Blog: Pregnancy & maternity in the workplace – part 4In the last of our series looking at Pregnancy and Maternity in business, Anne-Marie Boyle looks at the tricky issues thrown up where a dismissal situation (including redundancy) arises during or after a period of maternity leave. We know that in life (despite our best efforts), nothing stays the same and this is very much the case in the workplace also. It is possibly a woman’s biggest work fear that whilst she is on maternity leave, her employer will decide they no longer need her – or worse, prefer her ‘stand-in’.  In my experience, and those of my colleagues, neither of these scenarios are a rare occurrence. Special protections for women who are pregnant or taking maternity leave There are specific protections for women around this time.  These protections include a claim for automatic unfair dismissal (so, no need for 2 years’ qualifying service) if: A women’s dismissal is connected with her pregnancy or maternity leave; or A woman is made redundant and s10 of the Maternity and Parental Leave Regulations 1999 (MAPLE) apply and have not been followed (more on this one later!); or A woman is made redundant from a pool and her selection is connected with her taking maternity leave or pregnancy. Additionally there are the significant protections in the Equality Act 2010.    These prevent discrimination by reason of pregnancy and maternity and sex discrimination when someone is dismissed. Again, these claims do not require any qualifying service and can attract unlimited compensation and injury to feelings award.  (Our earlier blogs would be worth referring back to for more detail Menzies Law Blogs) What about where an employee’s absence on maternity leave reveals to her employer that her role is not needed? This happens a lot in practice.  Work is distributed whilst the employee is away amongst others in the team, or, is simply not done. This was the case in SG Petch Ltd v English-Stewart.   Ms English-Stewart was employed as a marketing manager with a team of 5.  As she attempted to return from maternity leave, her manager informed her that ‘they had coped’ without her and therefore she was redundant. She brought a claim for unfair dismissal arguing that her dismissal was ‘connected’ with her pregnancy.  At the EAT, they found that the reason for the Claimants dismissal was not that she had taken maternity leave, but because she was redundant because her work had been distributed elsewhere. However, the EAT sent the case back for reconsideration on the ‘selection’ point above.  Should she have been in a pool for selection? And if so, why was she selected?  Clearly, if the only reason she was selected for redundancy was because she had just been on maternity leave, then she would be successful (which in this case it certainly looked like the case!). The clear message is that whilst it is not in itself unlawful for an employer to consider a redundancy situation that arises by virtue of a maternity leave, this type of scenario must be handled correctly. Employers should be asking themselves ‘are other employees doing similar work?’  If so, should there be a wider selection process.   Fair selection criteria and its application will also be crucial here. If the employee who is coming back from maternity leave is the one who is selected, you need to ensure you have transparent objective reasons for picking her. The ‘section 10’ conundrum This is another tricky and often misunderstood area of law. Section 10 of MAPLE provides an obligation on an employer to make an employee an offer of suitable alternative employment once she is redundant or at risk of redundancy whilst she is on maternity leave. When does this duty kick in? As soon as the decision is made to delete the woman’s role. It does not arise following a competitive interview process to decide which employees to slot into a new role because their positions have been made redundant.  It does, in effect, put women on maternity leave at ‘the front of the queue’ for alternative positions. It also only applies if the woman is still on maternity leave.  Once she has returned to work (or also whilst pregnant) there is no specific protection under s10 MAPLE.   As such, we are aware of some employers delaying any decision until after an employee has returned to work. What must be offered? This is interesting – the employer has to make ‘an’ offer of a suitable alternative vacancy: it does not necessarily have to offer every role or even the role that the woman most wants (if there is good reason for not doing so). What about if you have more than one woman made redundant, still on maternity leave yet there is only one suitable alternative vacancy?  My best guess here is that you can make a conditional ‘offer’ (which is all the law requires) to both women and if they both accept it, then they can be asked to attend a competitive interview or other selection process. Is there a legal obligation for an employer to provide cover for a woman’s role whilst she is on maternity leave? Again, an interesting one. Many woman would argue that if their role is not covered whilst they are away, then it is obvious that their role will ‘shrink’ and make a redundancy inevitable when they try to return to work.   There is a logic to this and it is definitely something I have witnessed in practice. Whilst there is no statutory obligation on an employer to ‘cover’ a role whilst their employee is on maternity leave (and many will take the opportunity to make some costs savings at this time), I think it is definitely arguable that, for certain types of roles, a failure to recruit cover could amount to pregnancy/maternity discrimination under the Equality Act. Of course, it is open to an employer to argue that it would do the same with any type of lengthy employee absence – but it is certainly one to think about. We have advised employers on many dismissal scenarios arising around the same time as either a pregnancy or a maternity leave. Our advice is invariably to be very sure why the dismissal (usually redundancy, but not always) is necessary and justified. If there are transparent and objective reasons, there is no reason for this to be unlawful or discriminatory. However, the procedure adopted will be crucial both to ensuring the decision-making is objective and not open to challenge. This is the last in our Pregnancy and Maternity Blog series.  Tamsin and I really hope you have found them useful.  As always we’d welcome your thoughts and feedback and of course if you have a pregnancy or maternity issue you’d like advice on, please get in touch with us.  / / 0117 325 0526... Read more...

Blog – Love, sex and employment lawyers…The recent ousting of McDonald’s CEO for having a workplace relationship provides a useful chance to look at the issue of office romances and ask ourselves – what is appropriate for businesses nowadays? The US approach I worked in the City of London in the early noughties.  There was a lot of eye rolling amongst my employment law colleagues at our American-owned clients who had so-called ‘love contracts’. In essence these prohibited romantic relationships with colleagues – which presumably was in the McDonald’s contract.  What nonsense, we said to each other. Thinking about it now, most of us were (or had been) in relationships with people we met through work.  Like doctors and other busy working types who have little life outside of work, the only people young lawyers usually get the chance to meet are work colleagues.  If you can’t date them then what on earth are you going to do for romance? Large US-owned businesses have continued to pursue a trend of banning workplace relationships and this has now spread to other large organisations – although sometimes only at management levels.  Some bans are not a blanket policy across the entire business, but instead only prohibit relationships within departments or where there is a significant power imbalance by virtue of seniority. Decide what is reasonable for your organisation I expect you’ll agree that the more targeted such a ban is towards the precise areas of ER/legal risk that you and I have to deal with when an office relationship goes wrong, the (potentially) more reasonable such a ban may feel. It may feel over the top to prevent you from dating someone who works in another division or department of the company, but more reasonable if it were within the same team, and certainly very much more reasonable where one of you was involved in the line management of the other. What are the legal risks? In terms of what the risks are, there is of course the obvious legal risk of one party deciding (sooner or later) that the other party’s attention is unwanted.  This may be right from the outset, or after one or two dates, or after a much longer relationship.  Whatever the duration of the relationship, once it goes wrong and two individuals have to keep working together, the risk of a claim related to harassment (or similar) arises.  There is also the potential that you may have to end up moving or exiting one party. Even without thinking about the legal implications, there is of course the problem of all the disruption (gossip, rumours, flirting, tears and general distraction from one’s duties) that office relationships, good and bad, can cause.  Time spent fluttering your eyelashes or gazing longingly at a colleague for hours are hardly helping you crack on in a productive way with your work (so I’m told). From my perspective as an employment lawyer who mostly defends employers, my experience is that many sexual harassment claims could certainly be avoided if it were a clear rule that there was to be no fraternization in the workplace. It brings to mind the advice I had to give on a situation where a male CEO was systematically (and intentionally) sleeping his way through all of the several female directors on their Board.  You will be pleased to hear that it stopped when the CEO failed to ‘succeed’ with the HR Director. She spotted the pattern and called his behaviour out.   The point is, of course, that his sexual urges would hopefully have been restrained (or at least reduced) if he had been aware that he would be in breach of contract by such action.  Not a guaranteed outcome, but at least a strong deterrent. What’s the solution? My experienced view is that there is real benefit to employers in having – as standard – a contractual ban on any workplace romance where one party is involved in the line management of the other or where there is a significant power imbalance (however that might be measured in the organisation). The downside of such an approach is that some office romances and relationships would fail to materialise.  The advantages however are considerable. If you’d like to talk about putting such a policy in place in your organisation, or discuss anything else I’ve mentioned, do get in touch with me at .   Luke Menzies Director Email Luke or call 0117 325 0921  ... Read more...

October 2019 NewsletterIt’s October, and if the trick or treat of Brexit (depending on your point of view) is getting you down, we hope to help (rather than haunt) you with the warm bath of our latest newsletter.  Employee spirits should be raised (get it?) by the Government’s proposed law to ensure employers pass on tips in full, and by guidance on supporting staff who are affected by menopause symptoms at work.  We also update you on the EHRC’s new guidance on using NDAs in discrimination cases. In our case update this month we look at the role of HR teams and investigators when dealing with misconduct, the importance of managing the message of a massage, and whether vegetarians are protected by the law from discrimination. What Anne-Marie has been doing recently… I was delighted to be asked back by Lauren Chiren (of Women of a Certain Stage https://www.womenofacertainstage.com/), to join her in her ‘Menopause in Business’ workshops which took place as part of World Menopause Day. I was there to help with the employment law aspects of menopause.  It struck me that the conversation around menopause in the workplace has moved on massively since even last year’s events when Menzies Law first became involved.  There seems to be a greater willingness by employers to consider adjustments in the workplace to help their employees who might be struggling with symptoms. This is great news although there are still battles to be won. Menzies Law has been working closely with Lauren during 2019 so that we learn more and can advise our clients better on menopause-related issues.  A rewarding development of this is that Lauren is now recommending Menzies Law as her preferred legal partner to her clients.  We have created menopause policies for Lauren (which she includes as part of her ‘package’ to clients) and we are now starting to develop ‘guidance documents’ for employers on the menopause.  If you would like to find out more, do get in touch with me () or with Lauren (). I will be continuing to examine Menopause in Business in my next blog.  It is still the case that if you want to be a ‘stand out’ employer, making your business ‘meno-friendly’ would definitely be a great USP. Anne-Marie Boyle Partner Email Anne-Marie or call 0117 325 0924 Free training! Our friends at HR Champions have some fully-funded training opportunities available which we thought you may like to access.  Please find details to follow together with eligibility and contact information: HR Champions are pleased to offer FREE accredited qualifications for businesses in Worcestershire, West of England and Swindon/Wiltshire. The qualifications are co-funded by the ESFA and the European Social Fund, and allows us to work with Local Enterprise Partnerships in these areas to upskill SME’s in areas such as Leadership & Management, HR for Managers, Customer Service, Coaching and Sales. These courses are accredited by the ILM and City & Guilds, with an option to run it in-house for your organisation, or at an open venue for a mixture of organisations to attend. The great news is, if your organisation has less than 250 employees and a turnover of less than 50 million, then you’re most likely eligible to access this FREE training! To hear more about this offering, why not give Sophie O’Donoghue a call on 07775 425348, or alternatively email .   A roundup of this month’s news:   Government reforms (1):  Top Tip for Staff New Guidance – 1. ACAS Guidance: Menopause at work New Guidance – 2. EHRC Guidance on NDAs in Discrimination Cases Case update (1): Sex Discrimination – When is harassment sexual? Case update (2): Discrimination – Are Vegetarians Protected? Case update (3): Unfair Dismissal and Investigations  ... Read more...