Effect of Maternity Discrimination

Despite legal protections, pregnancy and maternity discrimination in the workplace is widespread. Research published in March 2016 by the Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission (EHRC) found, among other things:

• Overall, three in four mothers (77%) said they had a negative or possibly discriminatory experience during pregnancy, maternity leave, and/or on return from maternity leave. If scaled up to the general population this could mean as many as 390,000 mothers a year.
• Around one in nine mothers (11%) reported they felt forced to leave their job. This included those being dismissed (1%); made compulsorily redundant, where others in their workplace were not (1%); or feeling treated so poorly they felt they had to leave their job (9%). If scaled up to the general population this could mean as many as 54,000 mothers a year.
• If scaled up to the general population this could mean as many as 54,000 mothers a year. If scaled up to the general population this could mean as many as 54,000 mothers a year.
• One in 25 mothers (4%) left their jobs because of risks not being tackled. One in 25 mothers (4%) left their jobs because of risks not being tackled.
• One in ten (10%) mothers were discouraged from attending antenatal appointments. This could mean as many as 53,000 mothers a year.

There have been a number of Westminster Hall debates on this subject. There was a Westminster Hall debate on maternity discrimination on 14 July 2016; see here. A Library debate pack published for that debate is available here. Members had also debated the issue previously, on 3 November 2015 [3 November 2015 308WH].

Since those earlier debates, on 31 August 2016, the House of Commons Women and Equality Committee published the report of their inquiry into pregnancy and maternity discrimination. The report summarised the issue, and its recommendations, as follows:

Shockingly, pregnant women and mothers report more discrimination and poor treatment at work now than they did a decade ago. With record numbers of women in work in 2016, the situation is likely to decline further unless it is tackled effectively now. Urgent action and leadership is needed, but the approach that the Government is taking forward lacks urgency and bite. There is a lack of detail about the Government’s objectives, how and when it expects to achieve them, and how the effectiveness of its approach will be assessed. We welcome the awareness-raising work that the Government is doing with the EHRC and businesses, but it needs to set out a detailed plan outlining the specific actions it will take to tackle this unacceptable level of discrimination. This work must be underpinned by concrete actions to increase significantly compliance by employers and so improve women’s lives.

The Government must make changes in laws and protections to ensure a safe working environment for new and expectant mothers, to prevent discriminatory redundancies and to increase protection for casual, agency and zero-hours workers. It must also provide incentives and ensure better enforcement to encourage better employer practice. Currently, the burden of enforcement rests with the individual experiencing discrimination, but the number of women taking enforcement action is low. The Government must take urgent action to remove barriers to justice and should seek ways of reducing the burden on women and making it easier for them to take action. It must also set out how it will monitor whether outcomes are improving for women.

A summary of our key recommendations is outlined here.

Strategy and leadership

The Government should publish a strong, specific communications plan for the awareness-raising and attitude-changing work it has agreed to undertake in response to the EHRC’s recommendations. The plan should include clear timelines and should set out where accountability for implementation will lie. (Paragraph 106)

Changes in laws and protections

Employers should be required to undertake an individual risk assessment when they are informed that a woman who works for them is pregnant, has given birth in the past six months or is breastfeeding. (Paragraph 44) 3.

The right to paid time off for antenatal appointments should be extended to workers.

The Government should review the pregnancy and maternity-related rights available to workers and legislate to give greater parity between workers and employees. (Paragraphs 57 and 58)

Access to justice

The Government should review the three-month time limit for bringing a tribunal claim in maternity and pregnancy discrimination cases and should substantially reduce tribunal fees. (Paragraphs 143 and 146)

The Government should monitor access to free, good-quality, one-to-one advice on pregnancy and maternity discrimination issues and assess whether additional resources are required. (Paragraph 157)

The Government published its response to the Committee’s recommendations on 26 January 2017.

Equality law

“Pregnancy and maternity” is a protected characteristic under section 4 of the Equality Act 2010. Broadly speaking, the Act prohibits unfavourable treatment at work due to pregnancy or pregnancy-related illness, during the period between the start of pregnancy and the end of statutory maternity leave.

Pregnancy and maternity discrimination is also prohibited in non-work cases. For example, a café owner must not ask a woman to leave the café because she is breast-feeding her baby.

Protection from dismissal

Alongside the Equality Act, under the Employment Rights Act 1996, an employee will be regarded as unfairly dismissed if the reason or principal reason for the dismissal relates to pregnancy, childbirth or maternity. Selection for redundancy due to pregnancy or maternity leave is automatically unfair.

Maternity leave and the right to return to one’s job

The right to maternity leave is set out in Part 8 of the Employment Rights Act 1996 and Part 2 of the Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312). There are three types: compulsory maternity leave, ordinary maternity leave and additional maternity leave:

• Compulsory maternity leave lasts for two weeks from the date of childbirth (four weeks in the case of factory workers), during which the employer must not permit the mother to work;
• Ordinary maternity leave lasts for 26 weeks, inclusive of the period of compulsory maternity leave;
• Additional maternity leave commences on the day after the last day of ordinary maternity leave, and lasts for 26 weeks.

The distinction between ordinary and additional maternity leave relates to the employee’s right to return to the same job. If the employee returns to work during ordinary maternity leave she is entitled to the same job, with the same terms and conditions. If she returns to work during additional maternity leave she is entitled to return to the same job or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is appropriate for her to do in the circumstances.

The right to time off in respect of ante-natal care is provided in Part 6 of the Employment Rights Act 1996. A pregnant employee/agency worker is entitled to paid time off to attend an ante-natal care appointment made on the advice of a registered medical practitioner, midwife or registered nurse.

The Children and Families Act 2014 amended the Employment Rights Act 1996, introducing a right to unpaid time off to accompany a pregnant woman “when she attends by appointment at any place for the purpose of receiving ante-natal care”. Employees/agency workers with a “qualifying relationship” with the expectant mother or child are entitled to a maximum of two periods of time off, each limited to six and a half hours. The qualifying relationships include, for example, spouses, prospective fathers and persons in enduring family relationships with pregnant women.