A quarter of pregnant women have faced discrimination at work during the coronavirus...read more
A colleague of mine hasn’t received a salary increment due to her being on maternity leave. Our organisation decided that employees were only eligible if they received a highly effective in their performance appraisal and that an increment to employees would only happen every two years. The colleague therefore didn’t receive one in the first year like everybody else, missed the second year as she was on maternity leave as it was deemed she couldn’t be given an appraisal and she had been on maternity leave for some of the time, couldn’t have one again in the third year as it was one of the years the organisation were not giving out salary increments and so has to wait for the fourth year before being able to apply for an increment. Are employers able to hold back salary increments for their employees because of maternity leave? This would seem discriminatory in that if she had had her baby in a different year she could have been given a salary increment. Is this the case?
When a woman goes on maternity leave, a “maternity equality clause” is automatically read into your contract, which covers the calculation of any maternity-related pay you are entitled to under your contract, bonus payments during maternity leave, and pay increases following maternity leave.
Any pay increase your colleague received, or would have received had she not been on maternity leave, should have been taken into account in the calculation of her maternity-related pay.
When your colleague returned to work and started to receive her ordinary salary again (rather than statutory maternity pay or any maternity related pay), your employer should have given her the pay increase that she would have received had she not been on maternity leave. So, if everyone else in the organisation, or the people doing her job, all received pay rises whilst she was on maternity leave, your colleague should have been paid as a rate that takes account of the pay increase, not at her previous salary. Your employer could have looked at previous appraisals in order to make an informed decision as to whether, had she not been on maternity leave, your colleague would have received a “highly effective” in her performance appraisal, if so then she should have received the increase as if she had not been on maternity leave.
If your colleague did not receive pay and benefits because of her pregnancy or maternity leave, then she may have had a claim for unlawful discrimination related to this, rather than equal pay. However, such a claim would have had to have been brought within three months of the date of the act of discrimination, so within three months of her return to work.
From the enquiry it would appear as though this time period may have lapsed as you confirm that your colleague was not given an appraisal in the third year (the year after she was off on maternity leave) and so will have to wait until the fourth year.
This is a complex question and there are a number of other issues that could have an impact on the above advice that are not entirely clear from your enquiry. If you require more tailored advice please do confirm the date of your colleague’s return to work.