I am sorry to read about the situation you are facing returning to work and the changes to...read more
I have been working as a pastry chef for my current employer since last summer. I recently suffered a miscarriage and had a week off work. I am currently pregnant again and told my employer early as I had hyperemesis gravidarum. The day after I told them I was hospitalised for the first time and was off work for several weeks. I had a meeting to discuss my return to work with my employer as I needed reduced hours as my days are long and there is a lot of lifting involved. My employer told me he could not accommodate any adjustments to my current role and would not tolerate me asking for help.He referred to another employee in another location, telling me that she had worked her entire pregnancy with no time off etc and the same was expected of me. I’m glad her pregnancy went well and she wasn’t sick. I wish I hadn’t been too. He provided me with a generic pregnancy risk assessment, telling me he would sort an occupational health risk assessment that would be personalised to me. He has failed to do this. I have slowly increased my working days. This week he called me into the office to inform me that he was unhappy with my work performance. I mentioned that it is hot which is making things harder. He told me he will need to monitor my performance and reduce my days if this continues as he isn’t paying me to do nothing. I don’t want to increase to full time and I feel that if a proper personalised risk assessment had been carried out then it would state in there that I perhaps need an extra sit down or my performance will be slower. I feel as though he wants me to either work as little as possible or take my maternity leave early so he doesn’t need to pay me.
I’m really sorry to read about everything you have been through at work with your employer. As you probably already know, your employer is not following the correct processes or procedures and is not treating you properly.
The adjustments he should have made to your role
All employers are under a duty to protect the health and safety of their employees and there are special duties which apply to expectant mothers in the workplace.
Firstly, looking at your job as a pastry chef, your employer should have assessed any risks that your specific job posed to you by carrying out a role and workplace specific risk assessment, which would have looked at your working arrangements, the lifting you are required to do and any specific risks your job itself posed to you and your unborn baby.
Depending on the results of that assessment he should have considered whether he could alter your working conditions or hours of work to avoid any significant risks which were identified. For example, your comments about lifting are relevant here as are the long working hours and hot working conditions as well as if you have to stand for long periods of time. It wasn’t right of your employer to say he would not tolerate you asking other people to lift things for you – this could have been an adjustment that he made for your pregnancy to address any risks the lifting posed to you.
If it was not possible to change the arrangements, he should have either offered you suitable alternative work on terms that are not “substantially less favourable” or if it that wasn’t possible, your employer should have suspended you on full pay if it wasn’t safe to work
Given the current heatwave he should have kept this under review as well and considered whether the changes in the weather and the heat meant a different approach should be taken. It sounds like you even raised this with him, but he dismissed it, which is not ok.
Secondly, looking at your personal health, as you are unfortunately suffering from hyperemesis gravidarium he should also have referred you to Occupational Health to ask whether you needed any further specific support. This would have taken into account your personal situation, so your working hours and the phased return and taking regular breaks.
Taking the two assessments together he should have considered whether he could action any of the proposed adjustments or removed the significant risk. If not, he should have considered suspending you on full pay on the grounds of health and safety.
From your comments it looks like he knew he was supposed to do this, but he didn’t then put it all in place. This could be a potential act of discrimination.
His comments regarding your performance
Treating an expectant mother unfavourably whilst she is pregnant because of a pregnancy-related illness is also unlawful pregnancy and maternity discrimination. If he was to try and dismiss you for this reason then any dismissal would be automatically unfair as well.
His comments about your performance, being slow and reducing your hours would appear to fall into this category. If the things he is referring to are all related to your pregnancy or your HG (which I presume they are) then any action he takes to reduce your hours or pay or to take performance action against you are likely to be discriminatory.
He shouldn’t be referring you to other pregnant employees and implying that you should react in the same way as them. As you know, every pregnancy is different and he needs to consider your individual situation here.
As you have said, it does look like he is trying to reduce your hours or encourage you to take your leave early so he doesn’t need to pay you.
I recommend you raise your concerns as a grievance. You should ask to speak to him and raise these points with him at a meeting – i.e. explain you are concerned that he hasn’t followed the correct processes and guidance for pregnant women, explain that the points he has raised about your performance are all connected to your pregnancy and HR and ask him to refer you urgently to occupational health for their assessment. I’d recommend you also highlight to him the extra issues the heat is causing – such as swelling, fatigue, heat risk.
Unfortunately, though, given the late stage of your pregnancy, by the time you see Occupational Health and they provide a report it may almost be time for you to take maternity leave so it may not have much benefit at this late stage.
As he doesn’t seem to be doing things properly, I’d recommend you also explain that you are concerned that your working conditions pose a significant risk to you and your baby and ask him to suspend you on full pay under the health and safety rules for pregnant women. I suspect given his approach to your pregnancy that he will, unfortunately, refuse to do this, but I would recommend you raise it with him to show that you have taken all steps to try and bring to his attention what he should be doing.
You could also send him a link to the HSE guide on pregnant women to explain why you think things should have been done differently – https://www.hse.gov.uk/
If he does not react well to this conversation or take the right next steps you could potentially look at bringing a claim for pregnancy and maternity discrimination. To do this you would first need to contact ACAS to engage in pre-claim conciliation. You’d then need to fill in a claim form with the tribunal. You have three months less a day from the last act of discrimination to bring a claim so you would also need to work out when this was to make sure you brought any claim in time.
I know you are keen to maximise the income you receive ahead of your maternity leave, but if the effects of work are becoming unbearable or you are worried about the effects on your health and the health of your unborn baby, you could also considering starting your maternity leave early or taking sick leave as a precautionary measure.
Good luck with your conversations with him and I hope all goes well with the rest of your pregnancy and the arrival of your little one in a few weeks time.
*Charlotte Farrell and Tabytha Cunningham are Associate Solicitors at Paris Smith in Southampton. The photo above is not of the person mentioned in this article.