As Serena Williams continues her comeback from maternity leave at the U.S. Open, the debate about her treatment as a new mother returning to work rages on.
Last week, the French Open announced that the much-celebrated cat-suit worn by Serena on her return to Grand Slam action earlier this year will not be accepted in future tournaments. Crucially, besides making Serena look like a superhero, the suit was also specifically designed to protect her against blood clots that she has experienced since the birth of her daughter. The ban has led to significant criticism from those within and outside the sport who have labelled the act as sexist and discriminatory- a very high profile example of the need to consider the discriminatory impact of dress codes at work.
This only serves to broaden the discussion which has taken place over recent months about the treatment of new mothers in the sport. The WTA’s maternity leave policy has come under fire in the wake of Serena’s return due to its failure to protect women’s world ranking. In Serena Williams’ case, she held the No.1 ranking when she departed the competitive game for maternity leave in April 2017 and returned ranked No. 451 just 13 months later.
The policy has arguably made her return to the game even more difficult as her dramatic drop in the world rankings means that she is now more likely to be pitted against top-ranked opponents in the early rounds of tournaments.
Employers of all women, 23 time Grand Slam winning champions or not, should take note that a similar approach will not be accepted in the U.K. workplace. Anti-discrimination laws and statutory maternity leave provisions mean that U.K. employers must offer far greater protections than the WTA to women having a baby.
Firstly, on the point of dress code, employers should be aware that a policy could be considered either directly or indirectly discriminatory not only to pregnant women and new mothers, but also a host of other groups who are protected under the Equality Act 2010. Employers should pay particular attention to new guidance published by The Government Equalities Office earlier this year and ensure that any dress code policy is reviewed regularly to ensure that it continues to be fair and reflective of modern society. Further, employers should be prepared to implement adjustments to the policy where the needs of individuals require this.
Turning to the duties owed to women returning to the workplace, employers must be aware that women re-joining the workplace after a period of maternity leave are entitled to return on the same, or not less favourable terms, than they would have had they not been absent. In most cases, this will mean that women return to the job which they were doing before their maternity leave. In some instances, when a woman has taken additional maternity leave and it is not practicable for her to return to the job which she was doing before, the employer will be entitled to return her to a different job which is suitable and appropriate in the circumstances.
Crucially, however, unlike the tennis world, the terms of employment cannot be less favourable than those experienced pre-maternity leave. This may even mean that women are entitled to return to enhanced terms of employment, such as a pay rise, when this has been introduced to that level or grade in her absence.
The Employment Appeal Tribunal have been empathetic to new mothers and found that the duty on employers should extend to ensuring “that a returnee comes back to a work situation as near as possible to that she left” so as to avoid adding to the “burdens that will inevitably exist because she has a very young infant making demands upon her” (Blundell v Governing Body of St Andrew’s Catholic Primary School UKEAT/0329/06).
Sensible employers should therefore familiarise themselves with their duties towards women taking maternity leave, not only at the time of their return to work but from as early as the time a female employee announces her pregnancy as well as during her time off. Initially, employers should:
- Carry out a risk assessment to identify any risk to the employee’s health or that of her child. If there is a risk, employers should take steps to remove it or make alternative arrangements.
- Allow the employee paid time off to attend ante-natal appointments.
- Ensure that the employee is not treated unfairly or discriminated against either directly or indirectly.
Beyond this, employers are advised to take the time to consult with expectant and new mothers in the build up to, during and following maternity leave. Having a clear maternity leave policy in place will undoubtedly create greater transparency and provide structure to discussions. Establishing a meaningful dialogue throughout pregnancy should ensure that expectations are communicated on both sides which will allow for appropriate forward planning.
In the long run, employers are likely to reap the rewards from adopting a robust, inclusive maternity leave policy as female employees are likely to feel more valued in their role creating a relationship of trust and loyalty.
Whilst it’s too early to tell how Serena Williams’ return to tennis will turn out, with the right preparation and regular review, employers should feel confident that they can ensure the smooth management of maternity in the workplace.
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