Jonathan Leach, Director and Head of Dispute Resolution at Watson Ramsbottom examines a case where maternity leave communications could have been handled more sensitively.

An employee’s return to work following maternity leave is often a sensitive moment and needs very careful handling. The point was clearly made by one case in which a human resources manager chose to criticise a woman’s record of sickness absence on the very day that she returned to the office after having a baby (Hollinghurst v James Hall & Co Limited).

Whilst on maternity leave, the woman had been refused permission to work reduced hours on her return. On her first day back, she had a return to work meeting with the manager, who commented that she had the worst sickness record that he had seen. She had told the manager that he could not take account of her pregnancy-related absence, but other elements of the conversation were disputed. The woman was back in the office for only three days before going on sick leave.

She later launched Employment Tribunal (ET) proceedings claiming, amongst other things, that she had suffered discrimination and detrimental treatment due to her pregnancy. Her claim was, however, dismissed on the basis that the manager could rationally have viewed her sickness absence record as poor, leaving aside her pregnancy-related absence, and that his comment was not a reference to the latter.

In challenging that ruling, the woman argued that she reasonably believed that her treatment was unlawful and that the burden of proving otherwise should have been shifted onto the employer. In ruling on the case, the Employment Appeal Tribunal (EAT) acknowledged that, as a matter of good industrial relations, it may well have been insensitive for the manager to make such a critical comment on the woman’s first day back at work following maternity leave. The EAT also found that there was a lack of clarity in parts of the ET’s decision.

In dismissing the woman’s appeal, however, the EAT rejected her claim that the ET had misapplied the burden of proof. The ET was entitled to conclude on the evidence that there was no link between the manager’s comment and her pregnancy-related absence. The comment did not amount to an oral warning and the manager’s intention had been to give her guidance as to the tough approach that he would take to attendance issues in the future.

“It is important to have systems in place to ensure that the rights of women on maternity leave and those returning after the birth are not infringed,” says Jonathan Leach, Director and Head of Dispute Resolution at Watson Ramsbottom “Managers should be familiar with these and aware that issues such as sickness absence must be handled with sensitivity. We can advise you on your individual circumstances.”