not want to hear from you or know about promotions at work. This is the same whenever an employee is away from the business for a period of time.

• Invite

Invite the employee to events and socials. Again, making sure events are inclusive – so maybe things like celebratory team lunches where they can bring their baby. This shows that you have not forgotten the employee and can also help the employee feel they remain part of the team and engaged in the business.

• Manager training

Ensure managers are trained and understand the importance of good management behaviours (and the risks if they fall short – which could include personal liability) if an employee announces they are pregnant or if they are on maternity or other family leave. I would also extend this to training on how to manage (and spot) a flexible working request.

• Use KIT days

Consider how the business (and employee) can utilise KIT (or equivalent) days during maternity leave. Is this a chance to catch up on training or come in for an important client meeting? Remember a KIT Day is to be paid at the employee’s normal rate of pay.

• Giving difficult news

Yes, sometimes there are workforce decisions which are made when someone is away from the business. As an employer, being clear and transparent and focusing on good communication with staff can go a long way to helping these messages land. Building trust and ensuring this continues during leave is really important. Document meetings and also make sure you are clear when (and if) a meeting is called with an employee and the degree of formality and prior warning which may be needed.

• Take advice

Ensure that you take advice, particularly if a redundancy situation arises in a team which has individuals on maternity and other family leave.