Baby steps…or a step too far?

The Women & Equalities Committee recently published its inquiry findings on workplace pregnancy and maternity discrimination. This inquiry was launched after research last year by Department for Business, Innovation & Skills and the Equality and Human Rights Commission found that discrimination towards pregnant women and new mothers had doubled since similar research was carried out in 2005.

What’s going on?

• an estimated 54,000 women reported that they had been dismissed, made redundant or treated so poorly that they felt they had no choice but to leave their job
• one in five women experienced harassment or negative comments regarding their pregnancy or flexible working
• 77% said they had a negative or possibly discriminatory experience during pregnancy, maternity leave and/or on return from maternity leave.

The Committee has now made several recommendations. The most headline-grabbing one is the suggestion that employers should only be able to terminate the contract of a woman who is pregnant or on maternity leave (and for a period of six months afterwards) in specified circumstances. This is similar to the position in Germany where an employee can only be made redundant within a four-month window of her returning from maternity leave with public authority approval. In reality, consent is only granted in exceptional circumstances (such as an entire company closing down).

Other European countries also restrict the ability of employers to terminate an employee’s contract during maternity leave. France, for example, restricts dismissals to cases of serious misconduct or where it is impossible to maintain the contract during pregnancy, maternity leave and for a period of four weeks following the end of maternity leave.

What protection is there in the UK?

Pregnancy and maternity is a protected characteristic under the Equality Act 2010. It is unlawful for employees to treat women unfavourably (starting once the employer is aware of her pregnancy to the end of her maternity leave) because of her pregnancy or pregnancy-related ill health, the fact that she is on compulsory maternity leave or that she is seeking to exercise her right to take ordinary or additional maternity leave.

Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 entitles an employee on maternity leave whose role is made redundant to be offered a suitable alternative vacancy in priority to other employees. This protection does not, however, extend to pregnant employees or those who have recently returned to work from maternity leave.

Employers also have responsibilities under health and safety law to assess any particular risks to new and expectant mothers.

A step too far?

The report’s rationale for calling for a higher level of protection more aligned to Germany’s position is that it is difficult for employees to prove that pregnancy or maternity leave was the reason for their dismissal. However, restricting employers’ ability to make pregnant employees redundant (or those on or recently returned from maternity leave) may severely impact struggling businesses - small ones in particular. Under a German-style system, many employers may feel unwilling to apply to the Government for approval through fear of being perceived negatively for doing so.

The Government is now under pressure to publish a detailed plan within the next two years to combat further increases in pregnant women and mothers being forced out of work. We’ll keep you updated with any further developments.