Dear Peter
We have a woman on maternity leave who has raised a grievance about her treatment. She is unhappy because we recently told her she would not get a pay award as we only had 5 months of the year to assess her performance. She is also unhappy that we have not kept in touch with her over issues like removing her desk and not putting her into a team for bonus purposes. We don’t think we have done anything wrong. She wants three months’ pay to go away quietly.
Peter replies:
You are in difficulty especially with the first issue, which is likely to be seen as direct sex and maternity discrimination.
It will be very difficult to justify not giving her a pay rise if most people got a pay review. You might have got away with a standard pay rise if you could support an argument that there was not sufficient evidence to support an above average pay increase. Back in 1996, the European Court held that a woman on maternity leave should receive a pay rise awarded during her maternity leave, like anyone else. To deny an increase to a woman on maternity leave would discriminate against her as, had she not been pregnant, she would have received it, though they may not receive the full benefit of it until they return from work.
The position with bonuses is difficult, because the legal position is not clear. Employers pay bonuses for a wide variety of reasons, such as rewarding company or personal performance, encouraging loyalty and incentivising future work. The general position is that bonus or commission payments that are part of her salary, or regular earnings, or performance-related pay are likely to be regarded as remuneration, so are not payable during maternity leave.
A woman on maternity leave is entitled to be paid a bonus in respect of:
- The time before she went on maternity leave.
- The two weeks compulsory maternity leave.
- The period after she returns to work after maternity leave.
A bonus payment must be made at the time it would normally have been had the woman not been on maternity leave. Employers may reduce a bonus to reflect the period that a woman was absent on maternity leave, except as referred to above. Not putting her in a team for a team bonus however, may amount to discrimination if she would get a team bonus as part of a team.
You and your employee are bound by her contract of employment. This means that all policies and procedures apply as they would if she were not on maternity leave. This means that you should not be doing anything to undermine the fundamental duty of mutual trust and confidence that is an essential feature of the employment relationship. You do not have to invite her in to Keeping in Touch (KIT) days, but you should maintain some sort of contact, especially over important changes in the workplace. There may be a valid non-discriminatory reason for moving, or even removing her desk, but if you have not explained that to her then she is likely to think the worst, especially if it comes at the same time as unjustifiably withholding a general pay increase. Gone are the days when employers were not supposed to disturb women during maternity leave for fear of upsetting or harassing them. Of course, it needs to be done considerately and preferably after a discussion prior to going on leave about holidays and frequency/manner of communication.
You ought to apologise to her and see if a pay rise, effective from her return to work, will satisfy her. If that does not work, then a settlement agreement for 3 months money looks like a viable alternative to a Tribunal claim you are unlikely to win.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
