Employment lawyer comments on maternity disclosure survey.

Posted by Debra Gers on
According to a report today in The Times, women at job interviews are regularly asked whether they plan to start a family even though the question risks prompting a discrimination claim. A survey of more than 1,000 British employers shows that six in ten believe women should have to disclose whether they are pregnant at an interview, with many admitting that they do not want to hire those that are.

Debra Gers, an employment specialist at leading law firm Blake Morgan, said:

"Pregnant women and new mothers are afforded extensive legal protection in the UK but it seems that message has failed to filter down to many employers at ground level. There is widespread evidence that pregnant women and women returning from maternity leave experience some form of discrimination and this latest report from the Equality and Human Rights Commission (EHRC) further confirms this. The discrimination comes in spite of the Equality Act 2010 which prohibits discrimination, harassment and victimisation in relation to nine "protected characteristics" one of which is pregnancy and maternity. Women also have protection under the Employment Rights Act 1996 from being subjected to any detriment for a reason which relates to pregnancy, childbirth or maternity.

"According to the EHRC, employers are "living in the dark ages". Its survey of 1,106 senior decision makers revealed that 36 per cent of private sector employers thought that, during a recruitment process, it is reasonable to ask women about their future plans to have a family and 59 per cent thought that a woman should reveal whether she was pregnant. That's not all, 46 per cent of employers thought it reasonable to ask women if they have young children.

"The Equality Act 2010 protects job applicants as well as staff, and so recruitment needs to be carried out free from discrimination and bias (whether conscious or unconscious). Employers are vicariously liable for the acts of their employees during the course of their employment and to reduce the risk of liability for any discriminatory recruitment processes, employers should have in place an equal opportunities policy and ensure that all staff involved in recruitment have received training on equality and diversity. This will help to show that all reasonable steps have been taken to prevent discrimination occurring and to avoid inappropriate questions being asked of women about their plans to have children or asking questions about someone's pregnancy if they appear to be pregnant. If someone has just started a new job and are pregnant, employers should be careful not to take any action other than plan for the pregnancy and maternity leave. A dismissal which is for a reason connected with the pregnancy or childbirth will be automatically unfair as well as discrimination and there is no qualifying period of employment required for either of these claims and compensation is unlimited.  

"At a time when the gender pay gap is coming under intense scrutiny, it is clear that equality for mothers and pregnant women is also lagging behind the law. Now is the time for employers to ensure they clearly understand their obligations under the discrimination legislation in order to avoid falling foul of it and putting themselves at risk of financial and reputational damage.

"Whilst these recent figures from the EHRC are very disappointing it is important to remember that many employers genuinely want to support pregnant employees or those on maternity leave because they value and want to retain the talent and skills of women. To help achieve this the EHRC has launched its "Working Forward" initiative to help improve business practices."

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Debra is responsible for the firm’s public employment training programme.

Debra Gers
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