FAQs: Pregnancy in the Workplace for Employers

1. What should you do if an employee is pregnant to avoid discriminating against her?
2. How can employers prevent pregnancy discrimination in the workplace?
3. When should a pregnancy risk assessment be done?
4. What are the consequences of failure to carry out a pregnancy risk assessment?
5. When are employers in the UK required to make reasonable adjustments for pregnant employees?
6. What are the potential consequences for UK employers found guilty of pregnancy discrimination?
7. What can I do if a pregnant employee isn’t performing?
8. Can an employer ask for proof of pregnancy?
9. Do staff need to inform their employer they are pregnant?
10. When can the protected period end after pregnancy?
11. One of your new starters has just announced she is pregnant. Will you have to pay her maternity pay?
12. Do pregnant women applying for jobs have to tell prospective employers they are pregnant?
13. One of your staff thinks that some chemicals we use may be harmful to her because she is pregnant. What should you do?
14. Your employee has been suffering a lot from morning sickness and having time off which is very disruptive. How can you deal with this?
15. You had been expecting your employee to seek part-time working for when she returned from maternity leave but she’s put in a request although she’s not yet 6 months pregnant. Can she ask now?
16. Can you dismiss a pregnant employee?

What should you do if an employee is pregnant to avoid discriminating against her?

Under the Equality Act, you must not discriminate against someone you employ, or are considering employing, because of their pregnancy, an illness related to their pregnancy, or their maternity leave.

Discrimination can include dismissing them, not offering them a job, changing their pay or other terms of employment, forcing them to work while on maternity leave or preventing them from returning to work because they are breastfeeding.

It is important to take this into consideration when managing this employee and to ensure that they are treated fairly. It can be helpful to seek expert advice to ensure you are not inadvertently discriminating against your pregnant employee.

How can employers prevent pregnancy discrimination in the workplace?

Employers should make sure that they are not discriminating against someone who is pregnant. This includes ensuring that employees are not treated unfavourably, made redundant or dismissed as a result of their pregnancy. This also covers promotion and training opportunities, which must be offered to pregnant employees.

It can be valuable to ensure all staff, particularly your managers  are aware of the law around pregnancy discrimination to avoid this taking place.

When should a pregnancy risk assessment be done?

It is important to carry out a risk assessment as soon as possible after being informed of an employee’s pregnancy. This will help you to identify any potential risks and take action accordingly.

What are the consequences of failure to carry out a pregnancy risk assessment?

You must, by law, carry out a pregnancy risk assessment. Failure to do so may constitute pregnancy and maternity discrimination under the Equality Act.

When are employers in the UK required to make reasonable adjustments for pregnant employees?

Once an employee has informed their employer in writing that they are pregnant, the employer must carry out a pregnancy risk assessment. They must then make any reasonable adjustments that are required to protect their employee and their child.

If the risk cannot be controlled or removed, they should adjust the employee’s working conditions and hours. If this is not possible, the employee should be offered suitable alternative work on the same terms and conditions, including pay.

If this is not possible, the employer must suspend the employee on full pay for as long as is necessary to protect the employee and their child.

What are the potential consequences for UK employers found guilty of pregnancy discrimination?

Employers found by an Employment Tribunal to have carried out pregnancy discrimination can be ordered to pay the employee compensation. This can cover any money such as loss of earnings  the employee has lost as a result of the discrimination. It will also include an injury to feelings payment as  compensation for any injury the employee has received due to the discrimination. In some cases it may include ‘aggravated damages’ for particularly bad behaviour by the employer.

What can I do if a pregnant employee isn’t performing?

If there are genuine issues with a pregnant employee’s performance, employers can place them on a Performance Improvement Plan.

Employers should make sure that any performance concerns are not related to the employee’s pregnancy – for example, morning sickness. If an employee is treated any less favourably because of their pregnancy, this could constitute pregnancy discrimination.

Can an employer ask for proof of pregnancy?

An employer can ask to see a medical certificate or ‘MAT B1’ form from a pregnant employee. Employees can get this from their doctor or their midwife once they are 20 weeks pregnant.

Do staff need to inform their employer they are pregnant?

Employees must inform their employer that they are pregnant no later than 15 weeks before their due date. They should also inform their employer the date they want to start their maternity leave.

When can the protected period end after pregnancy?

For people with the right to maternity leave, the protected period ends when their maternity leave ends or when they return to work, if this is earlier.

For people without the right to maternity leave, the protected period ends two weeks after their child is born.

All employees have the right to take maternity leave.

One of your new starters has just announced she is pregnant. Will you have to pay her maternity pay?

If she is earning at least the Lower Earnings Limit for National Insurance purposes (currently £123 per week) she will qualify for Statutory Maternity Pay (SMP) if, by the 15^th week before her baby is due, she has been employed for 26 weeks. There is a maternity pay and leave calculator for employers on the GOV.UK website. You can claim 92% of SMP back from the government, 103% if you are a small employer.

Do pregnant women applying for jobs have to tell prospective employers they are pregnant?

There is no obligation on job applicants to tell prospective employers they are pregnant. If you asked, that in itself would probably be an act of discrimination if a woman told you that they were pregnant  and they were the most suitable candidate in terms of their qualifications and experience, this could indicate that you had discriminated and the onus would be on you to show that their pregnancy did not influence your decision in any way.

One of your staff thinks that some chemicals we use may be harmful to her because she is pregnant. What should you do?

As an employer, you are under a duty to assess workplace risks and alter working conditions or hours of work to avoid any significant risk to the health and safety of new or expectant mothers in the workplace. This assessment should be done regardless of whether any employees are pregnant. The result of the assessment must be given to your employees but not necessarily in writing. If you fail to carry out the risk assessment, you may commit an act of unlawful pregnancy and maternity discrimination. If the assessment identifies a significant risk, you must alter the working conditions to avoid this. If this is not possible, offer other suitable alternative work or ultimately suspend your employee on full pay if this work is not available.

Your employee has been suffering a lot from morning sickness and having time off which is very disruptive. How can you deal with this?

Unfavourable treatment because of pregnancy related illness is unlawful discrimination under the Equality Act. You should be disregarding absence caused by morning sickness. For example, you must not take any disciplinary action for excessive time off otherwise you would face a potential Employment Tribunal claim. Is there flexibility in the business to alter her hours so that she comes to work later? She might welcome this as a short-term solution.

You had been expecting an employee to seek part-time working for when she returned from maternity leave but she’s put in a request although she’s not yet 6 months pregnant. Can she ask now?

Since June 2014, any employee with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. However the new scheme is much less rigid than the old one and allows the employer 3 months to deal with the request. You should approach the request in the same way you would have done anyway.

Can you dismiss a pregnant employee?

As long as the dismissal has nothing to do with this employee’s pregnancy and there is a fully-justifiable reason for dismissal, it is possible to dismiss a pregnant woman. We strongly advise that you are extremely careful to record performance issues and the dates these were raised.  If you are making a pregnant woman redundant, then you must be clear that this is a fair redundancy and that she has not been unfairly selected because of her pregnancy.

Remember that if there is a claim for any type of discrimination then the employee or worker does not have to have two years’ service to bring a claim.

Contact us today to find out more on 01273 609911, or email info@ms-solicitors.co.uk.