It’s a misconception that pregnant employees have special legal protection throughout their pregnancy and that they can’t be dismissed or given disciplinary or performance-related warnings.
The truth is that an employer can treat a pregnant employee in exactly the same way as any other employee - except of course that pregnant employees need particular adjustments to protect their health and safety and the employer can’t use pregnancy-related illness as a trigger point for disciplinary action.
The protected period
This is the period starting at the point where the employee realises that she is pregnant and finishing at the end of the maternity leave or when the employee returns to work, whichever is earlier.
If the employee experiences unfavourable treatment and there is a connection between it and her pregnancy or pregnancy-related absence, this will count as discrimination.
Provided that an employer is not carrying out the performance management procedure because the employee is pregnant, or because she has taken - or been on - maternity leave, they should be safe from claims of discrimination.
Things to remember
However, there are several things that need to be taken into consideration before the performance management procedure begins:
Do the issues around the employee’s performance relate to the time before the pregnancy?
Has a performance management procedure, either formal or informal, begun?
Has the decline in the employee’s performance happened since the pregnancy began? Why is this, and is the decline in performance connected with the pregnancy?
Has a risk assessment been carried out to identify any risks related to the pregnancy and the health of the employee and her unborn child? Have measures to reduce risk been identified and put into practice?
If the employer has already begun a performance management procedure and there has been a subsequent announcement regarding pregnancy status, that announcement will not automatically stop the process.
However, certain aspects of the procedure may have to be changed in the light of the news. Targets which may have been reasonable or attainable prior to the announcement of the pregnancy may not now be so; if the risk assessment that needs to be carried out when the pregnancy is announced advises that adjustments need to be made to safeguard the health of the employee and child, this should be done.
It may be the case that targets set prior to the announcement have not been met due to pregnancy-related absences or medical appointments. The employer should revisit and revise the targets to ensure that this is taken into consideration.
If, since the announcement of the pregnancy, the employee’s performance has deteriorated, the reasons for this need to be examined and identified before the performance management procedure begins.
If the deterioration in performance has been caused by the employee’s pregnancy or related symptoms, the employer should monitor the situation but should not take any formal action.
The law recognises pregnancy as a unique condition, thereby removing the need for a male comparator in cases of discrimination. Employers can’t use the justification that they would have treated a male employee in exactly the same way had he been absent or suffered from an illness of comparable severity.
It may be that the decline in performance is unrelated to the pregnancy. If that’s the case (and it can be backed up with medical evidence) then the employer can begin a performance management process.
However, before that starts, it’s important to determine that the same treatment would be given to a non-pregnant employee if their work was found to be unsatisfactory. It would be a good idea to see if a suitable employee could be found to act as a comparator in the event that a claim is made.
When setting out time frames or deadlines for performance improvement, the employer should take care not to arrange them around the start of the employee’s maternity leave. Sufficient time should be given for improvement, even if this means that the maternity leave has to interrupt the timescales.
If there is any dissatisfaction with the employee’s performance, the employer should not hoard the evidence and wait until she gets back from maternity leave before beginning the performance review process. She could take the view that she is being discriminated against, particularly if she has been previously unaware that there was any problem with her work.
This is particularly relevant if the complaints pre-date the start of her maternity leave.
If the employer doesn’t raise those issues when the employee returns to work, she should be given time to settle back into her job. A new performance assessment should be carried out before the employer makes a decision on how to proceed.
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