Have you ever read the employment law stories that have made the headlines and wondered, ‘is this for real?’ or ‘how did the employer get away with that?’ (or even, ‘could I get away with that too?’). We take a look at the stories making the news and explain how we think these employers are, or should be, applying employment law to the information reported.

Maternity Leave

Catriona Howie worked for luxury kitchen and design firm Holloways of Ludlow as a general manager. In July 2018 she went on maternity leave and it was agreed she would return to work the following summer.

Meantime it is reported, Holloways decided not to hold a traditional Christmas party in December 2018 but instead organised a trip to the pub. Staff were informed by word of mouth or text and £200 was put behind the bar.

Mrs Howie told the Employment Tribunal that she felt a conscious effort was being made to make her fell unwelcome in the business. Sarah Nelson, a director, said that it did not occur to her to invite Mrs Howie explaining, ‘it was not a proper party and nor was it a normal year’.

When Mrs Howie then began planning her return to work, she was told by Holloways that her role was no longer required.

The Employment Tribunal held that Mrs Howie had been unfairly dismissed and Holloways had discriminated against her by treating her unfavourably because she was exercising the right to ordinary or additional leave by not inviting her the staff Christmas drinks and withholding information from her about the financial position of the company and her likely redundancy.

Is it wrong not to invite everyone to Christmas drinks or to share financial information about the company?

You might be thinking where is the harm if someone misses out on a few drinks down the pub and that the financial position of a company is confidential to it. Of course, it might be preferable if everyone was at the pub; we all know from recent bitter experience that when we can’t get together socially it can have an impact on team morale. However, it’s only a few drinks. And as for the financial position of the company, this doesn’t concern anyone but the directors or owners.

Or, you might be thinking the fact that a woman is on maternity leave does not mean she should not know what’s going on in the business and should be included or, at the very least, given the choice.

The Law

Pregnancy and maternity is identified as a protected characteristic in the Equality Act 2010. It is unlawful for an employer to:

• Discriminate by treating a woman unfavourably from the beginning of pregnancy to the end of maternity leave (the ‘protected period’) because of her pregnancy or because of an illness she has suffered as a result of her pregnancy.

• Discriminate by treating a woman unfavourably because she is on compulsory maternity leave (the two weeks immediately following the baby’s birth) or because she is exercising, or seeking to exercise, the right to ordinary maternity leave (the first 26 weeks) or additional maternity leave (weeks 27-52).

Although Holloways might not have held a Christmas party in 2018 in the way that it normally would, there was, nevertheless, informal drinks in the pub it was subsidising. It may not have been its intention to exclude Mrs Howie but the fact is, she was not invited, by word of mouth or text, because no one thought of her. As the saying goes, out of sight, out of mind, and had she not been on maternity leave, she would not have been overlooked and would have been invited. That is unfavourable treatment because she exercised her right to be on maternity leave.

Similarly, Mrs Howie was treated unfavourably when, for the whole period of her maternity leave, she was excluded from information about the company (including its financial position) and her role that other staff would have had, which gave the impression that everything was fine and she would definitely be returning. The Tribunal held that it was “entirely understandable that should feel disadvantaged by this”.

Finally, an employer has an obligation to warn and consult an employee about their potential redundancy and exclusion from any discussions about the company’s financial position could amount to a failure to properly consult. Further information about redundancy consultations can be found here Redundancy during Coronavirus: Part 1 and here ‘Redundancy during Coronavirus: part 3

How do I avoid treating a woman on maternity leave unfavourably?

Rule #1: never forget to regularly communicate with any woman on maternity leave. Rule # 2: never forget to regularly communicate with any woman on maternity leave. It’s that important. You might be tempted to think that she doesn’t want to be bothered while on maternity leave. Don’t be.

During compulsory maternity leave, the only reason you should be getting in touch is to congratulate mother and baby. If you want to commence a redundancy process that might impact upon or involve her then you should seriously consider delaying the process until the compulsory maternity leave has come to an end. However, during her ordinary and maternity leave make sure she is kept up to date on what’s going on in the business whether that’s business updates or social events.

It’s a good idea to agree with her before she goes on maternity leave when and how you are going to keep in touch. For example, would she prefer email, text message, Teams calls and does she want to know about things as and when they come up or would she be happy for a weekly or monthly update?

It’s not always appropriate to share certain company information but if it has the potential to make her feel excluded because, for example, other members of staff are being informed, then do what you can to prevent this. Always make sure those at work are not receiving more information than she is and try to avoid any significant delay in sharing it with her.

As far as any redundancy process is concerned, its success lies largely in your preparation and that includes identifying how and when you are going to communicate with all employees whether they are on sick leave, holiday or maternity leave.

If you need any advice about how to go about keeping women on maternity leave up to date get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
Blackadders LLP
@EmpLawyerDonna