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?
17. What are employers’ responsibilities towards pregnant employees?
18. What helps prevent workplace discrimination against pregnant employees?
19. How many hours can a pregnant woman work a day?
20. What are examples of accommodations for pregnant employees?
21. Do staff need to inform their employer that they are pregnant?
22. Are there specific rights for pregnant agency workers?
23. What rights does a pregnant worker on a zero-hour contract have?

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 to manage poor work performance.

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 you ask an employee if they are pregnant?

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 of 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 £125 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 and 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 work when she returned from maternity leave, but she’s put in a request although she’s not yet six months pregnant. Can she ask now?

Since June 2014, any employee with at least 26 weeks of 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.

What are employers’ responsibilities towards pregnant employees?

The main four legal rights that employers must take into account for their pregnant employees are:

• Paid time off for antenatal care (including medical appointments and antenatal or parenting classes if recommended by a doctor or midwife)
• Maternity leave
• Maternity pay or maternity allowance
• Protection against unfair treatment, discrimination or dismissal

What helps prevent workplace discrimination against pregnant employees?

Employers should understand what constitutes pregnancy discrimination in the workplace, and ensure that they put in place best practice to ensure that they are not discriminating against their pregnant staff. Dismissing someone who is pregnant, changing their pay or other terms, or making someone who is pregnant redundant could all constitute pregnancy discrimination under the law.

How many hours can a pregnant woman work a day?

Pregnant employees can continue to work the hours that they were working before they became pregnant. However, they should only continue to work these hours if it is safe to do so. Employers have the responsibility to ensure that pregnant employees can safely continue to work their specified hours. If the working conditions of a pregnant employee could cause a risk to the employee or their baby, the employer should take reasonable steps to remove these risks – which could involve offering the employee different work or changing their hours.

What are examples of accommodations for pregnant employees?

Once an employee has informed their employer in writing about their pregnancy, the employer will have to check their job for any health and safety risks. Employers should consult with their pregnant staff and ensure that they take into account what the employee needs. Examples of steps an employer may take could include:

• Allowing an employee to work from home at times
• Change their working hours to avoid rush hour, or offer flexible working or compressed days.
• Provide a more comfortable chair
• If the employee is not able to carry out their current role due to their pregnancy, the employer may offer different work. This work cannot pay less than the employee’s current job, or have worse benefits.

Do staff need to inform their employer that they are pregnant?

Employees must tell their employer about the pregnancy at least 15 weeks before the beginning of the week the baby is due. If this is not possible (for example, because they did not know they were pregnant), the employer must be told as soon as possible. Employees should also tell the employer when they want to start their statutory maternity leave and statutory maternity pay.

Are there specific rights for pregnant agency workers?

Agency workers may be able to get Statutory Maternity Pay but cannot get Statutory Maternity Leave. Agency workers who have been working in their role for 12 or more weeks have employee’s pregnancy rights. This includes protection from discrimination, including if a hirer will not allow an agency worker to come back to work after having leave due to maternity, or if they end an agency worker’s employment because they are pregnant.

If there is a risk to a pregnant agency worker’s health, the hirer should make reasonable adjustments, find them alternative work, or if they are unable to do either of these, should pay their worker at the same rate for the expected length of their contract.

What rights does a pregnant worker on a zero-hour contract have?

Workers on a zero hours contract are entitled to Statutory Maternity Pay, basic health-and-safety protection during pregnancy and protection from discrimination. But some of these rights have qualifying conditions which can be harder to meet if the worker has irregular work.

As experienced Employment law solicitors, we provide expert employment law advice to employers. We can assist with legal advice to ensure employers prevent pregnancy and maternity discrimination in the workplace.

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