A recent report by the Equality and Human Rights Commission (EHRC) has found that 77 percent of pregnant women and new mothers experience discrimination at work.
In addition, 11 percent of those returning to work reported that they were either dismissed; made compulsorily redundant, where others in the workplace were not; or were treated so poorly that they felt forced to leave their jobs, although interestingly this did vary depending on pay levels. 13 percent of mothers earning less than £20,000 per annum felt forced to leave their job compared to only 7 percent of those earning more than £40,000 per annum.
Jo Swinson commissioned the research in 2013 when she was Employment Relations Minister. She is now chair of campaign group Maternity Action and commented “[t]he research uncovers very high rates of pregnancy discrimination in the workplace compared with 2005, which should set alarm bells ringing for government and employers alike”. Research completed by the Equal Opportunities Commission in 2005 found that almost half of pregnant women experienced some form of disadvantage at work relating to pregnancy or maternity leave. Additionally, 10 percent of mothers reported that their employer discouraged them from attending antenatal appointments, despite mothers having a right to time off for these appointments.
Notwithstanding the incidents of discrimination reported by women, 83 percent of employers in England felt it is in the best interests of their organisation to support pregnant women and those on maternity leave. Employers should not underestimate the benefit to their business of supporting employees through maternity leave. 58 percent of employers felt that it was in their interests to support pregnant women and those on maternity leave because it increased staff retention and 20 percent felt it improved morale. Caroline Waters, deputy chair of ECHR has highlighted this: “for businesses to thrive, they need to harness the talents, skills and experience of all employees”.
Perhaps unsurprisingly there was a significant discrepancy between small and large employers. 72 percent of small employers felt women should declare upfront at recruitment if they are pregnant compared to only 37 percent of large employers and 26 percent of small employers thought it is reasonable to ask women at recruitment about their plans to have children, compared to 5 percent of large employers. Job applicants also receive protection under the Equality Act 2010 and it is therefore important that employers do not discriminate against them. Employers should not ask any questions about job applicants’ children or plans to have children and should keep clear records of interview questions and responses, along with evidence of the selection process to ensure they can show an unsuccessful candidate was not discriminated against.
One in five mothers said they had experienced harassment or negative comments in the workplace related to pregnancy or flexible working. All employees with 26 weeks continuous service can now make a request for flexible working, however it is a particularly important right for new mothers. Over two thirds of mothers submitted a flexible working request and around three in four of these mothers reported that their flexible working request was approved. 51 percent who had their flexible working request approved said they felt it resulted in negative consequences. It is important that flexible working requests are dealt with in accordance with the statutory procedure and employees do not suffer any negative consequences following a flexible working request, as this may result in a sex discrimination claim and possibly a constructive dismissal claim.
Employees or job applicants who bring claims for discrimination to the Employment Tribunal are entitled to receive an award for injury to feelings and an award reflecting their loss. Unlike unfair dismissal awards, discrimination awards are not subject to any statutory cap.
Employers are advised to put in place, and regularly review, their equal opportunities and maternity policies to ensure that they reflect good practice and are applied consistently throughout their business. Managers should be trained on the policies and ensure their consistent application. It is helpful for employers to discuss the process of taking maternity leave and employee entitlements as soon as possible to help reassure the employee and ensure that they feel supported.
The EHRC has several helpful guides on their website for both employees and employers, including a “how to make sure your employees make a successful return from maternity leave” guide and a “13 steps to best practice” guide which provide practical suggestions to ensure employees feel supported. These steps include assigning a maternity buddy (someone who has previously been on maternity leave to assist the employee) and assessing whether any further training and support is required on return to work. In addition, 89 percent of large employers use “keeping in touch” (KIT) days to make the employee’s return to work easier. The Government has published a detailed response to the recommendations made by the EHRC’s in their report and has accepted the majority of these recommendations, which is likely to result in amended guidance particularly from the Health & Safety Executive which employers may find useful.
