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Lack of protection for pregnant workers

Pregnancy

It is claimed that one in every nine mothers who returns to work after pregnancy is dismissed from their job. A survey in 2018 by Mumsnet found that 96% of women considered that having children was harmful to a woman’s career. How can this happen when we are meant to have equality laws?

As an employment lawyer assisting claimants to bring claims, advising on settlement agreements and advising employers on how to act fairly, I am not at all surprised at the data that has been quoted.

At the moment, an employer cannot treat a woman less favourably by reason of the fact that she is pregnant or is taking/has taken maternity leave. Few people would argue with that. However, how does a woman go about proving that her treatment has been caused by the fact that she is having a baby or has had one? How can she go about compiling evidence to support her case?

In one case that I encountered, an employer told a returning mother within her first hour of being back from maternity leave that she had the worst attendance record he had ever seen. This was despite the fact that all but 3 of her absences in the 18 months prior to her going on maternity leave were due to pregnancy related illnesses or emergency time off to care for a dependent. The tribunal found that his comment was unrelated to her pregnancy or maternity leave. They found he was giving her ‘advice’. The Employment Appeal Tribunal felt the tribunal was entitled to make this finding and upheld the decision. Such are the hurdles that pregnant women face.

It would be wrong to tar all employers with the same brush. Sometimes there will genuinely be a situation where the role carried out by the pregnant employee has become surplus to requirements and no matter what alternatives the employer considers, there is no practical way of retaining the employee in the workforce.

Whilst I have encountered situations where this has happened for entirely genuine reasons, I have discovered many situations where claimants appear to have been “managed out” while they have been on maternity leave so that when they come back to work, they have been subtly demoted or left with a fraction of their previous responsibilities.

The Government’s latest proposals seek to tackle the practice of making redundant an employee who returns to work after maternity leave either immediately upon her return or within a few months thereafter.

The scenario is played out regularly. Julia tells her employer she is expecting a baby. Her bosses congratulate her and say how happy they are for her. As she works towards the baby’s due date, her workload reduces and her tasks are gradually given to others. She takes her statutory right to maternity leave and returns to work after 9-12 months. When she returns, she is told by HR that she will be doing the same job as before but her line management has changed and she now reports directly to Martin, who joined the company originally as her maternity cover.

Three months later, HR tells Julia that her role is at risk of redundancy. They have an off the record conversation where they offer her an extra 3 months’ gross pay tax free on top of her statutory redundancy pay and notice pay if she will sign a settlement agreement giving up any claims. Julia is very upset and feels it is a sham but is conscious that the money will come in handy, particularly with childcare costs being so high. She takes legal advice and reluctantly signs a settlement agreement bringing her employment to an end in the process.

It will be interesting to see how the Government’s proposals will work in practice. What about situations where a workplace is closing – surely there would have to be a right to make the employee redundant in that situation?

Giving employees extra rights will only be worthwhile if the employee has a means to effectively enforce them. While access to justice remains a challenge and while employers can buy off an employee’s rights for relatively modest sums, the situation will not really change.

The challenge goes hand in hand with the difficulties new mothers face when they seek flexible working arrangements on returning to work. The laws governing flexible working are arguably not fit for purpose, as an employer can find it relatively easy to justify a refusal and the penalties for unreasonably refusing a request are hardly prohibitive. Sometimes it will be the employee who decides she cannot return to her job because the lack of flexibility combined with huge childcare costs renders it impossible for her.

The Government has launched a 10 week consultation on its proposals. It must be hoped that they listen to every angle and take on board concerns from people who have been involved in the process directly. Until then, and if previous years’ statistics are to be relied upon, we face another year of over 50,000 mothers or pregnant women losing their jobs.

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