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Are expectant and new mothers adequately protected in the workforce? Not according to the Women and Equalities Select Committee

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Posted in:HR and Employment|September 5, 2016 | Join the mailing list

This week urgent action has been called for by MPs following a report published by the Women and Equalities Select Committee which indicated that discrimination against pregnant women and new mothers in the workplace is worse now than in 2005. The report follows the recent study by the Institute of Fiscal Studies (IFS) which found that women who return to work after maternity leave end up earning a third less than men.

the Select Committee’s report indicated that the number of new and expectant mothers who felt forced out of their jobs has nearly doubled in the last decade. Research carried out by the Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission found that 11% of women reported either being dismissed, made compulsorily redundant when others in their workplace were not, or treated so poorly they felt they had to leave their job.

Employers should by now be well aware of the legal protections that exist in UK law for expectant and new mothers, who cannot be treated less favourably (either directly or indirectly) by reason of their pregnancy or maternity, their sex or their status as part-time workers (if that is the basis on which they have returned to work). The usual rules of unfair dismissal apply to these individuals and any dismissal (including by reason of redundancy) cannot be for the principal reason of pregnancy or maternity will be unfair and therefore unlawful. Levels of compensation for these claims can be uncapped and therefore may be costly for employers.

However, the findings of these reports seem to indicate that the laws in this area are not preventing discrimination from happening in many cases and there have been calls for government action.

MPs on the Select Committee called for the government to urgently put into place protection similar to the protection provided in Germany. The German system provides a high level of protection for women from the start of pregnancy until four months following child birth. In Germany, an employee can only be dismissed during that period in very rare cases (for example, liquidation) and the employer must obtain government approval in order to do so.

Maria Miller, chair of the Women and Equalities Committee said that “thousands of expectant and new mothers have no choice but to leave their work because of concerns about the safety of their child or pregnancy discrimination. Shockingly this figure has almost doubled in the last decade, now standing at 54,000.” Ms Miller’s full comments can be read here.

Ms Miller criticised the government’s approach which she said “lacked urgency and bite”. She added “this work must be underpinned by concrete targets and changes to laws and protections to increase compliance by employers to improve women’s lives”.

Employers should be aware of the Select Committee’s recommendations as they can give an indication of likely future government policy. The recommendations included:

1. To increase the three month time limit for bringing employment tribunal claims to six months for pregnancy and maternity discrimination cases. The report noted that the current time limit does not recognise the pressures on expectant and new mothers.

2. To make substantial cuts to the current total fees payable for an employment tribunal case, which is £1,200, as this is not affordable to most.

3. To urgently review pregnancy and maternity related rights available to casual, agency and zero hours workers. The report highlighted that women in this group were some of the most at risk of not being afforded protection. Maria Miller noted “while we understand the reason they do not have the same day one rights as employees, employers should be able to avoid affording regular, long term workers the same basic rights as employees because they have a different contract type”.

4. That paid time off for antenatal appointments is extended to all workers after a short qualifying period.

The Select Committee report and recommendations have highlighted as an issue that a significant number of employers seem not to be complying with employment law in this area. It should be noted that the cases included in this research were not subject to legal analysis to determine if they all would have been successful, so the picture may not be as bad as it appears. However, there does seem to be a tension between business culture and the law in this area. It is evident from the report that high levels of unlawful discrimination against expectant and new mothers is concerning to MPs (as it should be) and therefore employers can expect further developments – so watch this space for news.

To find out more about the issues raised in this post, or to discuss any queries regarding equality in the workplace get in touch with Kim Freeman Smith or call +44 (0) 161 829 2599.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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