Managing pregnancy and parenthood in the workplace

20 May 2022
4 min read

Tina Chander explores the legal responsibility of employers.

Working mothers make up a growing share of the UK’s workforce. Last year research undertaken on behalf of Resolution Foundation and the Centre for Economic Performance at the London School of Economics (LSE) indicated that 74 per cent of UK mothers to children aged three or under were employed in 2021, demonstrating an upsurge of six per cent since 2019. As such, it’s becoming increasingly important that business owners better manage the challenges that both pregnancy and new parenthood can pose to practice standards and patient care. But how can you do this, whilst also making sure you stay on the right side of discrimination law when it comes to advocating for new mums at work?

The law
All pregnant employees legally have the right to paid time off for antenatal care, maternity leave, pay or allowance, and the protection against discrimination or unfair treatment. It’s illegal to show prejudice to women in the workplace because of their pregnancy, any resulting illness, or for taking time off through sickness or maternity leave. This could be grounds for tribunal, along with:

  • If an individual is improperly dismissed/demoted
  • Has their contractual terms altered
  • Their decision to breastfeed hampers a return to work

Fair treatment
The law offers protection against discrimination to both existing employees, and those being recruited. For example, it would be illegal to enquire whether a potential candidate is pregnant, already has children, or plans to have any. Asking is in breach of the Equality Act 2010.

Women are not obliged to tell an employer they are expecting until at the latest 15 weeks before their anticipated due date, so should a recruiter withdraw a job offer upon discovering a pregnancy they would risk claims of automatic unfair dismissal.

With existing employees who are new parents or soon to become them, bosses should ensure that they are given equal opportunity to further their careers. Promotions should be open to all people with relevant experience to apply, regardless of their parental status. Declining an application purely because someone is pregnant or on maternity leave, is in direct violation of sex discrimination laws.

Equally, redundancy or termination protocols should not differ between those with children, those without, or those that are expecting. Dismissing an employee for any reason relating to parenthood will amount to automatic unfair dismissal. Terminating the employment of someone pregnant/ on maternity leave should be done in writing, with thorough reasoning. By not providing adequate proof of a fair assessment the employer puts themselves at an intensified risk of legal action.

Duty of care
The additional stresses placed upon expectant mothers’ physical and mental wellbeing can affect their safety at work.

As such, employers should perform regular risk assessments of the working environment and if necessary, consider modifying working conditions to mitigate any threat to the health and safety of any new/ expectant mothers. Not doing so could amount to pregnancy and maternity discrimination.

Common risks might include standing or sitting for prolonged periods or working long hours with limited rest bite. Practical measures should be taken to remove these risks wherever possible. This might involve changing someone’s working hours, offering more frequent or additional breaks, or simply providing bottled water. However, in rare cases, the only viable option might be offering alternative work for the pregnancy’s duration.

In these instances, the role should be relevant or suitable, and be on the same pay and benefits, as it is illegal for employers to alter an employee’s contractual terms and conditions without their prior agreement.

Maternity and shared leave entitlements
Pregnant employees are entitled to take paid time off to attend antenatal appointments; not allowing this amounts to detriment under the Employment Rights Act 1996. The co-parent will also be allowed to take unpaid leave to attend two antenatal appointments.

All employees, irrespective of their length of service, are eligible to take 52 weeks maternity leave. However, they must have worked for their employer for at least 26 weeks before the 15-week qualifying period, prior to the anticipated birth date to be eligible for Statutory Maternity Pay (SMP).

Employees need not take their full maternity leave if they don’t wish to, but they will need to take a minimum of two weeks off work after the baby is born.

Navigating the return to work
Anyone only taking up to 26 weeks of maternity leave can expect to return to their previous role on the same terms and conditions. However, those opting to take more than 26 weeks' will only return to their old job if the employer deems it “reasonably practicable”. In these cases, it is the employer’s responsibility to provide a legitimate reason for the change, and the new role offers must not only be appropriate but on the same contractual terms.

Of course, some employees may wish to change some contractual details to reflect their new circumstances, for example, a change to working hours. If they have at least 26 weeks of service, they are entitled to submit a flexible working request.

All flexible working requests must be considered fairly, and a final decision given within three months.

The point of no return
Should an employee choose not to return to work, they must follow their employer’s standard resignation process, including giving relevant notice. However, if they believe that their return has been mismanaged, or that they have been effectively ‘engineered’ out of the business for disgenuine reasons, they might wish to seek to raise a formal complaint ('grievance').

Becoming a new parent is often an incredibly emotive time of immense change, so remaining tactful and following stringent protocol is always sensible when handling HR matters pertaining to pregnancy. This should avoid most possible legal complications.

Plus, with mothers now accounting for an even greater share of the employment market, inclusivity will be crucial for attracting and retaining a truly diverse workforce. So, it’s important all employers play their part in facilitating the talent that working mothers have to offer.