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Are you being replaced? How to deal with maternity discrimination
Posted 5th April 2017 by Claire Gilbert, Consultant - Employment Law
The BBC’s recent maternity leave thriller 'The Replacement' drew in millions of viewers, culminating with a dramatic and polarising finale last week. The wider issues around job insecurity during maternity leave, sadly, are a less entertaining reality for thousands of women in the UK.
Maternity and pregnancy discrimination has significantly increased over the past decade. A report from the Equality and Human Rights Commission found that 54,000 women a year are forced out of work after having a baby. While the TV show was criticised for being far fetched, it did address the very real uncertainty many women going on maternity leave face: is my job at risk, and if so, what should I do?
Maternity cover nightmares
Like the TV show’s protagonist, Ellen, many women feel they are being edged out by their employer or temporary replacement while on maternity leave. At Maternity Action, we supported a woman whose cover sent her adverts for jobs elsewhere that she “might find interesting”. Women in a similar situation should inform their employer about this behaviour, and consider more formal action, such as a written complaint.
We regularly hear from women who are informed on leave, or when they return to work, that there has been a restructure and their job no longer exists. We recently worked with a woman who was told her role was redundant and she would have to apply for a new job they had created, competing with her maternity cover for it. Since the new job was almost identical to the one she had been doing, she felt her employer was trying to find a way to replace her with the cover. She made an employment tribunal claim, which her employer settled before a tribunal hearing.
Situations like this mean women have to piece together what has happened to their role and assess whether it can be challenged – a complex issue of law and evidence – while adjusting to a new baby. And claims to the tribunal have to be made within the short time window of three months minus one day from the relevant actions happening.
We have also seen an increase in women being told they are responsible for the recruitment, training and management of their maternity cover, even though this is wholly the responsibility of the employer. Some women are even told their pay may suffer on their return to work if the cover doesn’t do well. As a result, many women feel under immense pressure to return from maternity leave earlier than planned.
How does the law protect women taking and returning from maternity leave?
Employers must not treat employees less favourably because they are pregnant or on maternity leave. All women are entitled to take up to 52 weeks maternity leave and return to work, and employers should assume that 52 weeks will be taken.
If 26 weeks or less is taken, the employee is entitled to return to the same job. Similarly, if more than 26 weeks is taken, the employee is generally entitled to return to the same job on the same terms, unless there is a genuine and good reason why this is not possible. This is called the “reasonably practicable” test (a good example is a genuine redundancy) in which case the employee must be offered a job which is both suitable and appropriate for her.
An employer preferring the maternity cover is not a sufficient reason to refuse a return to the same job. If a post is at risk of redundancy during maternity leave, the woman has extra protection and is entitled to be offered a suitable vacancy. She should not be expected to apply for positions or go for interviews.
Women who are not consulted about changes to their job, are not allowed to return to their old job, or are offered an alternative job that is a demotion, may have a claim for discrimination. In certain circumstances dismissals because of pregnancy or maternity leave can be automatically unfair, meaning there is specific legal protection. It is extremely important to seek legal advice in these circumstances.
Action women can take to protect themselves during maternity leave
The onus is on the employer to comply with the law. However, to best protect yourself, communication is important.
While the recruitment of maternity cover is the employer’s responsibility, try to be involved in the process, and help create a clear job description for your role.
Stay in touch during maternity leave to the extent you are comfortable. For example, request regular email or post updates to stay connected.
Women are entitled to work up to 10 paid keeping in touch days, which are days when they can go into work or attend training. This can be a great opportunity to keep up relationships, increase confidence and maintain skills without bringing maternity leave, or statutory maternity pay, to an end. This can also help identify any potential problems that might need to be ironed out before returning.
Many difficulties arise when a line manager changes during maternity leave. Women on leave should be notified of such a change. It is a good idea to forge a relationship with the new manager as soon as possible.
Above all, women should prioritise their mental and physical health and that of their baby. They should keep a record of any concerns regarding the employer and seek advice early on.
This article was also published by theguardian.com