We look at the joint report published by the Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission (EHRC) on pregnancy and maternity related discrimination and disadvantage in the workplace. The report is based on interviews with 3,034 employers and 3,254 mothers and covers the views and experiences of employers and mothers on a range of issues relating to managing pregnancy and maternity leave and returning to work.
Pregnancy and maternity is a protected characteristic under the Equality Act 2010. The legislation prohibits discrimination because of pregnancy and maternity, including treating a woman less favourably because she is breastfeeding. In addition Regulation 10 of the Maternity and Parental Leave Regulations 1999 requires that, when a woman faces redundancy during her maternity leave, if there is a suitable alternative job it must be offered to her. Failure to offer the suitable alternative job could be automatic unfair dismissal and also discriminatory.
There have been significant changes in the regulation of family-friendly working arrangements over the last decade, which have impacted on the workplace management of pregnancy and maternity. These include the Work and Families Act (2006), which introduced 52 weeks' maternity leave for all employees and keeping in touch days; changes to the rules governing carers' requests for flexible working (2007); the Additional Paternity Leave Regulations (2010); and the Children and Families Act (2014), which extended the right to request flexible working to all employees. Despite the legislation, there is some evidence that women still experience discrimination because of pregnancy or maternity, that some employers may not fully understand their obligations towards pregnant women, those on maternity leave or those returning from maternity leave and that employees may not be fully aware of their rights or able to secure access to redress.
The last comprehensive study on these issues was undertaken in 2005, when the Equal Opportunities Commission conducted a formal investigation into discrimination against new and expectant mothers in the workplace. More recent surveys suggested that mothers and those who are pregnant still experience some unfair treatment but did not explore the scale, causes or who it affects. Other surveys looked at employers’ awareness of maternity rights but did not indicate where awareness is low or the reasons for this. In light of these evidence gaps, BIS and EHRC commissioned the research.
The research found that the majority of employers were positive about managing most of the statutory rights relating to pregnancy and maternity. For each statutory right, more than half of employers felt it was reasonable and easy to facilitate. Smaller and/or private sector employers were the most likely to report difficulties facilitating these rights and were more likely to state that some were unreasonable.
It was more common for mothers to experience unfavourable treatment while pregnant than on maternity leave or on return to work. Mothers aged under 25, single mothers and those with a long-term limiting illness were most likely to report unfavourable treatment in pregnancy.
Announcing a pregnancy
In terms of communicating their pregnancy to their employers, most women reported positive experiences and felt equally valued by their employer following announcement of their pregnancy. However there were still many who had negative experiences and a poor experience was more common among women working in caring, leisure and other service occupations.
Most employers (70%) said they felt that women should declare upfront if they are pregnant during recruitment. A small minority of mothers (3%) had attended job interviews while pregnant and most of these had informed the employer that they were pregnant or felt it was obvious. Around half (51%) of those who attended an interview when pregnant were successful in finding a job, as were three quarters who attended an interview after the birth of their baby.
An employer is legally required when making recruitment decisions not to treat a woman unfavourably because she is pregnant or might become pregnant. If an employer asks an applicant questions about pregnancy or her plans to start a family, and she is not appointed to a post, an employment tribunal may conclude that discrimination has occurred. However not all employers agreed that avoiding asking women questions about pregnancy and their plans to have children was reasonable; one in four employers thought it was reasonable to ask women about this.
Once an employer was aware that a woman was pregnant, nearly all employers (98%) undertook health and risk assessments. It was common for these to identify risks for pregnant women or mothers returning from maternity leave - two thirds of employers undertaking risk assessments that had a pregnant worker in the last three years identified specific risks for such staff. Where mothers said risks were not fully tackled, it was most common for them to continue working in the same job role (72%). Two in five (38%) mothers said it led to them starting maternity leave earlier than they wanted and more than a quarter took sick leave (28%).
After a woman went on maternity leave, the level of contact with employers varied greatly between different types of workplace. Large employers tended to have formal or informal contact with employees on maternity leave, typically to keep employees up to date, and they were also more likely to be aware of KIT days and to use them. Small private sector employers were much less likely to have either formal or informal contact with employees on maternity leave or to be aware of KIT days. Where contact was made by smaller employers, it was more likely to consist of checking on the welfare of the mother and baby.
Just under half of mothers (45%) reported that they experienced some kind of problem around employer contact whilst on maternity leave. By far the most common problem cited was too little contact from their employer (26%).
Returning to work
Nearly six in 10 (58%) employers with a pregnancy in the last three years in their workplace had received requests for flexible working from pregnant employees or those on or returning from maternity leave. Nearly seven in 10 (68%) mothers said that they had made a request for one or more types of flexible working and in most cases requests were approved straight away or after some discussion with their employer. However four in 10 mothers (38%) said they would have liked to work more flexibly but did not request this because they were concerned it would not be approved or that it would lead to negative consequences.
One of the report's findings that has made the headlines is that around one in nine mothers (11%) reported that they were either dismissed, made compulsorily redundant where others in their workplace were not or treated so poorly they felt they had to leave their job. If scaled up to the general population, this could mean as many as 54,000 mothers a year.
Overall, 5% of employers with experience in the last three years of a pregnant employee in their workplace or a mother returning to work following maternity leave had received either a formal complaint relating to pregnancy or maternity discrimination and/or had had informal discussions with women about perceived unfair treatment in this area. Just over one in five (22%) women reported raising issues either formally or informally regarding problems they experienced with their employer while pregnant, on maternity leave or after returning to work.
The survey findings do not seek to label employers as 'good' or 'bad' and are based on employers' and mothers’ perceptions and in the case of mothers, their view of whether their treatment was because of their pregnancy and/or maternity leave. This treatment does not necessarily fall under the legal definition of discrimination. Only an employment tribunal can determine whether unlawful discrimination or unfair dismissal has occurred. However the findings do highlight the fact that pregnancy and maternity remains an area where there are opportunities for many employers to improve their practices.