Employers must consider staff on maternity leave for promotion

Female employees could sue their employer for sex discrimination if they fall behind a queue for promotion while on maternity leave.

The High Court decision in a case brought by the Equal Opportunities Commission (EOC) ruled that the government had failed to comply with its obligation to implement the 2002 Equal Treatment Amendment Directive properly.

The EOC challenged the government’s regulations, arguing that women would not enjoy the full protection against sexual harassment and pregnancy discrimination required by the original European directive, and that they could lose elements of existing maternity rights already established in UK case law. The harassment of women in the hotel and restaurant trade was a particular area of concern for the EOC.

The EOC also expressed concerns that the lack of clarity in the scope of the regulations could produce uncertainty about the extent of their legal rights and obligations for both employers and employees.

The ruling†means that employers must now count all periods of maternity leave as continuous service which is included in employees’ promotion potential, and fully consult all staff about changes made to their role while they are on maternity leave.

The court also ruled that women can take legal action against their employer if they are harassed by a customer and the employer fails to protect them.

Jenny Watson, chair of the EOC, said: “This decision is a welcome result for the thousands of vulnerable women who suffer pregnancy discrimination and sexual harassment every year. It should also come as good news for employers, who now have a clear understanding of their rights and responsibilities and won’t find themselves tied up in expensive and time consuming cases seeking clarification of regulations that are incompatible with European legislation. The EOC looks forward to working with the secretary of state and officials at the Department of Trade and Industry to find a suitable resolution.”

The judge ordered that the secretary of state for trade and industry has until midday on†16 March to inform the EOC and the court on how the government plans to remedy the situation.