Back in March 2016 I posted a piece querying the headlines over an Equalities and Human Rights Commission report on maternity and pregnancy discrimination at work https://www.employmentlawworldview.com/startling-statistics-published-on-maternity-related-discrimination-in-the-uk-but-dont-believe-everything-you-read/. The short point was that the report did not justify the apocalyptic headlines about the treatment of women who were pregnant or on maternity leave. Looked at close up, many of its findings of “discrimination and negative treatment” were based on the women’s perception, not established instances of unlawful treatment by employers. There was nothing in the report about what proportion of maternity rights cases succeeded in the Employment Tribunal which suggested that it was any higher than discrimination cases generally.

Nonetheless, those headlines appear to have been swallowed whole by Maternity Action in its report last week, Unfair Redundancies During Pregnancy, Maternity Leave and Return to Work. It begins with the bold assertion that the EHRC report showed “that the rate of pregnancy and maternity-related discrimination is very high“, which actually it didn’t. It also elides the mother “feeling” forced out of her role with her actually being so – of the headline “11% of mothers lost their jobs as a result of maternity discrimination each year“, only 2% were actually dismissed according to the EHRC and there is no analysis of whether the others who left were genuinely discriminated against or just unable to square their childcare commitments with their job, without any fault at all on the part of the employer.

That might therefore be seen as a rather shaky foundation for legislative change and the Government confirmed to the Alliance for Maternity Rights last month that no such change is proposed. Instead it sought “other ideas” to address the question. Last week’s report is Maternity Action’s response to that. Leaving aside that shaky factual premise and some rather random punctuation, here are the main points:

  • The report contains a number of short case studies but these are often based on the subject’s beliefs or feelings or worries rather than the employer’s intentions or actions, and do not follow through with what the answer would be or why. One ends with “her employer was a very large company with a good redundancy package so she felt she was being bought off“, which, as criticisms go, seems a little harsh on the employer.
  • How about this as a new approach to legal liability – “To provide women with effective legal protection against unfair redundancy during pregnancy and new motherhood, the law … should remove the obligation on individual women to prove unfavourable treatment by their employer“. What?
  • The principal recommendation of the MA report is to adopt the German system (what Brexit?) of preventing the employer making a woman redundant at any time between notification of her pregnancy and six months after her return (except in very limited circumstances such as the closure of the business altogether). This has at least two possible adverse consequences, i.e., either that redundancies are delayed for long after the point where they ought to have been made, at consequent cost to the business, or that someone else is made redundant instead, someone who is potentially a stronger candidate for retention in any objective selection exercise than the woman in question. The issue of whether that dismissal would be fair either legally or morally is not addressed.
  • As a secondary response, MA suggests applying the Regulation 10 MAPLE rules (absolute priority for suitable vacancies) not just for redundancies during maternity leave as at present, but again from first notification of pregnancy to six months post return. This is obviously easier for employers because it does at least allow ordinary redundancy selection decisions and processes to continue, and is triggered only if there is a suitable vacancy and so does not require anyone else to lose his/her job instead.
  • Employers should be encouraged to evaluate the retention rates for women one year after returning from maternity leave as part of their gender pay gap analysis“; and
  • The Government should extend the window for making a maternity-related discrimination claim to the Employment Tribunal to six months over that same extended period from first notification to six months after the return to work. The rationale for this is that bringing a claim within the three month window generally applicable “can be difficult for women who have been made redundant in the late stages of their pregnancy or shortly after giving birth” because it is all procedurally very complicated and they may also be experiencing a loss of income if receiving SMP only. It is fairly obvious that this rationale does not really bite for most of the pregnancy or after the return to work, so this might be seen as a little aspirational. After all, most unfair dismissal claims are made when the claimant is without an income anyway. However, the real problem with this proposition is that it does not address at all the vast majority of the reasons for which women who feel themselves disadvantaged by redundancy or other maternity or pregnancy-related detriment actually said that they didn’t bring claims or grievances. These are identified from the EHRC report as creating bad feeling with their employer or colleagues, a belief that nothing will change, lack of information, feeling guilty, the process being too daunting, not wanting to damage their prospects and not feeling that they had a good enough case.