Many of you know that Employment Tribunals are on the increase. You may not be aware though that one of the largest rises in Employment Tribunal claims comes from pregnancy/maternity dismissal and detriment cases.
In the period Oct – Dec 2018 these types of claim had risen 56% (on the same quarter in 2017) and all signs, together with our own recent experience, suggest that trend continuing.
With this in mind here is the first in a series of blogs on the topic of Pregnancy and Maternity in the Workplace which we will also be focusing on in our next Employment Law update .
The first blog in our series comes from Tamsin. To give this topic some context, she looks back at her experiences, both personal and professional, and asks if anything has changed since she had her first child, 18 years ago.
Pregnancy in the Workplace – has anything changed?
Writing this blog about pregnancy coincides with my own eldest child ‘leaving the nest’ for the first time. A levels are over and she is away travelling with friends. 18 years has passed in a blur.
I still vividly recall the experience of being ‘pregnant at work’ back in 2000. Most of all, it was the feeling of ‘difference’ that I experienced. Trust me, back then there were not many other pregnant solicitors walking around my City law firm. Although my managers were supportive (they were employment lawyers, of course), it still felt a little like the Wild West on the outside.
Much has changed, I think to myself. But has it really?
Pregnancy in the Workplace – the reality
Over the years, I have represented employees in Tribunal cases where there have been jaw-dropping examples of pregnancy discrimination.
A survey of mothers last year found that about 1 in 100 believed that had lost their jobs because of pregnancy, and it’s estimated 54,000 women a year are pushed out of their jobs due to pregnancy or maternity. Frighteningly, despite it being 2019 when I last looked, 40% of employers say they would not hire a woman of childbearing age.
As the problem refuses to go away, the Government is considering whether to implement a system similar to that in Germany, whereby pregnant women can only be made redundant in specified circumstances. I suspect they will not do so. However, the redundancy protection period is to be extended from the point that the woman tells her employer she is pregnant to six months from the day that her maternity leave finishes. Many would say that, given the statistics above, this does not go far enough.
What I see commonly are complaints of ‘insidious’ unfavourable treatment of a pregnant woman – snide comments, criticisms of their performance and criticism of any absences from work or changes in their hours.
The individual can be left feeling rather vulnerable, and the insidious stuff can be harder to challenge. For example, an anomaly exists whereby the definition of ‘harassment’ excludes harassment relating to the ‘protected characteristic’ of pregnancy.
If an employee does raise the issue and bring a grievance, by the time that process has concluded, a new baby has often arrived leaving the new mum pretty busy.
Many employees simply choose not to return to their workplace (and their line manager – where the problem usually lies) rather than challenge the behaviours. No wonder the website Pregnant then Screwed reports that 67% of women do not follow through with potential Tribunal claims when they have suffered pregnancy/maternity discrimination.
What’s the solution?
The Government has recommended extending the time-limit for bringing a Tribunal claim relating to pregnancy/maternity discrimination from the usual 3 months to 6 months, which does seem exactly the right thing to do as it allows new mothers time to catch their breath (and get some sleep).
The Equality and Human Rights Commission did some research (published in May 2018 and available here). This showed a mismatch between the employer and employee experience of pregnancy. 4 out of 5 employers reported feeling that it was in the interests of their business to support pregnant women. By way of contrast, 1 in 3 employees reported that they felt unsupported by their employer. Examples given by employees included:
- 3 in 10 employees said they were not allowed flexibility, particularly around hours worked and breaks
- 15% reported feeling that had been given unsuitable work or workloads
- 8% felt they were treated with less respect by their line manager
- 9% reported that they felt so poorly treated that they felt they had to leave
- 1 in 7 reported experiencing harassment related to their pregnancy
A similar mismatch exists around risk assessments: 98% of employers reported undertaking health and risk assessments but 1 in 5 pregnant women said that they had identified risks not identified by the employer in the risk assessment. The HSE guidance on pregnancy risk assessments, by the way, is now much improved.
I tell myself that my daughters and their friends should have an easier ride as working mothers because of all the advice I have given over the years on this topic (OK, maybe it wasn’t just me and my advice). Reading back on this topic to write this blog, I’m reminded it is not time for me to retire any time soon.
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