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By Eric Gilligan, Partner 

The Department for Business, Innovation and Skills (BIS) and Equality and Human Rights Commission (EHRC) has recently published research on the prevalence and nature of pregnancy and maternity-related disadvantage in the workplace.  At first glance the results based on survey interviews with over 3000 mothers and a similar number of employers make grim reading for those concerned about workplace equality. 

In an article published in the Journal of the Law Society of Scotland on 18 April headed “Maternity: still black marks” Helen Miller of the  EHRC states that “three out of four Scottish Working mothers experience pregnancy and maternity discrimination”. Dig a little deeper however and the picture is somewhat less emphatic. The EHRC “Summary of Key Findings” document states that “overall three in four mothers (77%) said they had a negative or possibly discriminatory experience during pregnancy, maternity leave, and/or return from maternity leave”. The report also indicates that:-

• One in nine mothers (11%) reported that they felt forced to leave their job. This included those being dismissed (1%); made compulsorily redundant, where others in the workplace were not (1%) or feeling treated so poorly that    they felt they had to leave their job (9%).
• One in five mothers (20%) said they experienced harassment or negative comments related to pregnancy or flexible working from their employer/colleagues.
• One in 25 mothers (4%) left their jobs because of risks not being tackled.
• One in ten (10%) mothers were discouraged from attending antenatal appointments.

The report goes on to highlight the apparent good news that over two thirds of mothers (68%) submitted a flexible working request and around three in four of these mothers reported that this was granted. Before we can take anything positive from this finding however we are told that around half of mothers (51%) who had their flexible working request approved said they felt it resulted in negative consequences.

All of these findings are then extrapolated to the general population to indicate that there is a crisis of maternity discrimination in UK workplaces providing “cause for urgent action”. In a press release on 5 April, Caroline Waters, Deputy Chair of the EHRC went further asserting that “the findings are a wake-up call for UK management to pull its socks up and lose no time in doing so….. It is important that these findings help trigger action to turn the tide on the bad practices they expose.”

Whilst we should not dismiss the perceptions of the women reported in the research it does need to be recognised that subjective accounts do not form a proper basis for an inference that pregnancy and maternity related discrimination are rife in the workplace. To be fair to the EHRC in the research documents themselves this is acknowledged to some extent with the statement that “Mothers’ experiences do not necessarily fall under the legal definition of discrimination. Only an Employment Tribunal can determine whether unlawful discrimination or unfair dismissal has occurred” The detail of the report reveals that in some cases the survey asked whether the mothers felt their treatment was due to their pregnancy or maternity leave, in others, although the survey captured whether or not a mother had experienced a particular situation following their pregnancy (e.g. dismissal), it did not actually ask whether the mother believed it was because of their pregnancy. This lack of a causal connection further undermines claims that mothers routinely “experience” pregnancy and maternity discrimination.

As a result of the findings in the research the EHRC has identified 6 areas for action including “leadership for change”, improving employer practice, improving access to information and advice, improving health and safety in the workplace, improving access to justice (including abolition of Tribunal fees and extending the period for the lodging of claims) and monitoring progress. The UK Government has accepted many of them “in principle” but has firmly rejected the proposal in relation to Employment Tribunal Claims.

While many of these recommendations might be sound it might also be suggested that both employers and working women would benefit from a more rigorous and balanced analysis of the actual extent of maternity related disadvantage in the workplace, and a better focus on the formulation of practical measures to address it. Views and feedback welcome!

eric.gilligan@stronachs.com

Chambers UK 2106

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