Sex Discrimination Part 2
The rights I am going to cover today are very sex specific, but they do affect all employees, whether male or female, directly or indirectly.
It is the question of having babies – known in employment law as maternity rights. I do not plan to bore everyone rigid with the detailed rules relating to statutory maternity pay or statutory maternity leave but there are a number of situations that arise quite frequently in the workplace that need explaining.
It is sex discrimination and an automatically unfair dismissal to terminate the employment of a woman because she is pregnant. I have said it before in these articles, but some people think I’m joking; I’m not - pregnant women should be treated as ‘bomb proof’ in the workplace.
An employer who learns that an incompetent employee who has not been with the company long is pregnant is making a big mistake if he dismisses her. An employee who finds out that she is pregnant improves her legal protection as soon as she tells her employer. She has to tell the employer at some time so sooner rather than later is my advice. That being said, a job applicant who is pregnant has no legal obligation to tell the interviewer and, unless it is all too obvious, she is probably making a mistake if she does tell the interviewer.
A second common problem with maternity rights is where, as often happens, an employee who worked full time before she had a baby wants to come back to work on a part time basis.
The strict legal position is that a woman who has a baby has the right to come back to her old job. If that is a full time job, the legal right is to come back to the full time job.
However, that is not the end of the story. Requiring somebody to work full time is a rule that, although it applies to men and women equally, can discriminate against women. This is because more women look after children than men. This means that fewer women can work full time than men, therefore, it is potentially discriminatory to require a woman to work full time. However, an act of indirect sex discrimination can be justified by employers.
What does all this mean in practice?
Clare has worked for Widgit & Co for nine months when she goes off on maternity leave. She worked full time as a senior supervisor. She has her baby and decides that she needs to spend more time with her baby than full time work will allow. Clare asks her employer if she can work three days a week.
The employer immediately and without any proper consideration says “no”. This will be indirect sex discrimination and will be unlawful. The employer made the mistake of not considering Clare’s request properly.
What should the employer do? The starting point is to consider the request properly and with an open mind. Look at the needs of the job, look at other options within the workplace – what about job sharing? Are there other part time jobs that Clare could do? The employer should discuss the position with Clare. If the employer could not get the job done properly without Clare working full time and can explain why this is the case to both Clare and, more importantly, a Tribunal, the employer can refuse the request.
The key thing for employers to bear in mind is the need to approach the request objectively and with an open mind. Employers shouldn’t feel that the request has to be accepted in every case or refused in every case but they do have to show that they have looked at all the options and discussed them with the employee before rejecting a request to work part time.
If you want to change from full time to part time work in order to spend more time with your baby, put your request in writing and make it clear that you will be as flexible as you can be. Try to see it from your employer’s point of view; if your request is unrealistic say working from 10 – 2 every other day and making the time up on Sundays - you are making it easier for your employer to fairly reject your request. If on the other hand you consider all the options with your employer, you will make it far easier for him or her to accept your request. The key is communication and compromise.
Published 27/09/2006.
