One third of mothers do not feel their employer supported them willingly during their pregnancy or when they returned to work.
A recent report published by the Equality and Human Rights Commission (EHRC) found that 11 percent of mothers were either dismissed, made compulsorily redundant or were treated so poorly they felt they had to leave their job. In addition 10 percent of mothers said their employer discouraged them from attending antenatal appointments. One in five mothers said they had experienced negative comments or harassment related to pregnancy or flexible working from either colleagues or their employer.
Surprisingly, the same report found that the majority of employers surveyed reported it was in their interests to support pregnant women and those on maternity leave. The majority of employers also agreed that statutory rights relating to maternity and pregnancy are easy to implement and reasonable. Despite this a third of mothers did not feel their employer supported them willingly during their pregnancy or when they returned to work.
In research carried out by parenting website Mumsnet the statistics of those who felt discriminated against were even higher. Two thirds of the site’s users reported feeling less employable after having a child and three quarters said it was harder to progress in their careers.
In a recent case an employee, Catherine McClennan, was successful in a claim of discrimination against the Trades Union Congress (TUC). She claimed that during her maternity leave many of her responsibilities were given to colleagues. By the time of her return she alleged that she felt her whole career had been taken away from her. Her role was later removed and she was required to compete with two colleagues for another position. She took redundancy and brought a claim for discrimination. Ironically, the TUC have recently published a report named “The Pregnancy Test: Ending discrimination at work for new mothers”, which offers advice to women on how to cope with returning to work following maternity leave.
In terms of recruitment, 70 percent of employers reported that they felt a woman should declare upfront during recruitment if they are pregnant. It is important that employers do not discriminate against job applicants as they also receive protection under the Equality Act 2010. Questions regarding children or any plans to have children should be avoided. Employers are advised to keep clear records of interviews and in particular notes evidencing the selection process so that they can prove if necessary that the reason an applicant was unsuccessful was not discriminatory.
All businesses should operate an equal opportunities policy which clearly sets out how those returning to work following maternity leave should be treated. Managers should also receive training on the equal opportunities policy to ensure it is being implemented in the same way by all departments. In addition, a clear maternity policy should be maintained which details employees’ entitlement to maternity leave, the procedure for taking this and details regarding keeping in touch (KIT) days.
It is helpful for employers to discuss employee entitlements and the process of taking maternity leave with the employee as soon as possible. Employers may also wish to discuss with the employee how their work will be covered during their maternity leave. These discussions should help to reassure the employee that they will be able to return to their role following maternity leave.
In addition employers are required to undertake risk assessments in respect of pregnant employees or new mothers. It is important that any particular risks for pregnant employees are considered and controls put in place to reduce the risks. The Health and Safety Executive has created a useful flowchart to help employers meet their obligations. Where it is not possible to alter working conditions or hours to alleviate the risk, employers should offer suitable alternative work on terms that are not “substantially less favourable”. If this is not possible, employers may need to consider suspending the employee on full pay.
The EHRC report found that 98% of employers undertook risk assessments and around half of employers with a recent pregnancy in their workplace had changed the duties of a pregnant woman due to risks which were identified. Employers should discuss any risks with the employee in question so that the process appears more transparent. In addition 19% of mothers reported that they identified risks which their employer did not.
Following this report, the EHRC have launched a campaign using “#worksforme” to highlight the issues in respect of maternity discrimination. They have a helpful “13 steps to best practice” guide on their website which suggests practical steps employers can take to ensure employees feel supported. These steps range from assigning a maternity buddy (who has previously been on maternity leave to help guide an employee through the process) to agreeing how contact will be made during maternity leave and assessing whether any further training or support is required on return to work. This is a straightforward and helpful resource which provides suggestions to employers on how they can best support pregnant employees.
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Kristie Willis is a solicitor in the Employment Law Department at BTMK Solicitors LLP. She advises employees and employers upon all aspects of Employment Law and provides Employment Tribunal representation. Kristie specialises in discrimination and unfair dismissal cases.
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