Introduction
In this newsletter we looked at:
· Maternity law, on the last occasion we looked at mothers rights!
· Working in hot weather
Maternity Law
One of the reasons why I have concentrated on maternity rights (in the last issue) and maternity law in this newsletter is that in the UK we shamefully discriminate against pregnant women.
I have seen the real ugly side of things for example employers changing the rotas of receptionists ignoring completely that most of the receptionists are young mothers.
Employers dismiss expecting mothers regardless of what the law has to say on the matter.
Employers ignoring health and safety in relation to pregnant mothers.
Sports direct has been in the news and it is always reported, the story of the young mother who gave birth in a toilet. She continued to work so as not to find herself in the position whereby her pay was being deducted.
It is fair to say that the attitude of companies whether large or small is simply to try and get away with discriminating against pregnant mothers; even though we all come from a mother.
Maternity and pregnancy discrimination
Maternity and pregnancy discrimination are direct discrimination claims under s18 of the Equality Act 2010 (“the Act”). They are a specialist area of discrimination law.
A person must not treat a woman unfavourably during the protected period in relation to her pregnancy or any illness suffered by the woman because of her pregnancy.
A person must also not treat a woman unfavourably during the protected period because she is on compulsory maternity leave (the first two weeks after birth) or sheis exercising or seeking to exercise the rights to ordinary or additional maternity leave.
What is the Protected Period?
From the start of a pregnancy up to and including the end of the woman’s maternity leave.
No Need for a Comparator
It is the norm in discriminatory cases that the individual bringing the claim has to point to another individual as a comparator. Due to the unique position of pregnant women; the legislation has removed the need for a comparator.
Women can also be victimized and/ or harassed because of their pregnancy and are legally entitled to add this to any potential claim.
Women can therefore bring claims because they have been discriminated against during their pregnancy or their maternity. If they are unable to bring the claim under maternity and pregnancy discrimination law, then the law that relates to sex discrimination may help.
Do I have to prove length of service?
Due to the fact that pregnancy and maternity discrimination is a special form of discrimination claim. If a person is unfairly dismissed by their employer they will not have to prove any length of service as pregnancy related discrimination is an exception to the two year (length of service) rule.
Case examples
Rather than spending a lot of time describing the law. I will look very briefly at two cases.
The first case is Nixon v Ross Coates Solicitors. In this case at the office Christmas party Ms Nixon kissed the IT Manager Mr Wright. After the party Ms Nixon went on vacation. However she also fell ill and did not return to work until the end of January 2008.
The office staff caught on to the fact that she had fallen pregnant and there was a lot of gossip about who was the father of the child. The HR manager made a suggestion about the paternity of the baby. [i]Ms Nixon did not want to work in the same office as the HR Manager. The solicitors did not deal with the matter properly. Ms Nixon resigned and brought a claim under the old law for sex and pregnancy discrimination as well as constructive dismissal
At first instance the tribunal rejected Ms Nixon’s claims except the claim for constructive dismissal. However the tribunal felt that Ms Nixon had contributed to the situation and made a reduction of 90% in relation to her award for damages. Rightfully Ms Nixon appeal.
The Employment Appeal Tribunal overturned the decision. It was held that Ms Nixon had been discriminated against on the grounds of a sex and pregnancy. Ms Nixon had also been constructively dismissed. The tribunal at first instance had made an error when it deducted the compensation by 90%.
The second case is: The Commissioner of Police for the Metropolis v Katherine Keohane.
Ms Keohane was a dog handler and had two narcotics dogs. Her dual narcotics dog handling credentials meant that she could get overtime on regular basis and that she was in a good place for her career to take off.
Ms Keohane gave notice to her employers that she was expecting a baby. It was the second notice in a relatively short space of time (17 months) and it is fair to say that the police were not happy about it. The police decided that Ms Keohane could keep one of her dogs, Borg Warf. However Nunki Pippin, the second dog had to go because it had been inactive from duty for nine months as it was with Ms Keohane during her first pregnancy.
Ms Keohane complained to a tribunal about unfavourable treatment during her pregnancy contrary to s18 of the Equality Act. Ms Keohane issued a second application during her maternity, she claimed a further breach of s18 because her employers refused to give back Nunki Pippin.
Mr Justice Langstaff stated “the fact that the needs of the Metropolitan Police to keep Nunki Pippin operational may have been major, or a major reason for the decision to not allow Ms Keohane to keep him during her second pregnancy. However the employers subjected Ms Keohane to detriment because by having no second dog, Ms Keohane lost the opportunity for overtime and thus her career prospects had been damaged by Nunki Pippin’s removal. It is not difficult for anyone to see the detriment Ms Keohane had suffered because of her pregnancy.
We have assisted mothers or prospective mothers in difficult situations. If you are aware of a mother who is being discriminated against; please feel free to refer the mother to the firm.
WORKING IN HOT WEATHER
Introduction
Listed below are what we know we ought to do, but many of us simply forget if we are rushing around.
Things to be considered when working in hot weather:-
1. Access to cool water. This does mean remembering to take it with you when you are travelling long distances.
2. Ensure that you remain hydrated.
3. Working in doors, the air conditioning on to keep cool.
4. Alternatively, blinds should be down to create shade!!
5. No air condition, fans and windows open may help.
6. Treats such as a cold drink, ice cream etc., should not break the bank balance of your employer. If you employer is tight; alternate such treats with your colleagues. If this is not possible; look after yourself.
7. Dress code: This will vary from organisation to organisation; but you may want to ask your employer to consider relaxing the dress code if the weather is unbearable.
8. Comply with the health and safety regulations[ii].
9. For people working outside; I attach a link to an article from the Health and Safety Executive. It corroborates a lot of what has been said at points 1-7 above, (see the foot note).
10. Travelling to work in this weather, it would be prudent to walk with some water and use an umbrella as sun shade if it is deemed necessary.
11. Sun tan lotion for the skin; all skin types I assume as I am nursing a sun burn!
© Johanna Cargill
[i] This is when the employer has committed a fundamental breach of your contract of employment. You have every right to resign.
[ii] http://www.hse.gov.uk/temperature/outdoor.htm