Is this maternity discrimination or a grey area?

[conflictedgeek]

My organisation are creating some new teams, and are assigning managers for those teams. The obvious candidate is on maternity leave, and hasn't been considered as "it's too long to wait and we need a permanent person, not a temp, in that role now".

I'm concerned this may be discrimination. But I need to be sure to make my point. I know if the roles were open for applicants, it would be discrimination not to consider her application, but in this case, where roles are being assigned without that, does that still count?

I don't know if Obvious Candidate would want the role and she probably wouldn't realise that she would otherwise have been top of the list.

Sounds like fairly blatant discrimination to me! They are deliberately overlooking a good candidate because she on maternity leave. She should at least be invited for interview, or asked to apply.

There are no interviews. There will be no applications.

Oops, posted too soon.

Obviously it seems unfair, but is it actually clearly illegal and if so, is there some advice I can send a link to?

This is definitely discrimination - is there a union who could get involved?

No union, and to be honest - that sounds a bit of a thermonuclear war option IYSWIM? I'd rather point it out discreetly - I don't for a moment think that it's intentional discrimination, OC is well liked and valued.

Not sure how to put it in a non-accusatory way though!

Another question: if you advertise a role externally, and turn down applicants because they can't start for 7 months and you need them now, how is that different to an internal candidate in this case?
(Trying to think of points I'd need to defend).

I think it's a protected characteristic in the Equalities Act, sounds like they're on dodgy ground to me.

It is clearly unlawful discrimination to treat women less favourably because of their maternity leave, and denying your colleague access to a clear promotion opportunity and the ensuing career development and pay increase purely because she happens to be on maternity leave is treating her less favourably.

'Hiding' them by not advertising internally doesn't get the employer out of that obligation. Apart from anything else, she may be willing to return early in these circumstances ( although that can't be a condition of her appointment).

If they "like and value" this woman, why on earth would they want to conceal this opportunity and completely exclude her from consideration for such a very short term reason, without even discussing their concerns with her?

This is kinda how I felt when it happened to me (yes, massive dripfeed, sorry was trying not to be too identifying but realise it's not that identifying now). Which is why I wanted to have a sanity check from impartial outsiders.

Thanks very much everyone - I will raise this (and try to come up with an alternative that makes it easier to wait if we need to).

Flowery - isn't one of the problems with this kind of discrimination that people have an emotional investment in "we're nice people, we don't do nasty sexist things". I.e. think they're being kind, but actually (speaking from bitter experience) removing your autonomy?

Well, that "thinking they're being kind" thing does happen, you're right.

However in circumstances where as you say, this woman is an obvious candidate and their stated motivation for not considering her is because they don't want to wait, it's difficult to see that this could credibly be described as being kind. Do they really think the kindest thing to do is to not at least give her the option, not even tell her, and let her find out she's been overlooked either on the grapevine or when she comes back?

No. There had been a conversation about whether to speak to her or not, and that decision hasn't been made with her best interests at heart, it really hasn't.

its not, legally they have to keep the same job role, terms, hours, pay etc open for 9 months of maternity leave and can change a contract of she takes the additional 3 months but pay and hours worked remain the same. They don't have to offer her a promotion whether she is an obvious candidate or not.

They don't have to offer her a promotion Lally, but they can't deny her access to promotion opportunities or refuse to consider her, or offer it to someone else because of her maternity leave. As has been explained.

I don't see a problem with it. If the new teams are for efficiency and to improve company performance, promoting someone who then won't be doing the job for several months might not be practical. They want to improve the company performance now, not in 7 months time.

yes I thought that was what was meant in the post that mentions where the position was being advertised but admittedly x posted with the few above mine because of needy three week old trying to expose my boobs to the world

Thing is, Flowery is speaking from a perspective of an experienced HR expert. "Common sense" does not trump the law, my problem is going to be how to explain that tactfully without triggering defensiveness. (I don't think that'll be a massive problem, but people can get very funny if they think they're being called a bad person.)

I am really valuing all the responses here, it's helping me understand both the law and people's reasoning about the situation.

People do get defensive, but you can use the approach of "I'm sure you just weren't aware and it didn't occur to you that you'd need to give her the option of being considered, but I wouldn't want you to get caught out and find the company in hot water for what was a genuine mistake"

I think the approach I'd have gone in with is...

them: "it's too long to wait and we need a permanent person, not a temp, in that role now".
Me: 'erm, you know that would be discrimination, and she would have a case to take you to court for not giving her the opportunity to go for the job'
them 'oh, well we aren't interviewing anyway, we are just promoting'
me: 'ouch, so you don't have any issues with a massive payout - as long as that's planned for and money isn't the issue, then no worries'.