When it comes to employment law, it’s typically advised that treating everybody the same is the best way to avoid claims.

However, in relation to sickness absence, this notion can actually lead employers down the wrong path and into dangerous territory.

In reality, not all sickness absence is equal in the eyes of the law, and employers must ensure the correct categorisation of absence or they may leave themselves exposed to legal risk.

This is an issue that has come to light recently in the Education sector, where reports have suggested that schools are discriminating against pregnant teachers by failing to differentiate between pregnancy-related sickness and ordinary sickness. This has then been used as a basis to deny promotion or as a trigger for disciplinary action.

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Pushed out

In one such case, a secondary school teacher reported that she had felt forced to resign after being issued with a warning from her employer during her pregnancy.

Prior to her maternity leave commencing, the teacher had needed to take six weeks off after developing maternal anaemia. This required hospitalisation for an iron transfusion. When she later took a day off sick a few months after returning to work, this prompted her employer to call her into meeting over her “really bad” sickness absence record. The teacher was understandably bewildered at being reprimanded given the nature of the absences and insisted that the school had made an error in including her pregnancy-related absence in their calculations.

A spokesperson for the campaign group Pregnant then Screwed has claimed its members have experienced similar issues.

So what does the law say?

Pregnancy and maternity is one of nine protected characteristics under the Equality Act (EqA) 2010. It is therefore unlawful for an employer to treat an employee unfavourably because she is pregnant or suffering from a pregnancy-related illness.

As a spokesperson for the Working Families charity explains, “when you fall pregnant, for the period of pregnancy and for the whole period of maternity leave, you are in what is known as ‘the protected period’”. In practical terms, this means that employers must not take pregnancy-related sickness into account when calculating attendance, and cannot use this information as a reason to:

  • Select an employee for redundancy;
  • Subject them to a performance management process or disciplinary action; or
  • Exclude them from receiving any kind of benefit.

Counting maternity absence as ordinary absence would amount to discrimination under section 18 of the EqA and employers who make this mistake may unwittingly land themselves in front of an Employment Tribunal.

Why the confusion?

Some, including the teacher in the case above, have speculated that the reason behind the alarming number of discrimination cases in schools is a lack of employment law awareness among senior leaders. In fact, the teacher in question explained that after informing the Head that she was resigning as a result of the school’s actions, he had expressed that he was “really sorry”. However, despite this, she said, an ex-colleague has since reported that the situation at the school remains the same.

Perhaps compounding the issue, the NEU teaching union has discovered an error in the Burgundy Book, which sets out the terms and conditions of school teachers in England and Wales.

Contrary to the legal position outlined in the EqA, Section 5 (11.2) of the book states:

"Absence on account of illness which is attributable to the pregnancy, including absence on account of miscarriage, and which occurs outside of the period of absence for maternity, shall be treated as ordinary absence on sick leave and shall be subject to the conditions normally governing such leave, provided it is covered by a doctor’s statement."

The Burgundy Book

This obviously contradicts the provisions of the EqA.

The discrepancy stems from the fact that the book predates the legislation; however, despite it being outdated and therefore likely contributing to the confusion, employers ultimately have a duty to stay up to date with and comply with all relevant laws.

What’s the solution?

In the education sector at least, the extent to which female employees are discriminated against when they become pregnant is not yet fully understood due to a lack of research or data pertaining to this particular demographic.

As such, campaigners from the Maternity Teacher/Paternity Teacher (MTPT) Project are now calling for an investigation into maternity discrimination in schools. This, they say, would be “a hugely powerful way for the Department of Education to better understand how this demographic is being affected by pregnancy-related prejudices or misinformation”. It is proposed that the investigation would look into potential mistreatment of teachers on maternity leave, including being forced to start their maternity leave early, unfair pay and conditions related to maternity sickness, and discriminatory comments or actions about pregnancy-related health.

According to the MTPT, “whilst anecdotal evidence may highlight unjust treatment for some, real research is required to understand whether issues like maternity sickness are being deliberately used to discriminate or disadvantage expectant mothers”.

In the meantime, just how widespread an issue this is within the Education sector, and whether or not such actions are deliberately perpetrated or due to conflicting information and confusion as to the laws, remains to be determined. What is clear, however, is that women need more support from schools and greater flexibility after becoming mothers to prevent them from being forced out of the profession.

Want to speak to a professional?

If you’re dealing with an issue related to any aspect of maternity or sickness absence, our qualified Employment Law specialists are on hand to provide expert guidance. We will help you to make smart decisions and achieve your preferred outcome without leaving you exposed to legal risk. For support, call 0345 226 8393 or request a free consultation using the button below.

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