Due to policies dictated by our US parent company, we require pregnant employees to provide a written medical release assuring the company that they do not have a “high-risk” pregnancy and that it is safe for the employee to perform her normal job duties. We insist that this medical release is given even in situations where employees do not request any type of adjustments or disclose that there are any medical issues related to their pregnancy. This has always been done without objection. Recently rumours spread that Ms. X was pregnant, the UK Vice-President of the Company confronted her and demanded to know if she was pregnant. She refused to confirm that she was in fact pregnant. Nevertheless, he told her that she was required to provide medical clearance, immediately removed from her from the work schedule until she could provide the note. She is talking about making a Tribunal Claim.
Peter replies:
One of the basic premises behind the parts of the Equality Act is that that employers cannot assume that pregnant employees will be unable to work or will not be dedicated to their jobs once they become pregnant or have children. Even in an environment where the physical demands are much greater than normal, employers cannot simply assume that pregnant employees cannot perform their job functions. Dismissal for reasons connected with pregnancy are automatically unfair as is other detrimental treatment and your boss’s actions in taking her out of work are undoubtedly a detriment. As an employee’s pregnancy is not a factor which an employer can lawfully be influenced by, the woman is not obliged to tell you about it. Many women fear notifying their employer early on because they fear that the employer may discriminate against them. Every year there are around 1,500 potential tribunal cases involving pregnancy maternity-related discrimination. Anti-discrimination law prohibits employers from discriminating against pregnant employees. In order to obtain the paid leave benefits, an employee must notify her employer that she is pregnant at least 15 weeks before the baby is due.
The HSE advises that while employees do not have to inform their employer that they are pregnant, it is important (for them and the child’s health & safety) to notify the employer in writing as early as possible. Until the employer receives a written notification, they are not required to take any further action, such as altering working conditions or hours of work. The HSE also say that:
“your workplace risk assessment should already consider any risks to female employees of childbearing age and, in particular, risks to new and expectant mothers (for example, from working conditions, or the use of physical, chemical or biological agents). Any risks identified must be included and managed as part of the general workplace risk assessment.”
While there is actually no legal requirement to conduct a specific, separate risk assessment for new and expectant mothers, employers are expected to conduct a risk assessment for pregnant workers. This does not have to be specific to an individual, but can be. Once notified, employers who choose to conduct a specific risk assessment may do so and include obtaining medical information. This may help you decide if any additional action needs to be taken. However, until notified, a UK employer is not entitled to obtain medical information regarding the pregnancy.
Your senior manager sought to compel the employee to disclose her pregnancy well before the time that would be required under UK law and then assumed that the employee could not safely perform her job simply because she is pregnant. You should get her back to work, apologise for the ‘misunderstanding’ and explain that you remain concerned about her health, safety and welfare so will be seeking to protect her, but in a more sensitive manner, in line with British law and practice. Following foreign policies which are based on their understanding of their employment law/practice is always risky and ought to be checked with a local employment law/HR professional.
The guidance provided in this article is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes. Before you take any action, make sure that you know what you are doing, or call us for specific advice.
