Most employers know that if they reject a job applicant because they are pregnant or are going to on maternity leave, they are committing discrimination and are falling foul of the Equality Act.
But often employers and managers are unsure of whether applicants are obliged to reveal their pregnancy or what they can ask in interviews. Our Employment Law Advisers answer some frequently asked questions.
Is a job applicant legally obliged to disclose their pregnancy to you?
No. Female job applicants do not have a legal duty to reveal that they are pregnant.
If they do tell you or it’s obvious, it should not be taken into consideration when deciding whether they are right for the role. The role should be offered to the job applicant that has the best skills and experience, irrespectively of whether they are pregnant or are likely to become pregnant in the future.
How about when they get the job?
After they get the job, the employee must inform you of their pregnancy at least 15 weeks before the expected week of birth.
You can ask for proof that the employee is pregnant. If asked, the employee must submit a medical certificate, known as the MATB1 certificate, which is provided by midwives or doctors about 20 weeks before the due date. If the employee is claiming Statutory Maternity Pay, they must provide this certificate to prove their pregnancy.
It’s in the employees’ best interests to inform you as soon as possible to benefits from their rights, such as the right to attend natal appointments.
Can I tell a recruitment agency that I don’t want any applicants who are pregnant or on maternity leave?
No. This would be unlawful discrimination.
Can I ask a candidate if they are pregnant or are likely to fall pregnant soon in their interview?
Regardless of the reason behind the questions and, this line of questioning can amount to breaching the law as it may imply that that you make hiring decisions based on these factors.
So avoiding asking any questions relating to:
- whether they are married
- whether they have children
- if they are pregnant or plan on having children
If you want to probe into an applicant’s suitability for a position, you could ask them if there is anything that would interfere with regular attendance at work, their ability to work overtime or at short notice or to travel.
If you find out a job applicant is pregnant, can I withdraw a job offer?
No. Employers should not withdraw a job offer for a discriminatory reason. In this case, if you withdraw a job offer because the applicant is pregnant, this would be unlawful discrimination.
Remember that once the applicant has accepted an unconditional job offer, there is a legally binding contract of employment between the employer and the applicant. If you do not hire the applicant, they can take legal action against you for ‘breach of contract’. A conditional job offer can be withdrawn if the applicant does not fulfil all the conditions of the offer. The conditions could include satisfactory references, a criminal record check, a qualifications check or a health check. However, if the applicant does meet all the conditions and you decide to withdraw the offer, the applicant can take legal action against you for breach of contract.
If you have more questions, please contact your Employment Law Adviser who can guide you.
