Understanding pregnancy and maternity discrimination

Employment analysis: Are employers doing enough to prevent pregnancy and maternity discrimination of their employees? Kiran Daurka, principal lawyer in the Slater & Gordon employment team, outlines the challenges in this area. Original news Investigation into pregnancy-related discrimination launched The Independent, 4 November 2013: The Equality and Human Rights Commission (EHRC) has been tasked by the government with carrying out a 1m investigation into discrimination against pregnant women and the impact on their families and the economy. What are the most common forms of pregnancy discrimination reported in the workplace? Termination during maternity leave This often takes the form of some sort of business restructure or redundancy. Although businesses can undergo structural changes, and employees can genuinely be made redundant during maternity leave, if the action of the business is linked to the mothers absence (or intended absence) then this would amount to discrimination. If a woman is made redundant during maternity leave, the employer would still have to go through the redundancy consultation procedure and fulfill the requirements of the redundancy process. Often employers fail to follow the correct procedure. One would have to ask questions of the reasons behind the actions of the businessis the job really no longer required? The mummy track One of the more subtle forms of pregnancy/maternity discrimination is where a woman returns from maternity leave she is placed on the mummy track. This term describes the situation where a woman returns to her original job but encounters a number of limitations. These can include changes such as: less access to clients greater administrative duties a less central role in business plan Being placed on the mummy track can greatly reduce a womans earning capacity, especially in sectors which have a bonus culture based on client-centered activities. Flexible working Despite increased social pressure surrounding flexible working policies, a large number of businesses are still failing to offer genuine practices that can realistically cater to the differing needs of parents.

Although a parent or carer of a child under the age of seventeen (18 if the child is disabled) can make a request to their employer for flexible working under the Employment Rights Act 1996 (ERA 1996), an employer has recourse to a wide number of grounds for refusing such requests. These are set out in ERA 1996, s 80G: the burden of additional costs detrimental effect on ability to meet customer demand inability to reorganise work among existing staff inability to recruit additional staff detrimental impact on quality detrimental impact on performance insufficiency of work during the periods the employee proposes to work planned structural changes Employers often do not think creatively when considering flexible working requests, and this leads to a large exodus of women from the workplace as they become unable to balance the needs to their family with work. What are the legal protections afforded to pregnant women and/or women returning to work from maternity leave? The Equality Act 2010 (EqA 2010) prevents employers from treating women on maternity leave unfavourably because of: pregnancy or pregnancy-related illness exercising or seeking to exercise, or having exercised or sought to exercise the right to ordinary or additional maternity leave Unlike other forms of discrimination claims, women in this situation dont have to compare themselves to another group of people. Where previous women on maternity leave were compared to those on long-term sickness leave, pregnancy is now recognised as a situation unique to women. Although the EqA 2010 provides protection, there is still a question over whether the protection is strong enough. In addition to this there are also real concerns over the understanding of the protections on offer by the women they were made to protect. Anecdotal evidence suggests that many women arent aware of their legal rights in respect of pregnancy, maternity leave and return to work. There are also further protections set out in the Maternity and Parental Leave Regulations 1999, SI 19/3312, which includes offering an employee on maternity leave suitable alternative employment if her role becomes redundant. This is entrenched by the use of confidentiality agreements by employers which results in a lack of coverage and/or discussion of such matters and therefore less awareness of legal rights.

What are the practical challenges in bringing a claim for pregnancy discrimination? The biggest challenge is the financial considerations. The introduction of tribunal fees has made it so to simply get to the hearing will cost 1,200. On top if this initial risk is the fact that, especially if you are only claiming for injured feelings, you could spend close to the value of the case on Tribunal fees. There is a remission system which may allow a whole or partial waiver to the fee, but a partners income is also taken into consideration when assessing this. Further, litigation is stressful. Women who are about to give birth, or have just done so, have enough on their plate without the demands of bringing and progressing a legal claim. In any employment case where there has been a dismissal, undertaking potentially costly legal proceedings at a time of financial vulnerability may discourage potential claimants. Claimants in such proceedings can be under additional pressures such as: finding a new jobwith the additional challenges of finding a new role that caters for any required flexibility around child care commitments; lack of confidence following a period of being away from work and being subjected to discrimination Although there is some provision for free legal advice in this area, these services are increasingly laden so the chance of receiving pro bono assistance is slim. After the issue of costs there is still the tribunal and the associated challengesfor example, trying to prove that the redundancy was not legitimate. In this situation the burden is on claimant to prove a primary case, which will shift to the other side to provide an adequate explanation as to why the claimant was treated as alleged failing which a tribunal is bound to make a finding of discrimination. What sanctions could employers face who are found to have discriminated against pregnant employees? Compensation in this area can take two forms: injury to feelingsthis is banded up to 30,000 depending on the severity of the discrimination loss of earningsthis is uncapped and can also include bonus claims (ie loss of bonus due to undue reduction in workloadmummy track) Naturally a claimant will have to mitigate losses and prove they have taken steps to secure further work. The fact that the majority of pregnancy discrimination cases settle has left a gap in Employment Tribunal case law. This absence of extensive case law is compounded by a lack of a detailed breakdown of unfair dismissal claims. This is what is most exciting about the governments review. Providing the EHRC with sufficient funding to look into discrimination claims should provide a clearer picture of how pregnancy discrimination is being approached across the UK. The research and analysis of the situation should provide an overview to allow employers and employees to see the broader picture.

Have recent government policies on workplace tribunal claims affected pregnancy discrimination? The most significant changes in government policy that affect pregnancy discrimination are the repeal of statutory questionnaires and the introduction of shared parental leave. Repeal of statutory questionnaires First introduced under the Sex Discrimination Act 1975, s 74, statutory questionnaires allowed to submit questions to your employer if you thought you were being discriminated against. These were intended to encourage the settlement of issues and could be used in tribunal hearings. Although employers are not obliged to respond to the questionnaires, a tribunal could draw adverse inferences from a failure to reply, or if the answers were viewed as evading the issues. However, as of April 2014 the statutory questionnaires are being repealed. This is a significant loss for claimants for which no good reasoning has been put forward by the government. Shared parental leave Set to be introduced in 2015, shared parental leave is a significant change to the workplace dynamic. Under the new systems mothers and fathers will have up to 52 weeks leave to share between them. It is yet unclear how it will work in practicepeople are already envisaging great difficulties in liaising with companies of both mother and father. Although the development is to be welcomed as it could reduce the burden on mothers (thus leading to a fall in pregnancy discrimination), it could alternatively subject fathers who utilise the provisions to similar discrimination experienced by some women under the current system of maternity leave. What should lawyers be advising employers/employees in light of this proposed review? Although an employer has no legal obligation to inform their employees of their rights, it would be refreshing if this became best practice. For employees it is a situation where it is crucial they understand their rights so they understand their entitlement and can challenge things when they go wrong. Kiran Daurka is a principal lawyer in the London employment law department. Her practice includes all aspects of contentious and non-contentious employment law issues. Kiran advises a wide range of clients and has negotiated many high-value severance packages for individuals. Kirans primary area of expertise is in advising on discrimination at work. Interviewed by Guy Skelton. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.