Is there sufficient protection against pregnancy and maternity discrimination?

Posted by Lisa Wallis on
pregnancy and maternity discrimination
Generally yes, is the government's view according to its recently published response to the House of Commons Women and Equalities Committee report from August 2016 on pregnancy and maternity discrimination. Although the government says that discrimination in the workplace as a result of pregnancy or for taking maternity leave is "wholly unacceptable" it considers that the legal framework in place to protect pregnant women and new mothers from discrimination is strong. It accepts however that existing protections in relation to redundancy ought to be reviewed.   

The government's view will be disappointing for many. There is widespread evidence that pregnant women and women returning from maternity leave experience some form of discrimination. This is   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.

The Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission (EHRC) commissioned research to investigate the prevalence and nature of pregnancy and maternity discrimination in the workplace. Around 6,000 mothers and employers were interviewed. The report was published in March 2016 and it revealed widespread and potentially discriminatory treatment at work:

  • More than three quarters of pregnant women and new mothers experienced problems;
  • 11% were dismissed, made compulsorily redundant or were treated so poorly they left;
  • 2% of mothers were made redundant on their return from maternity leave;
  • 20% had experienced harassment / negative comments;
  • Less than 1% pursued an Employment Tribunal claim;
  • 25% of employers thought it should be reasonable to ask women about their child care plans and 70% though that women should declare at an interview if they were pregnant. 

Many employers however recognised that it is in their own interests to support pregnant mothers or those on maternity leave and they value and want to retain the talent and skills of women.

The Women and Equalities Committee's subsequent report revealed that the number of expectant and new mothers forced to leave their jobs has doubled since 2005. The report made 21 wide-ranging recommendations. These included strengthening the obligations on employers in relation to health and safety and risk assessments, increasing the 3 months' time limit for pregnancy and maternity Employment Tribunal claims to 6 months and providing women with earlier access to information about their maternity rights.

The majority of the Committee's recommendations have not been accepted by the government but one of the exceptions relates to the issue of protection in relation to pregnancy, maternity and redundancy. The Committee is of the view that there should be additional protection from redundancy for new and expectant mothers. It recommends that a system similar to that in Germany should be implemented whereby new and expectant mothers can only be made redundant in specified circumstances and that protection should apply throughout pregnancy, maternity leave and until 6 months after a return to work. It recommends that this change should be implemented within the next 2 years. The government's response does not specifically state what it will do, but that it will "consider further" and bring forward proposals to ensure that the protections in place for those who are pregnant or returning from maternity leave are sufficient.

The government's response refers to the fact that women who are on maternity leave already have priority in a redundancy situation over other employees, in that they are entitled to be offered alternative employment if there is any, ahead of other employees who are made redundant (the same applies to employees on adoption leave or shared parental leave). In addition, women have the right to return to the same job if they have been off work for 26 weeks or less (the period of ordinary maternity leave). 

However there is no protection against them being made redundant in the first place, so if no vacancies are available, this provision is of no use. While it will already be discrimination and automatically unfair dismissal to dismiss an employee for the sole or principal reason that they were pregnant or took maternity leave, as long as the employer can show that this was not the sole or principal reason, those employees are in the same position as everyone else. In the redundancy context therefore, employers need to be careful to use objective selection criteria and to ensure that any pregnancy-related absences (or lower scoring which can be linked to their absence) should not count against them because of the risks of an automatic unfair dismissal and discrimination.

It will be interesting to see in due course what exactly the government does, if anything, to implement the Committee's recommendation in relation to redundancy. Extending protection to six months after a return from maternity leave could be very significant. Often discrimination can appear in very subtle forms when a woman has returned from maternity leave – for example, the woman is given a lower redundancy criteria score for commitment, business development or work output because she has to leave at a particular time to pick up a child from nursery, or she has not been given the same quality of work when she returned from maternity leave. This could well have the effect of giving others in the pool higher scores, but is an effect of taking maternity leave. With the high cost of bringing an Employment Tribunal claim, many women could be put off. Interestingly, the government rejected the Committee's specific recommendation that there should be a substantial reduction in fees for discrimination cases and it will be publishing the conclusions of its review into Employment Tribunal fees "shortly".

The government recognises the need to provide pregnant women and new mothers with high quality information and is reviewing the various types of information that is needed and the sources for it. It will continue to work with the EHRC, Acas and other organisations representing employers and employees so that accurate and up to date information can be accessed easily and quickly.  

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Lisa provides support and advice to employers and employees in various industries on all aspects of employment law.

Lisa Wallis
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