When is a law not a law? Maternity rights have all the formal trappings of a law – they are on the statute book, enmeshed in our case law, and every employment lawyer and tribunal would acknowledge their existence – but they do not reflect what is happening in workplaces.
As the recent report on Pregnancy and Maternity Discrimination from the House of Commons Women and Equalities Committee has made clear, women are increasingly leaving work rather than face health and safety issues, or pregnancy discrimination. Such incidents are on the rise, a clear sign that the current system is not working.
This is backed up by the number of clients I have who report a negative change in their employer’s attitudes after they have announced their pregnancy or on their return to work.
If a law cannot be enforced effectively, its power to influence and shape employers’ behaviour is going to be severely limited. It also needs to be recognised that expectant and new mothers are going to be unlikely to bring claims when they are pregnant or caring for a young child – such time is precious and makes litigation, inevitably time-intensive, unattractive.
The report from the House of Commons Women and Equalities Committee focussed partly on the economic advantages to ending such discrimination, but such an argument will always be flawed unless accompanied by a principled case for why women should not face barriers in the workplace.
Expectant mothers should not have the dilemma of wondering whether they will be able to return to work with the same opportunities as before they were pregnant, or whether childcare responsibilities are compatible with their career.
Equality of parenthood and equality at work are closely intertwined, and we cannot expect to see one until we have the other.
Similarly, it is only an argument from principle that will enable us to extend protections to all employees and workers, as recommended in the report, rather than leaving some maternity rights (such as paid time off for ante-natal care, maternity leave and the right to request flexible working) for employees only.
Financial cost will always be an argument from businesses wanting to restrict these rights, but the real cost is in shutting women out from the workplace and putting significant barriers in the way of equal parenting.
Following the referendum result on EU membership, where a number of prominent leave campaigners including Andrea Leadsom expressed views that maternity rights would not be required if we left the European Union, now is a critical time to reassert both the importance of having these rights, and ensuring that they are enforced.
The recommendations of the Select Committee about extended limitation periods and reduction in employment tribunal fees are important steps in this regard (although one could ask whether such steps should be limited to just one protected characteristic).
The TUC has also been clear about the benefits EU membership brings to maternity rights.
Friends who were pregnant, and working for large international companies, contacted me in the early hours of 24th June, worried about how easily they could be dismissed.
Such examples made me realise that although some political uncertainty in the wake of such a referendum result may be unavoidable, there should be no legal uncertainty about how difficult it should be, barring extreme cases of gross misconduct and similar circumstances, to terminate a woman’s employment while pregnant.
It follows that the Select Committee’s recommendations to implement the German model of a “dismissal ban”, where only in extremely rare exceptions are employers permitted to dismiss a pregnant employee, cannot be implemented soon enough.