Danielle Ayres, an Employment Partner at Primas Law, stands as a Leading Lawyer recognised in the 2023 Legal 500. With a dedication to supporting working parents like herself, she provides invaluable advice to individuals and businesses navigating pregnancy, maternity, and parental rights, along with issues concerning pay and flexible working arrangements.
Specialising in family-friendly rights, Danielle is one of the go-to solicitors in this area within the UK, working closely with employees, employers and specialist organisations like Pregnant Then Screwed to advocate for improved treatment of women in the workplace.
Q: Can you describe your experience with pregnancy-related cases in employment law?
A: I specialise in pregnancy and maternity discrimination cases and family-friendly rights and therefore deal with issues connected to the same on a daily basis. I have acted for individuals who have been treated appallingly during their pregnancies, with work being given to others, them being dismissed for poor performance without merit, and for those suffering with pregnancy-related illnesses such as hyperemesis. I even dealt with a case where a lady who worked in a call centre was not allowed to go to the toilet and had to be sick in a bin next to her desk, which was embarrassing, degrading and also impacted on her relationship with colleagues.
Q: What steps should HG sufferers take to protect themselves from discrimination?
A: Until you advise your employer of your pregnancy, they will not know that they have a duty to take any action to protect your health and safety. Whilst it is completely up to you when you tell your employer, if you are suffering, it may be advisable to tell your employer as soon as possible, so that they can help you.
If you find that you are being treated differently as a result, always keep a clear and detailed log of anything that happens to you that you feel is linked to your HG, its impact on your work or time off as a result of the same. Make sure dates, places, names, and any witnesses are also recorded. If you believe that you are being treated less favourably as a result, this could be pregnancy discrimination.
I would take a look at your employer’s grievance procedure. I would advise that if possible, you try to resolve the issue as informally as possible at first. This might be talking to HR, or your manager openly about your HG, and the way in which you are being treated and how this is making you feel. If informal discussions are not beneficial, you don’t feel comfortable doing this or do not get you anywhere, you may need to raise a formal grievance complaint so that your employer can investigate the issues you’re having.
Q: What are the rights regarding pregnancy-related sickness?
A: By law an employer must not discriminate against someone because of an illness related to their pregnancy, including related time off as a result of any such illness. It covers you during what we call the ‘protected period’ – from the point you become pregnant until your maternity leave ends. Even after this period of time, you may still be able to claim if the treatment you are encountering is in any way connected to your pregnancy/pregnancy-related illness or maternity. This applies to all employees and some self-employed, if the person has to do the work personally. Unfavourable treatment may include disciplining them for taking time off work, changing their job or giving it to someone else, pressurising them into work whilst sick or dismissing them.
I have covered below what to do if you believe you are being treated unfairly, however, if you are not able to resolve it with your employer, you may need to proceed with a claim, to the employment tribunals. The first step to doing so is to contact ACAS and start a process of ACAS Early Conciliation – this is a really simple form that can be filled out online. One key take-home point here is that ACAS Early Conciliation needs to be started within 3 months less one day of the last act of discrimination. This can be particularly difficult for women suffering from hyperemesis, given that it can affect some so badly that they are in no position to be bringing a claim. Time limits are, however, very important and should be met, where possible.
If you are off work because of a pregnancy-related illness within 4 weeks of your due date, your maternity leave should begin automatically. This only applies to absences as a result of a pregnancy-related illness, not other illnesses. You can agree to delay this with your employer. Your wellbeing should be taken into consideration – if you are actually ill and admitted to hospital for example, you could argue that you are sick and therefore maternity leave shouldn’t start. Also, if your employer has already arranged cover for the start of your maternity leave, they may be more amenable for you having that time off as sick so as not to use your maternity leave entitlement as early.
Q: For hyperemesis sufferers facing debilitating conditions early on, what advice do you have?
A: Communication is key in these situations. I speak to lots of women who are suffering with a range of pregnancy-related illnesses, obviously the most common one we hear about is hyperemesis. Many don’t want to tell their employer about their pregnancy when they are in the early stages and it is of course up to the individual when they do inform their employer, legally you need to tell your employer no later than the 15th week before your baby is due. However, until they know, they are not under any duty to treat such absence any differently from other sickness absence.
If you are suffering and are having to take time off work as a result, it may be best to be as open as possible with your employer in order that they understand that your illness and any absence associated with it is pregnancy related. They will be then under a duty to make adjustments in order to help. This may include (amongst others) starting work later, finishing work earlier to miss rush hour or so that working time doesn’t coincide when the individual is suffering (if at specific points of the day), extra breaks, or working from home.
Q: What advice would you give to past hyperemesis sufferers looking to try for another child?
A: 1. Communication – as above communication is key and now two pregnancies are the same, but if it is that a previous sufferer becomes pregnant, they may want to flag to their employer how they suffered last time and the things that helped. Regular check-ins with their manager might also help to see whether there are any allowances or adjustments that can be made, given the circumstances. As well as speaking to their employer, they may also want to speak to their colleagues. I know from experience that for those working in open plan offices for example certain smells can trigger sickness. It may therefore be necessary to notify colleagues of this so that they can be considerate to the individual.
2. Educating employers –Many people, employers included tend to think of hyperemesis simply as “morning sickness” and there are so many myths surrounding it – it only happens in the morning, it goes away after a certain point of the pregnancy… It may be that your employer has not dealt with a hyperemesis sufferer before. You may therefore want to provide them with useful links or websites (Pregnancy Sickness Support for example).
3. Don’t be afraid to ask for adjustments – If you are suffering from pregnancy-related illnesses then your employer is under a duty to consider your health and wellbeing and any adjustments that can be made to assist you. These will of course be different depending upon the industry you work in and what you do, and therefore any consideration should be specific and tailored to the individual.
Q: What rights do self-employed HG sufferers have?
A: Those who are self-employed do not have as many rights as employees in these situations, unfortunately. This is a conversation I have to have a lot and does not seem fair / right in my eyes. All employers have a legal duty to carry out a workplace risk assessment and assess the risks to anyone affected by their business, including self-employed contractors.
You should also carry out a risk assessment of the risks to your own health and safety and the risks to others, as a result of the work which you carry out. Once that assessment is done, action must be taken to remove or reduce any risks.
If you are self-employed, you do not have the same rights as employees to be offered suitable alternative work or to be suspended on full pay. You may be protected against discrimination, depending upon the way in which your work is set up i.e., through a limited company or directly between yourself and the end-user.
Contract workers are protected against pregnancy discrimination, and these types of workers are often self-employed but are classed as “workers” under the Equality Act – engaged under a contract to personally carry out a specific piece of work. In these scenarios, you are protected in the same way as employees and should not be subjected to unfavourable treatment as a result of a pregnancy-related illness and any associated absence(s).
This could include your contract being terminated, you not being given future work, or you being excluded from key meetings.
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