Timing and documentation shape risk for UK firms under new maternity and pregnancy protections

As you may be aware, the government has launched four consultations to support the implementation of the Employment Rights Bill, now in its final stages in Parliament. One of the consultations looks at the enhanced dismissal protections for pregnant women and new mothers and it is prompting concern among large employers, particularly, around recruitment, promotion, and internal moves. The issue is how employers manage performance and conduct fairly during the extended protected period and avoid the risk of triggering legal claims. We’ll speak to employment lawyer Anne Sammon about that.

The proposals under consultation are wide-ranging. They extend protection beyond maternity leave to cover pregnancy itself and the period following return to work. That means an employee could be protected from dismissal for several months before, during and after maternity leave, unless the employer can meet a high threshold of justification.

For HR, the consultation raises difficult questions around performance management, policy consistency, and risk mitigation. Dismissals for conduct or capability will become significantly harder to defend, particularly in large organisations where policies are standardised across teams or jurisdictions.

One of the main concerns is around indirect discrimination. If policies are not carefully handled, or if they are inconsistently applied, returners may be treated differently to others, even unintentionally, which brings legal and reputational risk.

So let’s get a view on this. Anne Sammon has been tracking these developments closely and is advising clients on how to prepare for the new rights when they come in. So what about that indirect discrimination risk? How might it arise in practice?

Anne Sammon: “I suppose the risk in this situation is the longer we have protection for women returning from maternity leave the more likely, subconsciously rather than consciously, hiring managers are to think about those issues when they're thinking about recruiting and so there has always been a bit of concern that the more that we provide protection for employees in relation to maternity leave, almost the greater disincentive from employing them in the first place and, therefore, is there a greater risk that firms will decide to avoid hiring women who might either be likely to have children in the near future, or women more generally.”

Joe Glavina: “What are the legal risks for large employers with global operations or centralised policies?”

Anne Sammon: “So the challenge often for global employers is that the rules on maternity and the protection that we have in the UK is often very different from the protections that are elsewhere and therefore having a one-size-fits-all when it comes to a policy is likely to be quite challenging. So if you breach UK law because your policy is less generous, that potentially will put you at risk of a discrimination claim, or an unfair dismissal claim, depending on the particular circumstances. The other thing that I would say for global employers is there's also the kind of practical on the ground training that you provide to line managers. If line managers are managing employees in multiple jurisdictions there is a greater risk of them getting confused as to which set of rules apply in relation to which employee and we still see examples where line managers get these things very wrong. I've got a case on at the moment where a line manager failed to involve the HR team in a decision about an internal promotion, an internal secondment, and told the pregnant employee who had declared her pregnancy to him that the reason he wasn't hiring her into that role was because he couldn't spend the time training her up and then training up the person who would need to replace her on maternity leave. So given that we already have that kind of challenge with line managers and ensuring that they understand the UK legislation, if we add the global framework into that and the need to think about the laws in various different jurisdictions that just adds an extra layer of complexity, and there's a greater risk of line managers simply getting it wrong.”

Joe Glavina: “There will be employers who follow the right process but fail to document it well enough so they can’t show they’ve done things correctly. So they don’t have the necessary paper trail.” 

Anne Sammon: “We see this often. The process is one of the guardrails that you have to help defend any of these claims that come forward, but what is really important is the robustness of the decision itself and having a paper trail is so important because often when we end up in tribunal, witnesses will be talking about events that have happened years before, particularly with the delays that we've got at the moment in the tribunal system in England and therefore their memories of events are susceptible to forgetting things or just confusing situations whereas if you've got a nice, robust paper trail that sets out exactly what's happened, and why it's happened, you're not quite so reliant on that witness evidence and therefore you've got a better chance of defending your claim. Obviously, the downside of having a paper trail is that if something that is not helpful for your case is documented that is also disclosable but I would still veer on the side of creating that paper trail and making sure that decisions are documented so that in the future everyone is very clear on the rationale for the decision that was made.”

Joe Glavina: “Given the risk of discrimination claims which you talked about, the stakes are high aren’t they? They tend to be expensive.”

Anne Sammon: “Absolutely, I think there are a couple of different factors driving this. There is the point that they are uncapped claims. The second point is, from a reputational perspective, they can be significant. The media are often interested in the discrimination forum and therefore will show interest in those claims. So ensuring that you've got robust evidence to justify the decisions that you've made is really important and, obviously, as a lawyer, I would also say getting really good legal advice on what your options are in any of these situations is key.”

That consultation on ‘Enhanced dismissal protections for pregnant women and new mothers’ closes on 15 January so you still have a few weeks to put forward your views. You can respond online via the government’s website and we’ve included a link to it in the transcript of this programme for you.

- Link to government consultation: ‘Enhanced dismissal protections for pregnant women and new mothers’