The European Advocate General’s opinion in the case of Porras Guisado v Bankia SA ( Case-102/16)) – includes stating that pregnancy women are protected from Day 1 even if the employer is unaware of the pregnancy – is very welcome. It is shocking that 54,000 women (1 in 9) lose their jobs each year for pregnancy or maternity leave reasons.
Apart from women not knowing they are pregnant, I have seen so many cases where employees are too worried to tell their employer that they are pregnant, particularly in the early stages or when in their probationary period.
However much the woman tries to hide her pregnancy, the signs are often obvious e.g.
- where a woman who happily drank a glass (or bottle) of wine gives up alcohol altogether
- unusually regular doctor appointments
- unexpected nausea
- the bump: I have heard stories of the employer staring at a woman’s stomach
The woman may tell a good friend in utmost confidence but then the friend gossips and the news is out.
Why don’t women tell their employer they are pregnant? Because they fear losing their job or suffering other disadvantages and the evidence shows that they are right to fear dismissal or disadvantage because it is so common.
We have advised many employees in this situation. The employee is dismissed, the employer says they had no idea of her pregnancy even though she thinks they have guessed. Guessing is generally not enough to prove knowledge and the employee is left with no protection.
What if pregnancy related illness impacts on a woman’s performance, particularly in the first 3 months.When the employer becomes aware of the employees pregnancy, account should be taken of her pregnancy when assessing performance – but often it is not.
A woman should not be disadvantaged because of her pregnancy or maternity leave that is the law but it happens so often and women are powerless. It is not surprising that under 3% of women who suffer pregnancy/maternity discrimination sue their employer. It is tough enough combining pregnancy or childcare with working, let alone spending all the time, stress, costs entailed in bringing a claim.
As a footnote, I would advocate a prohibition on dismissing pregnant women from day 1 of their pregnancy until 3 months after the end of their maternity leave, unless there are exceptional circumstances, such as serious/gross misconduct or the business folding. Too many times employers dismiss women on maternity leave, or on return, disguising this as a genuine re-structuring or redundancy, when in fact the woman is replaced by her maternity locum.
Anything to tighten up the law to protect women who are pregnant or on maternity leave is, in my view, a very good thing as would be similar protection for men taking shared parental leave.