Do you need to inform someone on maternity leave of job vacancies and opportunities to be promoted?

It's important to keep in touch with an employee when they are on maternity leave. But if a school or college fails to tell the employee about a job vacancy, what are the risks? Is it an act of discrimination?

The employment tribunal explored this and other alleged acts of maternity discrimination and victimisation in the case of Ms K Kaur v The Urswick School. 

Facts

Ms Kaur, an art and photography teacher, went on maternity leave for most of the 2021/22 academic year. When the head of the art department resigned, another art teacher, Ms Rai, was appointed initially on a fixed term basis and then permanently as the new head of department. Ms Kaur was not told about the vacancy or given an opportunity to apply. 

During her maternity leave, Ms Kaur attended six Keeping In Touch (KIT) days where she helped prepare GCSE coursework for moderation. The students' work was in a disorganised state which Ms Kaur had to organise on the floor of the staff room as she didn't have a designated desk. There were no discussions with Ms Kaur about her wellbeing or her upcoming return to work. 

Ms Kaur's timetable for the 2022/23 academic year consisted of more KS3 groups than her peers. This meant that she had a larger number of groups and students to teach which she believed gave her more work and was a punishment for going on maternity leave. 

Ms Kaur emailed the headteacher about “possible discriminatory practices”. The headteacher responded by saying that he found her email “completely unacceptable”  and that “At best you're accusing me of a lack of integrity and at worst of sexual discrimination which if correct would amount to gross misconduct…please withdraw your unfounded allegations of discrimination or confirm you do not wish to do so in which case it will be referred to the chair of governors…”

When Ms Kaur didn't respond, the headteacher sent another message stating that discussions about the timetable would be postponed until he heard from her about the allegations.

Ms Kaur submitted a formal grievance where she made allegations of discrimination and victimisation. An external HR consultant heard the grievance and dismissed all of Ms Kaur's concerns. 

She brought claims of maternity discrimination and victimisation. 

Maternity discrimination 

The tribunal found that as Ms Kaur was not informed about the vacancy, she could not apply for it and this was a detriment. The school mistakenly assumed she wasn't interested because she hadn't expressed any interest in it before maternity leave or at any stage after she became aware of the upcoming vacancy. While the tribunal found the school's assumption reasonable, they noted it would have been better if they had checked with Ms Kaur. But, they found that the school had overlooked this due to the acute pressures of the Covid-19 pandemic, rather than because she was on maternity leave. 

The tribunal accepted that Ms Kaur was subjected to a detriment because of the way the school handled her KIT days, but they rejected her argument that the reason for the detrimental treatment was her maternity leave. Instead, the tribunal attributed it to Ms Rai's lack of understanding about KIT days and the pressure the department was under because of the Covid-19 pandemic. 

Ms Kaur claimed her post-maternity timetable resulted in an excessive workload. However, the tribunal accepted the school's evidence that more students didn't necessarily mean a heavier workload as the preparatory work could be reused and teaching KS3 required less teacher engagement than KS4 and KS5. Therefore, the tribunal found no detrimental treatment. 

Consequently, all claims of maternity discrimination failed. 

Victimisation

The tribunal determined that the headteacher's response to Ms Kaur's email, in which she raised concerns about “possible discriminatory practices” was unfavourable treatment. The response was detrimental in tone, labelled her email as “unacceptable” and pressured her to withdraw her allegations. The tribunal also found that the headteacher's follow-up response was essentially an ultimatum; withdraw the allegations or there would be no informal discussions. This detrimental treatment was due to Ms Kaur's protected act of alleging unlawful discrimination. 

The tribunal found that Ms Kaur also suffered a detriment due to the handling of her grievance and appeal. The teacher responsible for setting the timetable was not consulted, Ms Kaur received the grievance outcome report only days before the appeal hearing, and the grievance chair described her genuine concerns in derogatory language and suggested a stronger regard for the feelings of the head teacher. 

The victimisations claims, therefore, succeeded. 

What can schools and colleges learn from this? 

While the tribunal in this case held that failing to tell Ms Kaur about the vacancy was not discrimination, this is because of the specific facts of this case. In other circumstances, it could be discriminatory. 

When an employee is on maternity leave, it's good practice to maintain reasonable contact with her. Before she starts her leave, discuss and agree on the preferred level and method of contact. She should be kept in the loop about what is happening, receive workplace news, information about internal vacancies, social events, and training courses, without any pressure to take any action or attend. That is, unless she specifically asks not to receive this information. 

During maternity leave, an employee can work up to 10 Keeping in Touch Days (KIT days), without ending her maternity leave. It's entirely her choice whether she wants to use these days which can be used for training or any other work-related activities. Make sure that the employee is welcomed and that there is a plan in place for the employee while she is back at work. 

The real lesson from this case is that even if you are confident that allegations of discrimination aren't well founded, the way you react to them can amount to discrimination. Don't let your emotions influence your response, particularly if you feel you are being unfairly attacked. In fact, if the allegations are about you, you need to get someone else to investigate and make a decision about them. That way the temptation to say something intemperate to your accuser shouldn't arise.

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