Wwyd? Pregnant employee. Don’t want to be sued but, ah!

[HavanaOhna]

I’m manager for a small company, there are about 8 employees so very small. We had a lovely young woman started in the new year who found out she was pregnant shortly after. Absolutely fine.

we’ve been very supportive as her pregnancy has been complicated, loads of additional scans, scares, admissions. We’ve always told her to take the time she needs for these, paid and to take extra time after them as they can be taxing. Sometimes she takes the whole day for one scan and that’s ok.

The issue is she’s now 7 months, seems incredibly poorly but won’t go on sick due to finances (has exhausted sick pay, this would be unpaid now). She’s WFH, at her request and our blessing, and is doing I’d say the bare minimum. Just scraping by work wise. Every time I see her on teams she looks gaunt, and exhausted, and has admitted that she’s tearful, not sleeping, and has had further pregnancy issues. These are all supported by documentation.

Then a few days ago she came into the office. First time in months. She could barely sit at her desk, she wasn’t doing much all day, up and down to the loo, extended lunch break. I really feel for her. We had a wellbeing meeting and she’s insisting she’s fine. I organised an occupational health session and she reiterated to them she’s fine, but you can see she’s on her knees.

I don’t really know what to do. She’s vital at work and although things are being done she’s working at I’d say 50% capacity. If this is mentioned, she promises she will sort it out so ends up working into the evening (which again we don’t want). A colleague became so frustrated the other day she pointedly asked her why she doesn’t go on maternity early and this wasn’t met well. Others are having to pick up the slack heavily, and some colleagues have started to avoid her completely work wise.

HR (no in house, outsourced) said not much we can do as she cannot be forced to take maternity leave early and if she says she’s not sick she’s not sick but I don’t know how we can do another 8 weeks going forward. I feel team morale is low, she is obviously unwell.

Good for you if you are 'happy to see your taxes' supporting women like the OP's new pregnant employee, in having half of her pregnancy off 'sick' and then a year off on maternity (and then possibly doing it again the following year.)
Many people are not.

Exactly.

This exactly. What the OP's employee is doing (and women like her who do what she's doing,) makes it harder for women in the workplace who are pregnant, and need time off before the baby is born - for appointments and maybe the odd day off, when they feel out of sorts. Because of what is happening with the OP's pregnant employee, some people will assume that all pregnant women will swing the lead. (Many do not of course...)

.

100% agree with this. I think it's wrong on every level to apply for a new job when you're pregnant, (and even worse - neglect to tell the employer you're pregnant, as some women seem to do,) or get pregnant very soon after (like within a few weeks, and let's face it there are very few 'accidental pregnancies...')

But because pregnancy/being pregnant is a protected characteristic, according to some, starting a new job pregnant and not telling your employer, or getting pregnant with a month or two of starting a new job is absolutely FINE. And the law says it is too.

It should not be fine IMO.

On threads like this before now, I have seen people saying 'what if a pregnant woman needs a job then?!' But if a woman doesn't have a job at all, and needs to support herself financially, then why is she getting pregnant? As I said, there are very few accidental pregnancies these days. And if she already HAS a job and just wants to leave and start a new job, then have the baby and the maternity leave first, and then look for a new job!

I know I will be flamed, but many comments on this thread prove that many people think like me.

!

Not sure how you think its dodgy. My later posts clearly linked to gov.uk guidance around the sub-2year dismissal element. You hand waved away my reasons, based on law, while providing sod all legal basis for her to stay.

As for court cases, judging by the financial hole the employee is in, I doubt very much she has the resources to do that anyway.

I wonder if there are some firms that might take this case on if they think the litigant will be able to recover costs, in the event of a win.

This would keep me up at night too.

Because it’s going to be near impossible for them to prove that pregnancy was not a factor in the decision to dismiss.

It costs nothing to bring a tribunal claim.

What are your credentials? You clearly aren’t an employment lawyer or a HR professional.

that is their choice and they will
miss out on some brilliant dynamic hard working reliable young women who may or may not get pregnant. Their loss.

Yes, but you can equally argue that if it were not so difficult to dismiss inactive, lazy and unreliable 'young' women then the brilliant, dynamic , hard working and reliable young women would not be disadvantaged by association.

Yes.

Baffling why there are people on a mum oriented chat site who wouldn't want to support pregnant women who are struggling.

it's quite rare, most pregnant women can continue to work normally but when they do need help - and no one expects this - society and businesses should help on whatever way they can.

the alternative is only wealthy trad wives should procreate and birth rate will decline further.

In this instance, on this thread, we are talking about a sick pregnant woman. NOt people in general - i am all for dismissing ineffective employees in normal circumstances - just not someone growing a human inside them.

on this thread, we are talking about taking on extra help or giving her some paid leave whilst she struggles a few more weeks to month 9.

Obviously if this company can't afford it then they shouldn't do it, but that's rhe CEO's call and OP should recommend paying for extra help or paid sick leave to the CEO and let them decide with full financial visibility.

You got that, from what I posted? I think you need to read it again.

I said very clearly that a risk assessment should be done and the recommendations implemented. In some roles that may been suspension on health grounds, in others significant adjustments and in some none at all. I also said a pregnant woman can ask for additional adjustments, but that these have to be reasonable- I really don’t think women ought to be able to demand whatever they want and automatically get it, no. I think employers should have to consider requested adjustments and if they are declining then they need to justify that (and employee can challenge if they disagree the refusal is justified).

I also said if a pregnant employee states they are fit for work and do not require further adjustments or to be off on either sick or maternity leave, and OH have assessed and said the same…. I think the employee is the author of their own difficulties… exactly what does OP do, in those circumstances? Her hands are rather tied, don’t you think? And, if the performance of that pregnant employee is not good enough and is impacting her colleagues/department/company sufficiently- but is not prepared to admit that there is a problem and she needs additional adjustments (e.g. reduced hours), her manager/hr/her employer cannot use being unfit/unwell due to pregnancy complications as mitigation. Because both the employee and OH say that she is fit for work at its current intensity and duration, despite any complications she may have with her pregnancy. It is the employee, in this case, who is at fault, if the reason for her performance is related to her pregnancy (which I would imagine is highly likely). But an employer cannot say it is that, if the employee and OH disagree.

Given that the employee is performing at 50pc capacity and likely some data gathering/KPI's, that's all that is required (not to mention the detriment to the team she is in).

The employee, while sick, is not going off sick, so she cant claim she is working below capacity because she is sick (due to pregnancy) as she has refused to go on sick leave.

Also, what are your credentials to try and dismiss mine? I made no claims either way - something you conveniently overlooked.

25 years as a senior Chartered HR professional (username is a hint).

The OP’s use of “I’d say” twice in the OP when describing how much work is getting done is a massive clue that there are no KPIs and while she describes discussions about it I’d bet a decent charity donation that none of it is documented. That sort of woolliness won’t fly at tribunal.

100% this. It is beyond disheartening to read so many posters seeming to agree with and endorse, or at least sympathise with, discriminatory employer practices against pregnant employees:

Attacking the OP's employee for having the audacity to take on a job when pregnant, or become pregnant shortly afterwards, and claiming that she had some kind of 'ethical' duty to notify the prospective employer beforehand (despite the fact that pregnant employees may need jobs and want to further their careers, for the same reasons as the rest of us, and there is absolutely no requirement for them to let their employers know);

Implying that employers are justified in avoiding appointments of qualified female staff on the basis that they are either pregnant or capable of being pregnant - and that this is somehow the fault of women like this employee (despite the fact that the whole of society - including men - benefit in the long term from the children that are born. They will be paying your pensions);

Suggesting that it is somehow the pregnant employee's fault if colleagues are over stretched or a small business finds it hard to manage the cost (despite the fact that it is up to an employer to have contingency plans for maternity as for all other employee issues and absences, and that many of the costs of maternity can be reclaimed by the employer);

Even suggesting summary dismissal of the pregnant employee, which besides being an extremely risky move likely leading to a tribunal case, is what I would regard as truly 'unethical'.

And all this despite most of the above being specifically unlawful. No wonder there is such glacially slow progress for women when it is so many women themselves that are holding it up by their frankly misogynistic attitudes.

and not forgetting the many, many months, a whole 9 - 10 if she goes the distance, of dedicated service this particular poster has provided to this particular micro business.

comparing a behemoth like the civil service with a company with less than 10 people is absolutely nuts!
Of course small businesses have to follow legal processes and support maternity rights (it sounds like the employee in the OP is too unwell to be working ft) but its also feasible that small businesses have far smaller contingency funds and reserves for unforseen circumstances.

It isn’t difficult to do that. In fact true performance management is one of the most black and white policies to follow. The issues are that managers aren’t well trained in enacting it with an evidenced based approach, and avoid difficult conversations.

The pregnant employee here is not at fault! Are you a man? She has been told (wrongly) that her options are no sick pay or to continue working. Personally I think it's disgusting that she isn't being given enough sick pay during what is obviously a difficult pregnancy. It is utterly unfair that as a woman having a child (versus a man having a child) she not only has to suffer through horrible health complications but also has to choose between going off sick with no pay or struggling on into work.

It genuinely boggles me that some people have such little humanity to think the pregnant woman is at fault here.

Absolutely astonishing the people on here who think women shouldn’t apply for any new job just in case they get pregnant. People can be trying to conceive for years, get pregnant then miscarry, you name it it can go wrong. But apparently women should put their entire lives on hold just in case it inconveniences an employer. Never mind if it takes years to have a baby - don’t go for promotions or new roles because you never know who on Mumsnet you might piss off! Don’t try to progress or better yourself, just stay where you are and when after 10 years of trying and multiple miscarriages you give up, then find your career stalled and your experience level way below your male peers, comfort yourself with the knowledge that you did the right thing by the taxpayer!

👏👏

So what should the employer do then ? Given that sick pay is subject to limitations and treated exactly the same as non pregnancy sick pay, what do you think other employees who exhaust their own sick pay and then have to take unpaid sick leave for any other problems that arise should be told ?

Agree. I think it needs pointing out here that an employer can’t use anything pregnancy related in a disciplinary for under performing. At the very least Occupational Health would have to certify that OP was fit to work and risk assessment would have to be revisited. The fact that the employer knows everything that’s happening is pregnancy related is the biggest factor here - where would be the plausible denial in court ?

It’s massively dodgy. The employer can’t use anything in a disciplinary procedure which could be linked to the pregnancy. So that rules out the exhaustion of the sick pay and the ongoing problems with performance if the employee can demonstrate that it’s pregnancy related. Which in this case it is - OP herself has admitted she knows that.

Management can absolutely instigate a disciplinary for under performance for a pregnant employee. But they have to be 100% sure that the issue is not related in any way to the pregnancy and that they have recorded any sickness or performance issues related to the pregnancy separately to anything unrelated. It’s likely a one way ticket to an employment tribunal.