We live in an age where the benefits of increasing representation of women at all levels and across all industries are so uncontroversial as to be regarded self-evident. Concerted efforts to eliminate the “glass ceiling” have seen some success – in October 2013, 19% of FTSE 100 directors were women, up from 17.4% in May and from 12.5% three years ago.
Yet, in September 2013, Shadow Home Secretary, Yvette Cooper, spoke frankly of discrimination by “unsupportive” civil servants when she took maternity leave as a minister. She is not alone in her experience. According to figures analysed by the House of Commons library, 14% of the 340,000 women who take maternity leave every year find their jobs under threat after they finish their maternity leave.
The Equality and Human Rights Commission (the “Commission”) has announced comprehensive research into the scale of the problem. Given that women make up 47% of the UK’s workforce; that 80% of women in the UK will become mothers during the course of their lifetime; and that the average age of motherhood is 30, working mothers constitute a significant proportion of the UK’s workforce. The Commission aims to discover why they remain vulnerable to discrimination and to the damage it can do to their careers.
Commission Review – aim and impact
The Minister for Women and Equalities, Maria Miller, has pledged her personal support and committed £1million of public money to the Commission’s review to “tackle these systemic problems which leave women feeling undervalued and penalised”.
The success of the project must be determined not by its capacity to identify problems, but by its ability to develop recommendations that make a real impact. In June 2005, the Commission’s predecessor, the Equal Opportunities Commission, published a report on pregnancy discrimination which found that pregnancy cost families in the UK nearly £12 million pounds a year in lost maternity pay: women were frequently fired before they were entitled to claim. Since then, a significant body of legislation has ostensibly given pregnant women and working parents far greater protection. Yet, despite this, over 9,000 pregnancy discrimination claims have been brought against UK employers since 2007 alone.
The legislative infrastructure designed to protect prospective and new mothers is substantial. The Commission’s challenge is to ensure that women need only have recourse to its protection in rare and exceptional circumstances and, that having sought help, the system is effective.
Overview of the law relating to maternity leave
There is a significant body of legislation aimed at protecting pregnant employees and working parents. The government has also proposed changes which it hopes will make the system fairer and more flexible.
Pregnant employees have the statutory right to take up to 52 weeks’ maternity leave. The employee must take two weeks’ leave (or four weeks for factory workers) immediately after the birth as compulsory maternity leave, and an employer who allows employees to work during this period commits a criminal offence.
The legislation provides for a broad range of other protections and rights for employees who are having or who have had a child. Pregnant employees are entitled to reasonable paid leave for antenatal care. During her maternity leave, the employee can work up to ten “keeping in touch” days, which may help facilitate her ultimate return to work. Other key rights include health and safety protection while pregnant and breast-feeding and the right to request flexible working conditions on return to work. Perhaps most significantly, the employee has the right to her original job or a suitable alternative when she returns from maternity leave.
The Equality Act 2010 provides protection for employees against pregnancy and maternity discrimination.
Direct discrimination occurs where a woman is treated unfavourably by reason of her pregnancy or maternity leave. As long as the woman’s pregnancy or maternity leave was a material influence in the unfavourable treatment, it does not have to be the only – or even the main – reason. It is also unlawful to subject a person to a detriment because they have made a complaint or a claim of discrimination.
Reforms of flexible parental leave
The Government plans to introduce a new system of shared flexible parental leave in 2015. Parents will be able to choose how they share care of their child in the first year after birth.
The new system will allow qualifying parents to share between them up to 50 weeks of leave and 37 weeks of pay (i.e., everything other than the compulsory maternity leave period). Employees can propose the pattern of leave that they wish to take.
Tips for employers – dos and don’ts
Do identify key dates. You will need to know the baby’s due date to calculate when maternity leave is due to begin and when it is due to end. Note any antenatal appointments.
Don’t plan just for your employee’s departure and return – keep in mind your responsibilities to her in her absence. Do you need to keep her “in the loop” about key developments? Has she agreed to this? “Keeping in touch” days can be crucial for maintaining the connection.
Do identify your legal obligations and the employee’s rights. These may be contained in employees’ contracts or company policies, as well as in statute. They may go beyond simple maternity leave and/or basic pay: does the employee have a pension or company car? You should also ensure that your employee is aware of her rights and her own obligations, and that she has copies of any relevant policies.
Don’t dismiss the possibility of flexible working. Consider each application on its merits.
Do make it personal. Congratulate your employee. This is good news for her, with implications that go beyond your business needs. Welcome her back personally and be aware of additional support that she may need when fitting back into her role and balancing her new responsibilities. Regular communication will be crucial to smooth the transition into and back from maternity leave.
Emilie Bennetts, Associate and Rachel Walsh, Trainee Solicitor, Charles Russell LLP