Two years into the Coalition Government and consultations continue on changes to parental leave. Whilst some worry about the burden these changes may have on businesses, the recent case of Stone v Ramsey Healthcare UK Operations Ltd ET/1400762/11 shows that some employers are still failing to understand even the most basic principles of the existing legislation. What is particularly interesting about this case is that it is a rare example of a tribunal exercising its powers to make wider recommendations to a wayward employer.
What employers should know
Provided the proper notification has been given, all employees are entitled to maternity leave, regardless of their length of service. This includes part-time employees, but does not apply to workers or the self-employed.
For the first 2 weeks after childbirth, rising to 4 weeks for factory workers, maternity leave is a legal requirement and the mother must not work under any circumstances. It is a criminal offence for an employer to allow an employee to work during this period.
Ordinary Maternity Leave (OML) is a period of 26 weeks from childbirth, including the compulsory element above. This can be followed by a further 26-week period of Additional Maternity Leave (AML).
Throughout pregnancy and maternity leave, employees benefit from a “protected period” meaning that their employer must not treat them less favourably because of their pregnancy or maternity leave. Compensation through a tribunal for failure to respect this right is uncapped.
Stone v Ramsey Healthcare UK Operations Ltd ET/1400762/11
Preparations for maternity leave
Prior to going on maternity leave, Mrs Stone was a General Manager of a hospital run by Ramsey Healthcare. Full maternity cover was provided by Ms Terblanche, however no steps were taken to discuss keeping in touch arrangements.
Whilst there is no legal requirement to take steps to keep in touch, it is considered good practice and has the benefit of managing the expectations of all parties. Additionally, as was seen in this case, a tribunal may draw an adverse inference from a total failure to have such discussions.
Commencement of maternity leave
A pregnancy-related illness meant that rather than commencing maternity leave as planned on 20 February 2010, Mrs Stone’s leave automatically commenced on 5 February 2010. Along with premature birth, a pregnancy-related illness after the 4th week before EWC is an ‘automatic trigger’ for maternity leave. In the event of such illness, the commencement of maternity leave can only be delayed with the permission of the employee.
Communication during maternity Leave
Prior to going on maternity leave, Mrs Stone had indicated that she was happy to be copied into any relevant correspondence. However, she had not agreed to provide ongoing support, nor was she obliged to do so. Importantly, whilst an employee can choose to work after the initial 2 or 4 weeks, they cannot be forced to do this.
On 8 February 2010, Mrs Stone gave birth by caesarean. Two days later, Ms Terblanche emailed her with some work queries, an act which was a criminal offence as it occurred during the 2 weeks of compulsory leave. Mrs Stone received this email whilst in hospital on strong painkillers; although she did not respond immediately, feelings of guilt meant that she did reply 5 days later.
Ms Terblanche continued to contact Mrs Stone for assistance. Mrs Stone’s conscience was such that at first she responded to these emails as best she could. On one occasion, having responded to a complicated query, Mrs Stone received only a terse reply from her manager, Mrs White. By mid-March, Mrs Stone was feeling under-appreciated and decided to stop responding to these emails, as was her right.
Keeping in touch
It is common for employees on maternity leave to attend and be paid for ‘keeping in touch’, or ‘KIT’ days. It is possible to have 10 such days without bringing maternity leave to an end. Despite there being a company policy on this, such arrangements were not discussed with Mrs Stone.
When Mrs Stone herself raised the issue of KIT days, Mrs White suggested that she did not attend her workplace (as is normal), but instead attended regional meetings in London and an off-site meeting with Mrs White herself. This was contrary to company policy. In any event, due to child-care and breastfeeding, Mrs Stone could not make the 4-hour return trip to London.
In May 2010, Ms Terblanche raised a grievance against Mrs Stone, stating that on a visit to the workplace in March she had been “aggressive” and had criticised the company. Mrs White did not inform Mrs Stone of this until mid-July.
In mid-August, Mrs Stone wrote to Ramsey Healthcare complaining about her treatment and the fact that she had been excluded from a July pay review. This letter, which should have been treated as a grievance, was effectively ignored.
Upon return to work in January 2011, Mrs Stone tried do get Ms Terblanche’s grievance dismissed. Mrs White causally informed her that it would not be pursued and that it was based on ‘hearsay’.
In March 2011, Mrs Stone raised another grievance as to her treatment, which was this time investigated. However, Mrs Stone was not interviewed herself and when the grievance was not upheld, she was not given the option to appeal.
Mrs Stone resigned in April 2011.
The cost of getting it wrong
As many would expect, the Tribunal found in favour of Mrs Stone on the basis that she had been treated less favourably because of her pregnancy and maternity leave.
Mrs Stone had already found other employment, meaning that her compensation was limited to ‘injury to feelings’. The Tribunal awarded her £18,000 (the lower end of the top band) on the damning basis that Ramsey Healthcare was “wilfully blind to its obligations to pregnant employees and those on maternity leave”.
Whilst this may not appear a prohibitive figure for a company with an annual turnover of £350 million, the Tribunal also exercised a little-used power to issue recommendations to minimise the risk of such actions occurring again. These recommendations were:
- The appointment of external consultants within 6 months to provide management and HR training on statutory obligations and existing company policies regarding maternity leave, to be completed within a year; and
- The redrafting of the equal opportunities policy, which failed to include maternity and pregnancy as protected characteristics.
How to get it right
Whilst it is difficult to guarantee the actions of all employees, there are steps that an employer can take to minimise mistakes:
- Clearly mark maternity and pregnancy as protected characteristics in relevant company policies;
- Provide training to HR and managers on company policies and statutory requirements;
- Ensure managers and HR understand when a breach occurs and what actions can be taken to swiftly rectify the situation as far as possible;
- Include employees on maternity leave in all pay reviews, redundancy consultations and keep them up to date with important business developments, such as promotion opportunities;
- Fully discuss keeping in touch arrangements prior to the start of maternity leave and ensure that any work done is with the full prior consent of the employee.
- Ensure that maternity policies are non-contractual, as this will remove any obligation to consult employees in the event of changes or updates.
James Hall, is an Associate at Charles Russell LLP