Two women in Northern Ireland have recently been awarded compensation over discrimination in connection with their maternity leave.
Judith Hitch attended a return to work interview after the birth of her son and had asked for changed hours to fit childminding arrangements but was told she would only be offered unsuitable hours. She became upset and left the meeting and her manager assumed she had resigned and sent her P45. The tribunal found her employer had made no real effort to bring her back to work after her maternity leave and awarded her over £8,000 in compensation for sex discrimination and unfair dismissal. In another case Richenda McAleenan was told she could no longer act up in the absence of her manager after taking maternity leave because she would not know what she was doing. The tribunal found there was an implied term in her contract allowing her to act up and ruled that she was in effect no longer allowed to return to the job in which she was employed before her absence and she was awarded over £8,000 in compensation.
Women have rights in relation to pregnancy and maternity leave under both the Sex Discrimination (NI) Order 1976 and the Employment Rights Order 1996 as amended. A woman has the right not to suffer detriment in connection with pregnancy or maternity leave. For example, her working conditions should not be made less favourable, she should have the same access to training or promotion opportunities, and she should not be harassed or dismissed because of pregnancy or maternity leave.
Pregnancy and maternity related discrimination can take a number of forms. Direct pregnancy discrimination is when an employer treats a woman less favourably on the ground of her pregnancy or maternity leave. Not giving a married woman equal treatment compared with a single woman in a recruitment exercise, for example, because she might become pregnant in the near future, could be direct marriage discrimination under sex discrimination law.
Indirect sex discrimination occurs when an employer applies a provision, criterion or practice equally to both men and women but which puts, or would put, women at a particular disadvantage when compared to men (or vice versa). A policy of requiring employees to have no absences of any significant duration in order to achieve an above average appraisal rating could be indirectly discriminatory to women who take time off on maternity leave, unless the employer can objectively justify the practice. A refusal to allow a breast feeding mother to take additional breaks at work to breast feed or express milk could be indirect sex discrimination.
Normally a woman has to make a comparison with another person in the same or similar circumstances and show that the other person has been treated more favourably in order to make a successful claim of direct sex discrimination. A woman who is pregnant or on maternity leave does not need to find a comparator who is not pregnant or not on maternity leave in order to prove she has been discriminated against. Discrimination on grounds of pregnancy will automatically be discrimination on grounds of sex.
Dismissing a woman because she is pregnant or on maternity leave is also automatically unfair dismissal regardless of how long the woman has worked for the employer.
Complaints of discrimination related to pregnancy or maternity leave can be made to an industrial tribunal. A woman who is considering making a complaint to a tribunal must generally raise the complaint through her employer’s grievance procedure first.
For further information on your rights while pregnant or on maternity leave contact your local CAB. Individuals and employers can obtain more information on all aspects of sex discrimination from the Equality Commission for Northern Ireland’s enquiry line on 028 90 890 890 or from www.equalityni.org .
Siobhan Harding is an Information & Policy Officer with Citizens Advice