Blog: Is employment law currently failing pregnant women?

Simon Martin, Specialist Employment Lawyer at Menzies Law

Yes it is, according to a report recently issued by a Committee of MPs, known as the Women and Equalities Committee.  They say that  “urgent action” is needed to give pregnant women and new mothers more protection at work after a “shocking” increase in discrimination.

The Committee is calling for a German-style system, where it is harder to make women redundant during and after pregnancy.   In Germany, from the beginning of pregnancy until four months following childbirth, employers can only dismiss such an employee in very rare cases, such as the company becoming insolvent and, even then, the employer needs government approval to do so.

In the UK, although pregnancy/maternity related dismissals are usually unlawful because they amount to sex discrimination, employers can and do still dismiss such employees, usually by reason of redundancy. The Committee said that the number of expectant and new mothers forced to leave their jobs has almost doubled to 54,000 since 2005.  In these last 11 years, the number of women who work has not changed significantly, and nor has the number of them having babies.  But what has changed is that twice as many of them now, compared with 2005, are finding that their pregnancy leads fairly swiftly to them losing their job.

Now that’s a pretty appalling statistic.  Not only on the face of it, but also because it is moving in the opposite direction of travel from almost every other aspect of equality in the workplace and society as a whole.

The report quoted research from the Department for Business, Innovation and Skills and also from the Equality and Human Rights Commission, which found that 11% of working women who were pregnant or on maternity leave reported being either dismissed, singled out for redundancy, or being treated so poorly that they felt they had to leave their job.

The Committee also recommended:

  1. more protection for casual, agency and zero-hours workers, such as making it easier for women to attend antenatal appointments;
  2. a “substantial reduction” in the £1,200 application fee for women bringing a pregnancy-related discrimination case to an Employment Tribunal; and
  3. the three-month time limit on taking cases to a Tribunal should be doubled to six months, to allow them more time.

A few thoughts occur to me arising out of this report.  The first is the recommendation regarding Tribunal fees.  There appears to be a recognition that the Tribunal fees have put off employees from bringing reasonable claims. This is contrary to the standard line from the Government which is that the Tribunal fees have only weeded out the time-wasting/spurious claims.

From a legal adviser’s perspective, I’d suggest that the existing legislation already provides significant protection for employees on maternity leave. For instance, there already is a rare example of lawful positive discrimination for employees on maternity leave. Essentially, in a redundancy situation when an employer has two equally qualified redundant employees it is required to offer any suitable alternative vacancy to the employee who is on maternity leave.  I recently advised a disabled (male) client and he was dismissed for redundancy because the other employee in the selection pool was a female who was on maternity leave and she was given the alternative employment on that basis, in preference to him.  He was at least as well suited for the new role (in fact, he had more experience) but the employer was mindful of its obligations to female workers and so it was difficult to persuade it  otherwise.

Given the result in the recent referendum, I feel it is unlikely that the current Government will be taking steps to mirror the significantly enhanced protection enjoyed by German employees.  In fact, if and when we ever do trigger Article 50 and leave the EU, my guess is that the likely direction of travel is likely to be for a watering down of employee rights.  That however is going to have to be the subject of another blog…

Simon Martin
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Simon Martin, Specialist Employment Lawyer at Menzies Law