The Problem
Metis HR was approached by an SEO company from the north east of England that was struggling managing pregnancy and performance in the workplace.
They had a manager was frequently late, not meeting her targets, and had a higher than usual rate of sickness absence. The company was unsure how to deal with this. They wanted to tackle the under performance as it was causing them significant problems but they knew enough to know they had to be careful because the manager was pregnant.
The HR team at Metis HR worked closely with the employer to establish a clear understanding of the problem. We gathered detailed information about the manager’s role, performance targets, and the impact of her actions on the team’s productivity. Metis HR helped the client understand that it was very important to carry out a fair and objective assessment of the problem, focusing on performance data and outcomes. During the conversation it was unclear whether a pregnant worker’s risk assessment had been carried out by the employer. Nor was it clear what, if any, conversations had taken place about the manager’s failure to meet her targets.
The Risks
The consultation with the client exposed a number of high risks that if not managed appropriately could cost the employer a great deal of money. The main risk is a claim for pregnancy related discriminatio. Usually, at the same time there’s a claim for sex discrimination. A pregnant employee doesn’t need any qualifying service to make a claim for pregnancy related discrimination to an Employment Tribunal.
The average award for a successful sex discrimination claim at an employment tribunal in 2022/23 was £37,607.
In a pregnancy discrimination claim the employee has the initial burden of proof. They must present facts that could lead a tribunal to conclude, in the absence of an adequate explanation from the employer, that they have been treated unfavorably due to their pregnancy or maternity leave. Once the employee establishes such facts, the burden of proof shifts to the employer to demonstrate that there was a non-discriminatory reason for the treatment.
This process is outlined in the Equality Act 2010, which imposes a two-stage test for discrimination claims.
When managing a pregnant employee who is not performing it’s crucial to be aware of the law. The employer needs to understand how to appropriately manage the risks to their business. The Equality Act 2010 provides a clear legal basis for managing this situation.
It is unlawful for an employer to discriminate against a woman by treating her unfavorably during the ‘protected period’.
This is the period of time from the point the employee becomes pregnant until either:
- their maternity leave ends
- they return to work
- they leave their job
or an illness she has suffered as a result of her pregnancy.
Advice
Our advice to the employer was
- urgently carry out a pregnant worker’s risk assessment
- make efforts to understand the reasons behind the under performance. Explore any reasonable adjustments or support that can be provided.
- maintain clear and documented communication throughout the process to ensure transparency and fairness.
- seek the advice of an occupational health professional. Answer any specific questions around whether absences could be reasonably concluded to be pregnancy related
- implement a performance improvement plan
- regularly monitor and review performance
What next?
Are you struggling to manage a complicated situation with a pregnant employee? If you’re ready to relieve your HR headaches, book your FREE HR troubleshooting call. We’ll listen to your HR challenges you’re currently facing and talk you through how we can support you to resolve them. Contact Alison today on 01706 565332 or email us at info@metishr.co.uk.
