Irwin Mitchell | Employment Law Update | Myth busting: Employers can’t put a pregnant employee through a performance management procedure

Reality:

Pregnant employees sometimes misunderstand the protections the law affords them and believe that they have special protection throughout their pregnancy and cannot be dismissed or given disciplinary or performance related warnings. In fact, a pregnant employee should generally be treated in the same way as any other employee (subject to making any adjustments required to protect their health and safety or discounting any pregnancy-related illness from trigger points, etc).

The confusion may have arisen because of the language used in discrimination legislation which protects pregnant women and those who are on maternity leave during what is known as the “protected period”. This begins from the point at which she becomes aware she is pregnant and ends at the end of her maternity leave or when she returns to work if that is earlier.

During the protected period, a woman will be discriminated against if she is treated unfavourably because she is on maternity leave or intends to take maternity leave. The unfavourable treatment must be related to her pregnancy or absence to be protected. So, provided you are not performance-managing an employee because she is pregnant, you can go ahead and follow your normal process.

However, before you start your performance management procedure, you will need to consider the following:

Do concerns about the woman’s performance pre-date her pregnancy and has a formal or informal process started?
Has the woman’s performance deteriorated since her pregnancy? What is the reason for this this? Does this relate to her pregnancy (which would be because of her pregnancy)?
Have you undertaken a risk assessment and has this identified any risks that might be relevant? What measures have been taken to reduce these?

If you have already started a performance management procedure, you do not have to stop it simply because of the employee’s pregnancy. However, you may have to adjust the targets you set if, for example, your risk assessment indicates that the long working hours required to achieve these will put the employee’s health at risk. Similarly, if targets have not been met because the employee has had a number of pregnancy-related absences or medical appointments, you will need to revise the targets to take this into consideration.

If the performance of an otherwise adequate employee has deteriorated since she became pregnant, you will need to explore the reasons for this before starting a performance management process. If the employee’s pregnancy or related symptoms (such as extreme tiredness, morning sickness, etc) have caused the decline in her work, then you should monitor the situation but should not take any formal action. Pregnancy is considered under the law to be a special and unique condition and a woman does not have to compare her treatment with a man to establish pregnancy discrimination. This means that employers can not argue that they would have treated a man exactly the same if he had been absent or had suffered from illness.

If the reason for the decline in the employee’s performance is not related to her pregnancy (you may need to obtain medical evidence to determine this), then you can start a performance management process. Before you do so, you should make sure that a non-pregnant employee would be treated the same (or even more robustly) if their work is also considered to be unsatisfactory. Being able to point to a non-pregnant employee within your organisation who has also been put through a performance management process is helpful to show the process is not related to pregnancy.

You should not set unrealistic timeframes for improvement or impose deadlines that coincide with the expected date the woman intends to start maternity leave. A pregnant woman should be given adequate time to improve, even if that means that the process is put on pause during maternity leave.

If you are dissatisfied with the pregnant woman’s performance, you should not store up all of the evidence and wait until she returns to work to start the process. A woman who is previously unaware that her performance is anything other than satisfactory may assert that she is being discriminated against if, on returning to work, she is presented with a list of complaints that pre-date her maternity leave.

If you do not raise the issues at the time, you should give the employee time to settle back into her role after the leave and then assess her performance before deciding what to do.

Published: 7 August 2017

Employment Law Update - July 2017

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