It was announced this month that Andy Murray would be splitting from his coach Amelie Mauresmo. The split was reported as amicable and the reason given by Murray was that it “just wasn’t working”. Both Murray and Mauresmo are new parents and Murray has made it clear that he expects his coach to be available to train with him for at least 25 weeks of the year. Mauresmo said in her press statement that “dedicating enough time, along with the travel, has been a challenge for me”. As neither Murray’s needs nor the need for a coach has changed, and he has flourished under Mauresmo’s coaching, should he have considered relaxing the requirement to train for 25 weeks of the year? With this in mind, our two partners this month debate whether employers should be able to impose requirements on new mothers that they are less able to comply with than other workers.
The results of March’s head-to-head, which can be found here and at the bottom of the page, show a remarkable level of support for the principle of gender pay gap reporting but very little faith that this is anything other than a first step in the right direction.
Paul Mander, Head of Employment
For years, women have fought for equal rights. In addition, women tend to work on the basis that, when they are back at work following maternity leave, nothing has changed and they are able to perform the role in the same way as they were prior to having a child. Where an employee feels that they are unable to perform the same role or has child care issues they can, and often do, request flexible working arrangements. Legislation provides ample protection for women who are treated differently from men through direct discrimination, indirect discrimination and harassment laws, and there is no specific protection in respect of discrimination connected with having obligations as a mother. Where an employer imposes a requirement that a new mother is less able to comply with than other workers, then a potential indirect sex discrimination claim could arise. The legislation itself limits this as such an act can be justified if an employer can show it is a proportionate means of achieving a legitimate aim.
It cannot be the case that an employer is under any obligation to change an employee’s role on return from maternity leave simply because that employee is less able to perform the role having had a child. Any such protection would arguably have to be offered to fathers and due to the number of parents in the workforce this could become unmanageable. There would also be issues with determining whether or not such protection should be offered to parents of children of any age. If this were to be put in place, should similar protection be offered to staff that have other changes in circumstances that affect their ability to perform their role? How would staff without children feel and could issues arise in the workplace if they became disgruntled? To be clear, there is no suggestion that an employer should be discriminating against new mothers. However, there will no doubt be circumstances where an employer has grounds to impose requirements or simply wants an employee to perform the role that she was performing prior to maternity leave. This cannot amount to discrimination.
It cannot be unreasonable for Andy Murray to require his coach to be available to train with him for 25 weeks of the year. This is a key function and ensures that he is in peak condition. As a professional tennis player, he wants to be accompanied to tournaments for his coach to see first hand how he is performing. This is a situation where, if there is any argument that there is indirect discrimination, it is justified on the basis that the 25 week requirment is a proportionate means of achieving a legitimate aim. In order for women to maintain that they are able to be mothers whilst working, it must follow that they can be asked to meet the needs of an employer. If those needs are justified employers can impose requirements that new mothers may be potentially less able to comply with provided that they can justify the reason for doing so.
It has long been accepted that employers cannot discriminate against women on the grounds of pregnancy or childbirth, but the protection only lasts from the period between the employer knowing that they are pregnant and the end of their maternity leave. After this, they are left with the same protections as everyone else, with the only additional right being in respect of breastfeeding if they continue to do so after their return to work.
This is, however, not enough. Recent reports have indicated that between 30,000 and 60,000 women are forced to leave work following their maternity leave every year. The reasons why are of course varied, and some may choose not to return in order to spend time with their children, but it is thought that these are the minority. There are countless studies showing that women often feel that they are discriminated against on their return whether that is from being put on the “mummy track” or from attitudes that they will not be as interested in their career, or will be first out of the door to pick their children up. While that may be true for some women (although if so I am not sure I know them!), it is no more true than any other stereotype based on prejudice.
Unfortunately however the protection from maternity and pregnancy discrimination is limited, and this can make it hard to argue that any requirements (whether extensive travel as part of the ATP tennis tour with Andy Murray, or trips to business conferences in America) are unfair, or unreasonable. This does not mean that employers can impose any requirement on their employees. Those which may be harder for new mothers to comply with must be justified, and not justified by any other kind of discrimination (such as a new mother will be less interested in her career). This is because it is not lawful to impose a condition on a woman after a return to work which she will find more difficult to fulfil than other employees, unless the condition can be justified. To do so could easily amount to indirect sex discrimination. In addition, all employees (not just new mothers) with 26 weeks’ service have a right to request flexible working although it is frequently women returning from maternity leave who exercise this right.
Although an employer can say ‘no’ to a request for flexible working, it can be difficult to do so, and all employers must be very careful before adopting this approach. As part of the consideration, the employer must consider the needs of the woman and whether the work can be organised in a different way that would still allow the business to meet its goals, or whether there is another solution which may enable the working pattern suggested to be accommodated. If proper, objective consideration is not given, then the requirement cannot and should not be imposed.