Pregnancy And Maternity Discrimination

Year Published: 2016

As MPs demand urgent government action to tackle a ‘shocking and unacceptable’ rise in pregnancy and maternity discrimination in the workplace, I consider the issues facing both employees and employers when managing the combination of motherhood and working life. Is more legislation the only answer?

My twin gave birth to her first baby seven months ago. My sister has, for the most part, enjoyed her pregnancy and now her maternity leave.

I say “for the most part” because occasionally her thoughts have turned to work and she has considered how her new status of ‘mum’ could impact her job.

Employee concerns

My sister is a conscientious and hardworking primary school teacher. Her first concern was simply  about telling her employer that she was pregnant.

This came at a time when she had just been given additional responsibility for ‘extracurricular’ activities, in return for additional pay.

“It will be fine” I told her, “They will be happy for you!” and they were.

Then she worried about asking for time off for her antenatal appointments. Again, with my employment solicitor hat on, I reassured her. “Just tell them when the appointments are and what they’re for. The school can’t unreasonably refuse you time off to attend antenatal appointments.” I also said “check your pay – you’re entitled to be paid for this time off.” Again, no problems there.

“What if they just make me redundant and give the temporary teacher my job on a permanent basis?” she would say. “As long as there is a need for somebody to do your job, you have the right to go back to it. They can’t just give the temp your job.”Again, there was never any suggestion from the school that they were looking to replace her with the temp.

Then came “I’m worried that I won’t be able to manage five days a week when I go back.” I tried to reassure her again, “you have the right to request flexible working so you can ask to go back on three or four days a week. The school will need a very strong business case to show why they can’t accommodate you on a part-time basis.”

She submitted a flexible working request and the school granted her request to work three days a week. Fortunately she can now get on with enjoying the rest of her maternity leave.

The challenge for employers

I have offered reassurance to my sister over the last 18 months knowing all the time that for employers, managing pregnancy and maternity leave is challenging.

They must carry out risk assessments, allocate annual leave appropriately and possibly bring in supply teachers /agency workers to provide cover for appointments. They need to recruit the right person for a maternity cover contract and they must consider properly any flexible working request. Subsequently there may be a need to restructure the timetable or team and/or to recruit additional part-time staff.

For small businesses in particular, these challenges can prove significant. Especially in cases where two or more staff members fall pregnant at a similar time, or where an individual returns from maternity leave and falls pregnant again very shortly after returning.

Pregnancy and maternity discrimination: where are we now?

Despite her concerns my sister has been supported by her employer to date. She is naturally apprehensive about going back to work after so long, but she is sure they will continue to be supportive on her return.

Unfortunately, not all women have the same experience. A recent report published by the Women and Equalities Select Committee estimates that three-quarters of pregnant women experience a negative or discriminatory effect at work, and figures are worse now than in 2005.

Specifically, the report estimates that 53,000 women each year are being discouraged from attending antenatal appointments by their employers. This is despite permanent employees having a legal right to time off for these crucial check-ups. The report also estimates that 25% of women have left their jobs because health and safety concerns regarding pregnancy and maternity were not met.

MPs are now demanding urgent action. The Select Committee’s report has called for Britain to put in place protection similar to that in Germany. There pregnant women can only be made redundant in certain circumstances.

The report recommends the following:

  1. Extending the time limit for issuing a tribunal claim for pregnancy or maternity discrimination (from three to six months). This would allow mothers more time to decide whether they are going to pursue litigation;
  2. A substantial reduction in tribunal fees to reflect the fact that many new mothers will be on limited or no pay;
  3. That the government monitors access to free, good-quality, one-to-one advice on pregnancy and maternity discrimination issues. To assess whether additional resources are required.

In light of the report findings, it’s difficult not to support these recommendations. Had my sister not been able to ask me for advice, she would have continued to feel vulnerable and anxious about the implications of motherhood on her job. I also know that had the school not played ball, the cost of making a tribunal claim would have been a significant hurdle to overcome. Particularly when she is just about to exhaust her statutory maternity pay.

The harsh commercial reality however is that pregnancy and maternity present financial and logistical challenges to businesses, particularly small ones. Recruiting someone to fill a temporary role can be expensive and time consuming. Furthermore, both pregnancy and maternity do bring a level of uncertainty for an employer. Will that member of staff will be willing and able to work on their return?

It would be encouraging to see the government implementing initiatives that help small businesses in the future. As opposed to introducing more legislation which is likely to make some employers even more fearful of employees getting pregnant.

They could for example look at offering assistance with agency fees to help with temporary recruitment costs. Or they could set up a dedicated service within ACAS to provide advice on managing pregnancy and maternity issues.

Recognising both sides of the equation is essential if we are going to change the views of both employees and employers.

For more information or advice on pregnancy and maternity discrimination, please contact our Employment Law and HR team on 0161 475 7676.

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