Pregnancy discrimination – avoiding common pitfalls with your candidates and clients
3rd October, 2016
Last month saw reports of a significant increase in discrimination suffered by expectant and new mothers at work.
The House of Commons Women and Equalities Committee reported that the number of expectant and new mothers forced to leave their jobs has almost doubled to 54,000 since 2005.
Here we look at common questions asked by recruiters on the subject of pregnancy and discrimination in relation to candidates.
Do I tell a client that the candidate is pregnant?
Candidates are not required to disclose to you that they are pregnant and you should not ask. For any number of genuine reasons, it may be the case that you don’t go on to put the candidate forward for a specific role or don’t place them or even suggest a fixed term role rather than a permanent one.
If you have asked the candidate about pregnancy, future intentions, or their children and go on to take one of these legitimate steps, you become exposed to allegations of sex, pregnancy or maternity discrimination.
However, often candidates do share this information with you, leaving you unsure whether or not to disclose this to your client. Unless you have the candidate’s permission to disclose this information, they should not share this with the client – to do so may breach confidentiality obligations.
If you think that there are health and safety implications due to the role you are seeking to place the candidate in, you should explain this to the candidate and seek their approval to disclose the pregnancy and discuss the health and safety concerns with the client.
Can the client ask the candidate in the interview if they are pregnant or intend to have children?
If a candidate challenges you on whether or not the client was allowed to ask this during an interview, you can tell them that the interviewer is able to ask such questions. It is not unlawful but is risky.
Not appointing a candidate because you assume they might become pregnant because they are of childbearing age or have recently got married is sex discrimination.
Not appointing a candidate because they are pregnant is pregnancy and/or sex discrimination.
What do I need to do if a client doesn’t offer the job to a pregnant candidate?
When obtaining feedback from the client about why the candidate was unsuitable, you should ensure that an accurate record of this is retained.
There may be a number of appropriate reasons why the candidate was unsuitable for the role and explaining these to the candidate in detail should alleviate any concerns that pregnancy was the motivating factor.
Similarly, when deciding which candidates to put forward for the role, you should have clear and documented reasons for the decisions you make in the selection process.
These records should be retained for a minimum of six months following the decision being communicated to the candidate.
What should the candidate do if she discovers she is pregnant after she has received a job offer?
The candidate does not have to tell her new employer that she is pregnant before she accepts the offer. If she does and the job offer is withdrawn because she is pregnant, it would be pregnancy discrimination.
An employer cannot dismiss an employee for not disclosing her pregnancy during the interview or before accepting the role. To do so would also be pregnancy discrimination.
For maternity leave purposes, the latest a pregnant employee can inform her employer of her pregnancy is during the 15th week before the expected week of childbirth.
Further, the employee isn’t able to benefit from pregnancy-related rights such as paid time off for antenatal care, health and safety risk assessments and protection from pregnancy discrimination or dismissal if the employer is not made aware that she is pregnant.
Do I need to be involved after the placement has been made?
No. All issues relating to the candidate’s job, treatment, maternity leave and so on once she starts the role are issues to be dealt with between the candidate and client as the employee and the employer.
What practical steps can I take to protect my business?
It is worthwhile thinking about what you can do both to minimise the risk of an allegation of discrimination being made against your client and potentially your business as well as what protection you have in the event of such a claim.
Providing your client with interview do’s and don’ts which highlight the danger of raising questions about children during interviews should hopefully prevent the client getting in to awkward situations.
Even if it doesn’t and the candidate pursues a claim against both you and the client, it can be used in your defence to show that your business is not discriminatory and that you took reasonable steps to prevent the client acting in such a manner. Offering key clients or high risk clients training can also have the same effect.
Finally, to protect your business financially from a claim being made by a candidate, you will want to have an indemnity in your terms of business with the client ensuring that all costs and losses associated with their actions are recoverable by you against them.
* This article first appeared on the Recruiter.co.uk website
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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