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Leadership webchat on pregnancy discrimination

Discussion in 'Headteachers' started by TES_Rosaline, Nov 24, 2015.

  1. TES_Rosaline

    TES_Rosaline Administrator Staff Member

    Good morning and welcome to the first in our series of webchats aimed at school leaders.

    In a few moments I will hand you over to Andrew, editor of FIS, who will be hosting this week's hour-long webchat.

    Andrew and this week's guest, leadership expert panel member Sally Robertson will be available for the next hour to answer your questions on pregnancy/maternity best practice and how to avoid discrimination.

    If you have any questions please submit them below. Don't worry if we run out of time, any unanswered questions will be responded to and posted on this thread later this week.

    I'll now hand you over to Andrew.

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  2. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Hello and welcome to this webchat on pregnancy discrimination. Joining me is Sally Robertson, a barrister at Cloisters Chambers. We will discuss some of the common problems that schools face, including some errors made when schools believe they are acting in the employee's best interests.
  3. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Thanks for joining us, Sally. To start things off, what should an employee do when she discovers that she is pregnant?
  4. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    That depends entirely on her and her wishes. However, the employer's legal duty to carry out a risk assessment is triggered only by a written notice that a woman is pregnant, has given birth within the past 6 months, or is breastfeeding. But it is enough to suspect that a woman is pregnant for her to be protected against pregnancy and maternity discrimination
  5. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    We have a question for you here from a contributor to the forums who says:

    I am currently pregnant and will be going on maternity leave from just after Easter. I have been told that because I won't be here until the end of the year and may not be back in September my exam classes need to be given to another teacher for stability. Although I completely understand the need to ensure consistency for students I feel as though I am being sidelined now that I have told them that I'm pregnant. Is this a fair decision for my head of department to make or should I be allowed to keep these groups until I go on leave?
  6. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Another for you...
    A member of staff has let me know, off the record, that she is planning to resign during her maternity leave. Where does the school stand legally on this?
  7. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    That's really difficult for you. Not everyone 'gets' pregnancy and
    That must be really difficult for you. Not everyone understands the strength of the protection against pregnancy and maternity discrimination. Both European and domestic law recognize that pregnant women and women on maternity leave or breastfeeding are at a vulnerable time. The law gives them extra protection to try and compensate for any disadvantages. The idea is to try and create a level playing field. This can mean having to treat pregnant women ‘better’ than others to avoid discrimination. It also means that if the pregnancy or maternity leave has a 'significant influence' on the reason for the treatment it's discrimination. It would be worth going to your union for advice and help. The point is you are being treated unfavourably and the reason is you won't be there to take your class because you'll be on maternity leave. That sounds like a breach of your s.18 Equality Act rights to me. The fact you appreciate the need for consistency doesn't make it better. The law does not permit one justify this type of discrimination.
  8. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    What happens if a member of staff has requested to come back to work after maternity leave on a part-time basis, but the school cannot support this request. Would the employee still have a right to appeal against the decision? What could the school do if this does happen?
  9. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    Nowhere (and if the terms and conditions of employment suggest something different, take advice – you cannot contract out of rights to statutory maternity leave or pay, nor to the protection against pregnancy and maternity discrimination). So, until or unless she actually resigns, just disregard that information. When she told you the date from which she wanted her ordinary maternity leave to start, you should have responded by notifying her of the date on which her additional maternity leave would end. You can expect her to return after additional maternity leave ends unless she tells you otherwise. People change their minds; circumstances may also change.
  10. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    What about people who feel they may be unfairly treated at work because they are pregnant who have returned from maternity leave, for example interrogated about their antenatal appointments, given too much work if they work part-time? Where would they stand and what implications would the school have if a headteacher, deputy, or SLT member is responsible?
  11. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    I wonder if you are thinking about a flexible working application under the Employment Rights Act 1996. An employer doesn’t have to offer an appeal against a decision on flexible working. But an appeal, like a first decision, should address the listed practical considerations. The flexible working regime is about structured decision-making: and if you get it wrong, the max compensation is 8 weeks pay, currently no more than £475 a week, i.e. a max of £3,800 at risk (as well as your time and legal fees).

    The real issue is likely to be whether that decision is indirect sex discrimination. It would be sensible to get advice. Because women are more likely to be responsible for child care then men, the requirement to work full-time will be very likely to put women in general and her in particular at a particular disadvantage. To stop a finding of discrimination, you have to show that working full-time is a proportionate means of achieving a legitimate aim. You cannot make assumptions or assertions. Your decision needs to be soundly evidence-based. What is your aim? If it can practicably be achieved by a policy with less of a discriminatory impact, the requirement to work full time is unlikely to be proportionate.
  12. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    It is best to deal with these questions separately.

    An employee has the right to paid time-off for ante-natal care during her working hours. You can only ask to see a certificate confirming that she is pregnant, or her appointment card or some other document showing the appointment has been made, for her second or later appointments. The first time is on trust. You cannot insist that she makes appointments outside working hours - the particular type of ante-natal care recommended may be available only at set times. If you unreasonably refuse payment, or time off, she can complain to an employment tribunal. She may also use this evidence as support for a sex or a pregnancy and maternity discrimination claim.

    Overwork applies as much to full-time as to part-time workers. Employment rights and protection against discrimination are not the only concerns: you may be risking a ‘stress at work’ personal injury claim. It is best to take seriously any expressions about difficulty in coping with too much work.

    As for who is responsible, the real question is whether or not the employer is vicariously liable for the impugned decision-making. Best to get specific advice.
  13. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    What can the school do when a pregnant member of staff has told the headteacher that they need to go on long-term sick leave?
  14. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    The obvious answer is to secure cover for her work, reassure her of the school's support and explore prognosis. Be wary about embarking on a capability procedure. If her absence is due to pregnancy-related illness, section 18(2)(b) of the Equality Act 2010 protects her from unfavourable treatment during and in respect of the period from conception to the end of statutory maternity leave. Even if the illness is not or not obviously pregnancy-related it would be best to get clear medical advice about any interaction between pregnancy and the illness, seek legal advice, and be cautious.
  15. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    A teacher who has returned to after maternity leave is often off sick, you don’t know if this is really a genuine case of repeated illness or childminding issues, what can the school do in this situation within legal limits?
  16. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    In your experience, are union reps informed enough on pregnancy discrimination to be able to provide useful advice to members of staff or when discussing the situation with the school?
  17. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    Have you discussed this with her? What does your policy on ‘frequent short sickness absences’ suggest you should do? In any event, you need to identify the real problem before you can address solutions. However, once she has returned from maternity leave, or has switched to shared parental leave, the ‘protected period’ ends. So if she is off sick, even if it is still pregnancy-related, you can treat her the same as you would treat any other employee. Go on the ACAS website and explore their guidance.

    Keep an open mind. Coping with a new baby and a return to work can be difficult. Everyone is different and what is causing the problem may be temporary. You won’t know unless you explore. If you start thinking about ‘legal limits’ before working with your employee to see what you both can do to help things, you risk losing a valuable worker to suspicion and supposition.
  18. AndrewFIS

    AndrewFIS Occasional commenter TES Leadership Expert

    Are there some real-life sample cases you can relate where schools have fallen foul of the law?
  19. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    Like any adviser, some are brilliant, others less so. But your union reps are an important resource, so use them. If they don't know an answer, they should be able to get more information from their union. Also check the ACAS website.
  20. Sally_Robertson

    Sally_Robertson New commenter TES Leadership Panel Expert

    One school started disciplinary action against a teacher when a smooth handover to her maternity cover was disrupted by pregnancy-related sickness absence and an early birth. A costly mistake.

    A real difficulty is in salami-slicing reasons. Is pregnancy a coincidence only, and not part of the reason for her treatment? Is it a properly separable factor, part of the setting but not having a significant influence on the reason for the treatment? Pointing to the disruption caused may explain motivation, but if the reason for the disruption is pregnancy, or if pregnancy has a significant influence on the reason, the resulting unfavourable treatment is discrimination.

    Another example is from a pre Equality Act case, where a teacher was held to have been discriminated against because being on maternity leave she had not been given an opportunity to express a preference for which class she would like to teach in the upcoming school year. She had lost something which she might reasonably have thought to have been of value to her: she had lost the chance of putting forward her choice, and thereby securing her first, or even second, preference class. However, if she hadn't been sent an invitation to express a preference because of a genuine administrative mistake, the reason for the treatment would not be pregnancy/maternity leave but the error.

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