In an article first published by Thomson Reuters Accelus, Managing Associate Annabel Mackay considers new research on pregnancy discrimination in the workplace. The recent survey commissioned by the Equality and Human Rights Commission (EHRC) as part of a programme of research to investigate the nature and extent of pregnancy discrimination in the workplace contained some stark findings. While the majority of employers reported that supporting pregnant women and those on maternity leave had positive benefits in terms of staff retention, the experiences of the 3,254 mothers who took part in the survey told a different story. We report here on the findings.

A range of potentially discriminatory treatment during pregnancy, maternity leave and on return to work was described. Around 1 in 9 mothers reported that they were forced to leave their job (whether as a result of poor treatment, compulsory redundancy [while others were retained] or other forms of dismissal).

One in 5 mothers had experienced harassment or negative comments relating to pregnancy and flexible working, from their employer and their colleagues. There were 10 percent of mothers who said that they had been discouraged from attending antenatal appointments.  These responses appear difficult to reconcile with the fact that more than 4 in 5 employers felt that providing support to pregnant women and those on maternity leave was beneficial from a business perspective. In addition, 80 percent of employers regarded pregnant women and those on maternity leave as being just as committed to work as other team members. Only 5 percent of employers had encountered difficulties managing the attitudes of other employees.

What can explain this apparent disconnect between the employer and employee experience in relation to one third of the mothers who felt that they were not supported willingly during pregnancy and as mothers?

Pending the publication of qualitative research in the Autumn, it is interesting to focus on the areas where employers experienced particular difficulty with regard to maternity entitlements and their implementation. These included, among other matters, the preferential treatment accorded to women who are made redundant during maternity leave and uncertainty regarding the timing of an employee's return to work.

Enhanced protection from redundancy

Regulation 10 of the Maternity and Parental Leave Regulations 1999 provides that employees who are made redundant during maternity leave have a priority right to any suitable alternative vacancies. As the survey explains, "the employee on maternity leave must be considered for these vacancies before any other employee and must not be made to apply for any such vacancy or be interviewed for it-it should be offered to her."

The recent Employment Appeal Tribunal case of Sefton Borough Council v Wainwright confirmed that where two roles are combined into one, the employee on maternity leave must be given priority for that role (assuming that it is suitable). The employer cannot dictate when the right applies; the duty is triggered at the point at which the role is redundant or potentially redundant.

Around 1 in 3 employers felt that the enhanced protection from redundancy during ordinary maternity leave was unreasonable and difficult to facilitate. In the Wainwright case, the council sought to argue that offering Mrs Wainwright the combined role, when her male colleague was the better candidate, went further than was reasonably necessary to counteract the disadvantage created by maternity leave. The EAT rejected these arguments, which are illustrative of the view held by many employers and line managers.

Having conceded that the role was suitable, Sefton Borough Council could not put Mrs Wainwright through a competitive selection process. The Council might have discharged their duty if they had offered Mrs Wainwright another role, which was suitable, but no other vacancies had been offered in that instance.

This case demonstrates that the absolute priority for suitable alternative vacancies continues to cause employers discomfort. The analysis of the employers' perspective by sector revealed that the percentage of employers who felt that the entitlement was unreasonable was particularly high in financial services (40 percent).

Given that the survey suggests that employers in the finance sector were most likely to make pregnant women redundant (13 percent), it is important that employers and line managers are aware of, and understand how to implement, Regulation 10 rights in order to avoid complaints. Just over half of employers failed to offer an alternative role to women that they made redundant.

Uncertainty regarding the right to return

One quarter of employers said that the uncertainty regarding when an employee would return from maternity leave was a source of concern. Employers also highlighted related issues regarding the duration of additional maternity leave and arrangements for temporary cover.

This dissatisfaction and wish for greater certainty in relation to the likely return date aligns with another issue that was reported in the survey regarding the level of acceptable contact during maternity leave.

Around 3 in 10 employers were anxious that too much contact would be seen as putting pressure on women to return from work early. The survey noted however that mothers were more likely to complain about too little contact than too much. These mothers would have liked general updates about workplace developments and a response or a quicker response to queries that they raised.

The survey acknowledged that large and medium-sized employers are less likely to worry that their contact with women on maternity leave will be misinterpreted. Employers in financial services also had a particularly strong awareness of KIT days compared to other sectors. This finding should be welcomed as regular communication during maternity leave will help to avoid some of the reported difficulties in relation to redundancy exercises and the availability of flexible working on an employee's return.

Flexible working

The survey recorded that mothers commonly requested changes to their working pattern, the majority of which had been approved. Part-time working and reduced hours were the most common arrangements, with job-sharing and home-working being less frequent. However, half of mothers reported negative consequences following approval of their flexible working request, such as reduced work opportunities.

The survey reported that mothers in professional occupations (57 percent) and mothers earning more than £30,000 (56 percent) were most likely to have experienced negative consequences as a result of their flexible working requests.

These included receiving fewer promotion opportunities than colleagues, being given more junior tasks than previously, receiving negative comments from their employer or colleagues, feeling that their opinion was less valued and feeling uncomfortable about requesting additional flexibility. It is therefore important that employers continue to monitor the impact of flexible working arrangements via initiatives such as working family groups or employee surveys.  Benchmarking exercises should also take place to ensure that compensation decisions are fair; the survey reported that high earning employees in the private sector were most likely to have less favourable experiences in relation to career progression and financial reward.  The survey covered a range of other issues such as recruitment and health and safety matters. Nevertheless, perhaps the most striking aspect of the survey was that, despite employers expressing a high level of support for pregnant women and those on maternity leave, employees still reported a range of unfavourable treatment.

As shared parental leave beds in, these problems may extend to a broader cross-section of the workforce. Employees taking shared parental leave will have the same right of priority for suitable alternative employment as those who are made redundant during maternity leave.

The availability of shared parental leave may also encourage more men to request flexible working. It is therefore important that employers accept and raise awareness of these entitlements in order to ensure that the perceived support on offer to working families and the objective of staff retention becomes a reality.