Work out me on a capability 3 weeks before I'm due on maternity

[frostiemay]

When I found out I was pregnant I was off sick for a month. Literally vomiting none stop.
Anyway I took 4 weeks off and came back in. Since I got pregnant I've felt unwell. But I have a strong work ethic so felt as long as I was able to I could stay in work and 'do my best'.
My pregnancy risk assessment was very vague, no referral to occupation health.
No reasonable adjustments.
I made a plan of action to manage my workload and was doing well until suddenly a huge amount of work was given to me from nowhere. It wasn't manageable so when I questioned it I explained I'd do my best but would make no commitments that it would be done on time (thankfully documented).
I've struggled on with a high workload (manager has said it was above safe levels) and was looking forward to my maternity until my manager arranged for a meeting with me where I've been told my work wasn't meeting standards and I've been put on a competency framework.

There's a list of all the uncompleted work I haven't done and the expected time it should have been completed and my time scale. So for example (reports should be completed within 5 days this took 20 days to be completed).
No one's been put at risk as it's not that kind of work. It's just paperwork.

Anyway I explained that I'm not fully well (sciatica, exhaustion, nausea). I have a doctors note stating I need to work from home and my doctor was willing to sign me off completely which I didn't do as I felt well enough to work with reduced timetables.

Obviously there's been a misunderstanding. I thought it was understood I wasn't fully well and would be working to reduced timetables. This wasn't the case and my work has been judged as if I wasn't pregnant and I've been put on this capability framework.

Once I'm back from maternity leave I won't be pregnant and I've worked for this employer for years without issue and know once not unwell due to pregnancy I will be back on par but AIBU to think this is just really mean of them?

They could have said 'we noticed you're struggling with the work and so have reduced your work load to ensure all deadlines are met'.

Especially since they've acknowledge the workload was far too high for anyone never mind a pregnant worker.

I'm not worried about it as like I said I've never had an issue before pregnancy and know I'm able to meet all deadlines when not unwell.

When I return from maternity I'm straight on a performance plan. Nice!

I'm thinking I should spend my maternity looking for other jobs!

Being brutally honest here OP but you aren’t entitled to “reasonable adjustments” because you’re pregnant, nor would it be usual practice to refer you to OH just due to pregnancy!

That said, you’re entitled not to be treated “unfavourably”. If you have the same amount of work as your colleagues and you’re all expected to adhere to the same timescales then that isn’t unfavourable treatment. If you’re been given more work though, then obviously that is.

If you have genuine pregnancy related illness that impacts your work though then you can’t be treated negatively for that.

Yikes!
You certainly ARE entitled to reasonable adjustments when pregnant and experience a GP diagnosed pregnancy related illness!

Regularly doing things in 20 days that should take 5 is quit extreme and I don’t think many employers would see that as a reasonable adjustment Imo.

What were you expecting from the other risk assessment? It’s very basic if you are in an office role and largely amounts to things like don’t lift a heavy box or adjustments if you normal work around chemicals or radiation. It isn’t to look at workload.

I wasn't well enough to work and should have got signed off. I realise that now.
No one thanks you for trying your best.

Yikes!

No you are not. Reasonable adjustments apply to disability only, and still wouldn't stretch to underperformance issues. You might be eligible for health and safety adjustments due to pregnancy (something very different from reasonable adjustments) - but you got those in respect of being allowed to work from home as your doctor asked. Did your GP also ask for your workload to be reduced, and if so what reduction in hours did they suggest? There is no general right for anyone to underperform, pregnant or not so "my work has been judged as if I wasn't pregnant and I've been put on this capability framework" doesn't enter into it. If they ackowledge that your workoad was too large for anyone to manage, then push back and appeal the decision. But do it on those grounds, not the grounds that you needed special treatment.

Quite seperately, if you were not fit enough to do your job then you should have taken being signed off.

I thought it was understood I wasn't fully well and would be working to reduced timetables.

A reduced timetable (i.e. 25 hours per week, rather than 37) would be documented by HR surely? So how could there have been a misunderstanding?

She was ill with the pregnancy and could/should have made that far more clear. To suggest that the concomitant issues that come with some pregnancies are not allowed reasonable adjustments is ridiculous

Not true. Under the health and safety act, you are entitled to reduced duties if needed... And there need to be regular reviews of the pregnancy risk assessment to ensure that appropriate measures are in place to protect the health of OP.

If her work has not done that, they are in breach of HSE legislation as well as the Equality Act 2015.

OP. You need to note down what you understand from the meeting on email. You need to also note down that your work has recently been increased despite pregnancy-related I'll heath (you need to highlight the pregnancy aspect). You need to attach the risk assessment and that highlight that you have only had a verbal review of this sicne having pregnancy-related sickness absence recently, but that your understanding was from verbal conversations that HR and managent were aware that you needed a reduced workload as a medically recommended pregnancy accomodation.

Say you believe you may have been placed on capability in error, as the risk assessment has not been updated to reflect the health impacts your work is having on you whilst pregnant.

Request a meeting with a union rep present to review (and appeal) the latest sanction and to arrange for a full review of the pregnancy risk assessment as it currently is.

This all needs to be in writing.

Then call ACAS and your union and start job hunting.

In terms of your health at the moment, how many weeks are you? Have you passed the qualifying weeks for maternity pay assesment? If so, I would also talk to your GP about getting signed off until your mat leave starts.

The fit note suggested work from home. I work from home mostly anyway.
The GP suggested I get signed off completely but I said I'd try my best.

The workload was too high for anyone. It was literally the work of three people. So I'm on pretty safe grounds.

Infact since they've acknowledge that it's probably not wise of them to then criticise my work.

I was supposed to be working to reduce deadlines

Reasonable adjustments are for disability. The OP did have amendments to work - she worked from home - but those are something different and based on the pregnancy risk assessment (entirely different legisation). The employer made the changes asked for. If she was not going to work her hours and/or was not able to do her work due to pregnancy then it was her responsibility to ask for reduced hours (and pay) or get signed off sick. I did not suggest that pregnancy does not result in sickness for some people, and nor did I say that the employer couldn't or shouldn't respond to such challenges. In fact I clearly said they could. But she appears not to have asked for those. She says that she expected the employer to accept underperformance without any agreement that would be the case.

But reasonable adjustments are for disability only.

I think this is being a bit semantically pedantic. Though important for OP to note in her own correspondence with work/ HR.

HSE ensures accomodations for pregnancy (up to an including being fully paid for not working in some circumstances, where work would not be safe).

The Equality Act allows for reasonable adjustments, which are for disability only. But the act also references protections for pregnant women and women on maternity leave -- which also highlights appropriate accomodations.

I think it is clear the OP means accomodations - but has just used the term reasonable adjustments interchangeably in this instance.

There are a few posters here saying she has no rights to reduced workloads/ more more lenient deadlines due to pregnancy, and that is simply not true.

Then those are the grounds that you appeal it on - that the workload was too high for anyone and that the capability framework is therefore unfair because they have acknowledged that. Don't muddy the waters by suggesting that you didn't perfrom due to pregnancy, because the answer to that is what I have already said - if you weren't fit enough to do your job you should have been signed off.

I am not criticising you or your work - but arguing this on the wrong grounds doesn't help you and doesn't help other owmen in your position, whether or not they are pregnant. The defence is the amount of work, not your pregnancy.

Also, increasing her workload to an unmanageable amount is likely to be deliberate maternity discrimination. You cannot increase workload for someone who currently needs a reduced workload due to a protected characteristic as a way of managing them out of a job.

That is what OP needs her union rep to make as a point.

Yes it was increased massively not reduced as suggested by the GP.
The workload was too high. They have admitted that. It was too high for someone in good health. For someone experiencing illness it was even more unreasonable.

Under the Health and Safety at Work Act OP is entitled to alternative duties if those duties put OP at risk. It covers things like hazardous substances, heavy lifting, poor posture etc - it doesn’t give any right to reduced workload if isn’t a direct health and safety risk.

And under the Equality Act (which is 2010) OP is entitled not to be treated unfavourably. People often think that pregnancy is some kind of “get out of jail free card” which grants them absolute protection, but that simply isn’t the case.

As I said previously - if OP is struggling with work due to pregnancy related illness then her employer cannot treat her unfavourably because of that (which could include performance management if it’s directly related). But if OP has the same workload as her colleagues and isn’t struggling because of something pregnancy related then it’s not unlawful to start a capability process.

You were not struggling to work because you were sick

They gave you 3 people's work !

Start a grievance, they will soon backtrack

I am surprised they have gone down this route at all!

People often think that pregnancy is some kind of “get out of jail free card” which grants them absolute protection, but that simply isn’t the case.

To be fair, people often think the same thing about disability and that also isn't the case (I'm disabled). Reasonable adjustments (where possible) exist to level the playing field, not to put us in a better position than others. If the same problem applied to someone with a disability I would say the same thing - the issue is the workload, not the disability.

@MrsPinkCock was looking at something related the consumer rights act on another thread. Yes Equality Act is 2010.

The issue here is that OP has absolutely been treated unfairly because of pregnancy. Her workload has been increased, despite sickness and recommendations for reduced workloads due to that. And has now been put on a capability warning... Despite any difficulties being due to both pregnancy sickness and the sudden workload increase. They have not reviewed the pregnancy risk assessment, depsite OP's health declining. They have not made any accomodations. Under the HSE, accomodations can also include longer breaks, shorter hours, having a quiet place where she can take longer breaks/ naps if required. It is not just being removed from dangerous substances (though that is a clear common sense thing to do!).

OP has also been having conversations with her manager, and this seems out of the blue. She needs to document everything in writing from now on. As well as.understanding what has been discussed previously and what can be done going forward.

Equality Act 2015?! :-s

I think that's the crux of the matter really, if you're not well you shouldn't be at work.This is really unfortunate for you but I think I'd just concentrate on my pregnancy. If you're a union member you should ask their opinion.Few employers will take on cases involving a pregnant woman.

@AmITooOldToDoThis did you not read the comment immediately above your from me, where I said I had been looking at another thread that referenced the Consumer Rights Act 2015, and typed 2015 instead of 2010 for the Equality Act? Or have you never incorrectly transposed something on a forum? Especially whilst being dyslexic?

No, I didn’t. And no, I don’t believe I have.