Many women are treated unfairly — or even fired — after revealing the news of their pregnancy. As long as a pregnant woman is able to perform the major functions of her job, either not hiring her or firing her because she is pregnant is against the law. It’s against the law to dock her pay or demote her to a lesser position because of pregnancy. It’s also against the law to hold back benefits for pregnancy because a woman is not married. All are forms of pregnancy discrimination, and all are illegal.
Here is information on all aspects of maternity, paternity and adoption leave in Switzerland that you need to consider.
Recruitment and selection
Employers cannot discriminate in recruitment on pregnancy or maternity grounds. An employer cannot refuse to employ someone because they are pregnant or on maternity leave. All decisions should be based on whether a candidate has the skills to do the job.
A candidate does not have to tell the employer that they are pregnant when they apply for a job. However, if they do inform the employer of the pregnancy and are not offered the job as a result, this will be pregnancy discrimination. If the candidate does not tell the employer that they are pregnant during recruitment and are offered the job, they must not be dismissed or have the offer withdrawn when the employer finds out about the pregnancy.
All employees on maternity leave should have access to the same opportunities as staff who are at work. Therefore, an employer must communicate all vacancies to staff on maternity leave to allow them to consider applying.
Recruitment agencies
When you use an agency either to select and place workers or to supply temporary or contract workers to work within your business, your business could be liable for ‘end user’ claims of discrimination. Do not assume that a professional and credible agency will follow best practice. An agency will work in the way they believe to be the most efficient and this may involve making assumptions about the type of candidate they target, to reduce the time spent filling your position.
There may also be claims of “instructions to discriminate” levelled at employers who are careless in how they manage and brief suppliers.
Have a formal contract with those on your preferred supplier list to ensure they can provide evidence of non-discriminatory practice in recruitment and selection. Good agencies will be aware of their legal responsibilities and will understand your concerns.
Communication
Communication is key when managing a pregnant employee or one on maternity leave. From the moment a line manager is informed of the pregnancy to the time when she returns to work after maternity leave; communication should be regular and consistent. The tone should be positive and informative, to demonstrate that the organization is supportive of the employee and that the employee remains a valuable member of the team when on maternity leave.
Communication before leave will focus on the employee’s maternity entitlements, the impact of the pregnancy on work e.g., risk assessments, general support and the details of her expected maternity leave. Once she has started maternity leave, it is important to keep her informed about organizational and people changes, key messages as well as showing a general interest in her and her baby. A line manager who maintains effective communication with a pregnant woman or one on maternity leave is more likely to be given early indications of the expected period of leave and return date, as well as benefit from a fully motivated and engaged employee on her return to work.
Notification of pregnancy
There is no requirement for a pregnant employee or job applicant to inform her employer of the pregnancy until 15 weeks before the beginning of the week when the baby is due. If this is not possible, for example because the employee did not realize she was pregnant, she must tell you as soon as reasonably possible.
As an employer, you can encourage employees to notify you earlier, to allow you to plan around the maternity leave and conduct your legal obligations, such as Health and Safety Risk Assessments, but ultimately there is no obligation for them to do so until 15 weeks before the baby is due.
When an employee notifies you of her pregnancy, how you react and how you communicate throughout the pregnancy and maternity leave are crucial to ongoing good relationships. The only acceptable response when informed of a pregnancy is to congratulate the mother (and father where appropriate) and focus entirely on the good news, without immediate thought to the operational impact on the organization.
Some women will be concerned about how the pregnancy news will be viewed both by the organization and by her colleagues; however positive communication both now and throughout the pregnancy and leave will reassure her that she will not be treated differently because she is pregnant and will not be subject to detrimental treatment.
If an employer has heard of the pregnancy from another source, the mother’s protected period would begin, even if the mother has not notified the employer of the pregnancy herself.
Health and safety risk assessments
Good employers seek to protect employees from risk and try hard not to expose them to danger. Some workplaces and/or roles can be hazardous to pregnant women and/or their unborn baby. Ideally risk assessments should be conducted regularly before pregnancy where this is the case, to identify the risks of a particular role on women of childbearing age. However, when an employer is notified of a pregnancy, they should immediately consider if work is likely to present a particular risk to the mother or the baby.
This involves reviewing the risk for the individual’s specific work, identifying any changes that are necessary to protect her and her unborn baby’s health and making any necessary accommodations. Employees should be involved in this process and the assessment should be reviewed throughout the pregnancy to see if any new accommodations are necessary.
Risks could include (this list is not exhaustive):
- Lifting or carrying heavy loads
- Standing or sitting for extended periods
- Exposure to toxic substances
- Seating and/or working environments
- Driving and/or driving conditions
- Long working hours.
Once you have identified a risk you should remove the risk or remove the employee from the situation that exposes them to it. Solutions could include finding suitable alternative work, changing hours of work or, where this is not possible, paid suspension from work on health and safety grounds.
If you fail to conduct a risk assessment for a pregnant employee, where it is later seen to be necessary, it may constitute discrimination.
Time off for antenatal care
Pregnant workers are entitled to take reasonable paid time off to attend antenatal appointments and classes. However, they are not entitled to do this until they have notified you that they are pregnant. As an employer, you are entitled to request evidence of the appointments from the second appointment onwards.
Antenatal care may include relaxation or parent craft classes as well as medical examinations if a doctor recommends them.
The employer can suggest that appointments are made outside of working hours where possible, but pregnant women are not obligated to do so, and cannot be treated detrimentally if they choose not to.
Any detrimental treatment because of an employee asserting her right to attend antenatal appointments would be seen to be pregnancy and maternity discrimination.