26th May 2022

Pregnancy and maternity discrimination – where are we now?

Almost a decade ago

In 2013, the Coalition Government announced a new £1 million programme of independent research to examine the extent of pregnancy and maternity discrimination in the UK and its effect on both families and the economy. It had been 10 years since the last full study, which highlighted that half of all pregnant women in the UK experienced some form of disadvantage at work simply for being pregnant or taking maternity leave, with 30,000 women saying they had been forced out of their jobs. In addition, over 9,000 pregnancy discrimination claims had been brought in the Employment Tribunals since 2007.

That research was carried out by the Equality and Human Rights Commission (ECHR). Paradoxically, while the majority of employers reported that it was in their interests to support pregnant women and those on maternity leave and they agreed that pregnancy and maternity statutory rights are reasonable and easy to implement, the research found:

  • 1 in 5 employees said they had experienced harassment or negative comments relating to pregnancy or flexible working from their employer and/or colleagues.
  • 1 in 9 employees were either dismissed, made compulsorily redundant (while others in the workplace were not) or treated so badly they felt that had to leave their jobs.
  • 1 in 10 employees were discouraged from attending antenatal appointments.

The ECHR also asked YouGov to conduct a survey to understand manager’s attitudes around pregnant employees and found that:

  • 44% believe an employee should work for an organisation for at least 1 year before deciding to have children.
  • 40% claim to have seen at least 1 pregnant employee in their workplace take advantage of pregnancy.
  • 51% agree that there is sometimes resentment amongst employees towards employees who are pregnant or on maternity leave.

Consequently, the Women and Equalities Select Committee called on the Government to take urgent action to tackle pregnancy and maternity discrimination and in January 2019, the Government launched a consultation seeking views on extending legal protection against redundancy for pregnant employees and those on maternity leave. In July 2019, the Government confirmed that legal protections would be extended and the resulting Pregnancy and Maternity (Redundancy Protection) Bill proposed that an employee could not be made redundant from the start of pregnancy until 6 months after returning to work (unless the employers closing the business or ceasing to work in that area).

The bill had its first reading in the House of Commons in July 2020. A second reading is yet to be confirmed in the House of Commons.

Present Day

Meantime, the number of Employment Tribunal claims have continued to rise. In 2020-2021, pregnancy and maternity discrimination was the fifth most common discrimination claim. Common themes emerging from the cases include:

  • Failing to thoroughly consider and rule out options to help keep a pregnant employee in their role.
  • Placing too great a reliance on a small risk that the pregnant employee would become unwell whilst performing their duties and failing to consider alterations to the employee’s working conditions or other alternatives to dismissal.
  • Sham redundancies including deliberately making alternatives roles unattractive to deter the employee from returning from maternity leave.
  • Offensive comments made during pregnancy about the fact the employee is pregnancy.

Taking action

Whilst we can wait for the law to extend protection, employers can act now to avoid pregnancy and maternity discrimination – even if only driven by a desire to protect themselves against the risks such discrimination poses to their businesses in terms of recruitment, retention and reputation, as well as some of the largest compensation awards made in the Employment Tribunals claims.

It is clear from survey results that the attitude of managers and colleagues in the workplace must change. Effecting change won’t always be easy; biases will be at play (both conscious and unconscious) and people can be resistant to change. However, improving employer practice begins with an official company policy that affirms equal treatment for employees who are pregnant and on maternity leave and ensuring that managers act in accordance with that policy. Providing regular training can help in that regard.

Thereafter, employers can promote family-friendly workplaces, effective management and open communication (including a means by which anyone who feels they have experienced discrimination can report it without fear of reprisal)  together with offering improved access to information and advice to all employees in order to help them understand their rights and obligations.

If you need any assistance with understanding pregnancy and maternity rights or how to avoid discrimination in your workplace contact Blackadders’ Employment Team working in Glasgow, Edinburgh, Perth, Dundee and Aberdeen.

Donna Reynolds employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
@EmpLawyerDonna

www.blackadders.co.uk

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