Business, Innovation and Skills CommitteeWritten evidence submitted by Maternity Action

1. Executive Summary

1.1 In 2005, an estimated 30,000 women each year lost their jobs as a result of pregnancy discrimination. Pregnancy discrimination has increased since the economic downturn. Women who lose their jobs as a result of pregnancy discrimination tend to experience a significant drop in income.

1.2 Pregnancy discrimination includes unfair redundancy processes, poor health and safety protection, unfair performance management processes and blatant cases of unfair dismissal.

1.3 Of those women who lost their jobs as a result of pregnancy discrimination, 8% pursued formal action and only 3% took their claims to the employment tribunal. Women face significant barriers to exercising their rights including: competing demands of motherhood, access to advice services, employment tribunal fees, the abolition of the questionnaire procedures and negative attitudes towards maternity rights.

1.4 Maternity Action recommends: an investigation into pregnancy discrimination following the economic downturn; a focus on prevention; adequate funding for advice agencies; dropping planned employment tribunal fees; reinstating the discrimination questionnaire process; and clear statements from Government on the value of maternity and parental rights to families and the economy.

2. About Maternity Action

2.1 Maternity Action is a national charity working to challenge inequality and promote the health and wellbeing of all pregnant women, new mothers and their families.

2.2 Maternity Action provides online information and telephone advice on maternity rights at work and maternity benefits. Each month, parents download 30,000 information sheets from our website and we answer over 200 advice calls.

2.3 Maternity Action leads on the Valuing Maternity campaign.1 This campaign is calling on the Government to champion pregnant women and new mothers during the recession and has support from 20 voluntary organisations, unions and health professional organisations.

3. Legal Protection for Pregnant Women and New Mothers at Work

3.1 The Equality Act 2010 states that it is unlawful discrimination to treat a woman less favourably on the grounds of her pregnancy or because she wants to take or has taken maternity leave. To show discrimination a woman does not have to compare herself to how a man might have been treated. She must show that “but for” her pregnancy she would not have been dismissed or treated less favourably. All employees, casual workers, agency workers, freelancers and self-employed women are protected by discrimination law from day one of their employment.

3.2 The Employment Rights Act 1996 s99 and Maternity and Parental Leave etc Regulations 1999 reg 19 protect employees from detriment or dismissal on the grounds of pregnancy or maternity leave. This applies from day one of their employment.

4. Nature and Incidence of Pregnancy Discrimination

4.1 The 2005 Equal Opportunities Commission (EOC) investigation into discrimination against new and expectant mothers in the workplace is the most recent national research on the nature and incidence of pregnancy discrimination.2 Two investigations by the Equality and Human Rights Commission have identified significant problems of pregnancy discrimination in specific industries: the finance sector (2009) and the meat and poultry processing industry (2010).

4.2 The EOC investigation found that pregnancy discrimination was widespread and had a significant impact on women’s workforce participation. Half of all pregnant women and new mothers in the workforce had experienced some form of pregnancy discrimination. An estimated 30,000 women each year lost their jobs as a result of pregnancy discrimination. This is just under 8% of all pregnant women in the workforce.

4.3 The EOC investigation found that women who lost their jobs due to pregnancy discrimination experienced an average 5% reduction in their hourly rate when finding a new job. This decreased by 14% for women on low incomes. Women who lost their jobs due to pregnancy discrimination missed out on a total of £12 million in maternity pay.

4.4 The Government is not monitoring the incidence of pregnancy discrimination so no current national figures are available. There are strong indications that the incidence of pregnancy discrimination has increased significantly since the economic downturn. Maternity Action has experienced a substantial increase in demand for advice and information in recent years and so have other voluntary sector agencies and employment law firms.

4.5 The following discussion focuses on pregnancy discrimination resulting in women losing their jobs. All case studies are calls to the Maternity Action advice line.

Unfair redundancy processes

4.6 Since the economic downturn, there has been a growing problem of unfair and unlawful selection of pregnant women and new mothers for redundancy. This has prompted the Equality and Human Rights Commission and ACAS to release guidance for employers on managing maternity and redundancy.3

4.7 Women are encountering criteria for selection which are discriminatory. For example:

On the day Jane returned from maternity leave, her employers gave her maternity cover a permanent position at the company. Just over a month later, they announced that all employees in her department were at risk of redundancy due to a re-structure across the company. The selection criterion chosen to decide who would be offered the remaining jobs was performance over the previous year—when Jane was on maternity leave. Jane was selected for redundancy based on this assessment and told that there were no other jobs available with the company.

4.8 Redundancy processes are often opaque. It can be difficult for women to prove that they have been unfairly selected for redundancy even where there are strong indications that this has occurred.

4.9 Under Regulation 10 of the Maternity and Parental Leave etc Regulations 1999, women who are made redundant while on maternity leave should be offered any suitable alternative vacancy, without interview. This regulation is intended to reduce the risk of redundancy during maternity leave and avoid women having to participate in selection processes during maternity leave.

4.10 Increasingly, employers are undertaking restructures and recruiting to the new posts prior to issuing redundancy notices. Regulation 10 provides limited protection prior to issue of a redundancy notice. As a result, women seeking to retain a job with their current employer during a restructure are compelled to participate in selection processes during maternity leave. This affects the health and wellbeing of mother and baby and women can be significantly disadvantaged in the selection process.

4.11 Lucila’s department was being restructured with four existing posts at her level being deleted and two new posts created. She was told that selection for the two new posts would be based entirely on performance in an interview. She argued that she should be offered one of the new posts as a suitable alternative but was told by her employer that because at that stage her job was “at risk” (rather than having been made redundant) she must go through the interview process. Her colleagues in work were offered interview training and given half a day in work to prepare for the interview.

Poor health and safety protection

4.12 Pregnant women and new mothers are encountering unsatisfactory health and safety protections at work. This leaves women to choose between remaining in an unsafe working environment, taking long periods of sick leave or leaving this job; all of which can have long term effects on their income and health and wellbeing.

4.13 Anita worked in a care home for children with challenging behaviour. Four days after notifying her employer she was told that she was suspended for the rest of her pregnancy without pay; no risk assessment had been carried out. When she questioned her rights under health and safety law, she was told by her employers that they were aware of the law but would find a way round it and that she “should be glad she’s got a job to go back to”. She was also told that if she was considering further action against them she should think about how she would feel when she’d “waited months for the tribunal, lost her job was stressed out and had a miscarriage”.

4.14 Dhanwant worked as an IT trainer for a large company and had to carry around equipment for training sessions and set up IT systems; both very physical tasks. Following her risk assessment, she was told not to do these tasks whilst she was pregnant. In practice this proved impossible as no alternatives were put in place. Four months into her pregnancy, she started to haemorrhage and was signed off sick from work for two weeks. The haemorrhaging was attributed to the physical work she had been doing.

Unfair performance management

4.15 Women are reporting performance management processes which are unfounded and which follow on from announcement of their pregnancies.

4.16 Denise had worked for a small estate agent for a few years and had always had a good working relationship with her employers. Immediately after giving them notice of her pregnancy and that she would take six months maternity leave, she received an email from her boss telling her that disciplinary action was being taken against her. The issues outlined had not previously been raised with her. From that time, she was also reprimanded constantly, sometimes about duties that did not fall within her job description. Her employer looked through her desk, read her emails and positioned the security camera on her desk. He has also withheld commissions due to her (with no explanation) and delayed paying her. She was signed off from work with stress.

Unfair dismissal

4.17 Women are reporting blatant cases of pregnancy discrimination which result in women losing their jobs. For example: a woman received her P45 in the mail during maternity leave, without explanation; another woman was unable to arrange her return to work after maternity leave as her employer did not respond to her repeated phonecalls.

5. Barriers to Exercising Rights

5.1 The EOC investigation found that very few women took action following pregnancy discrimination. Of those who lost their jobs as a result of pregnancy discrimination, 71% took no action, not even seeking advice. 8% took formal action, such as submitting a grievance. Only 3% took a claim to the employment tribunal.

5.2 The EOC investigation found that relatively few women were aware of their maternity rights. Of those who lost their job as a result of pregnancy discrimination, 45% took no action as they were not aware of their rights.

Competing priorities

5.3 Pregnant women and new mothers face significant demands on their time, money and emotional resources from their pregnancy and new baby. This is a significant barrier to women pursuing formal action against their employer.

Access to advice services

5.4 Cuts to advice services are limiting women’s ability to obtain assistance to resolve a dispute at work. There have been substantial cuts to generalist advice services, such as Citizens Advice Bureaux, as well as specialist services.

5.5 Maternity Action provides specialist online information and telephone advice on maternity rights at work and maternity benefits. Each month, parents download 30,000 information sheets from our website and we answer over 200 advice calls. We are facing growing demand for our services and we lack the resources to meet this. We currently receive 21 times more calls than we are able to answer. Maternity Action receives no Government funding to provide our information and advice service.

Employment tribunal fees

5.6 From mid-2013, women will face fees of £1,200 to take a pregnancy discrimination claim to the employment tribunal. There are currently no fees for employment tribunal claims. We do not believe that these fees will have the effect of deterring unfounded or vexatious claimants. As all discrimination claims have an element of uncertainty, the fees will effectively deter women with well-founded pregnancy discrimination claims from taking action in the tribunal. Women’s inability to afford a tribunal claim will also reduce their negotiating position in conciliation proceedings.4

Questionnaire procedure

5.7 The Government has decided to remove the questionnaire procedure in discrimination claims. This will reduce women’s capacity to determine the likelihood of their claim succeeding and further deter them from pursuing formal action.

Negative attitudes towards maternity rights

5.8 In recent years, media discussion of maternity and parental rights in the media has tended to characterise these rights as a burden on business and unnecessary red tape. This negative attitude towards maternity rights has given a level of social acceptability to pregnancy discrimination. Negative attitudes towards maternity rights have been expressed by individuals within and close to Government. These include comments by the then Director of Strategy at Number 10, Steven Hilton, on the desirability of abolishing maternity leave (2011); and the Free Enterprise Group, associated with Conservative MPs, on exempting small employers from maternity leave (2012).

6. Recommendations

6.1 There is an urgent need for an investigation into pregnancy discrimination to document the nature and incidence of discrimination following the economic downturn.

6.2 The Government should intervene to prevent pregnancy discrimination rather than leaving it to individual women to take action when incidents occur.

6.3 Specialist and general advice services should be adequately funded to ensure that women can access information and advice about maternity rights.

6.4 Employment tribunal fees for pregnancy discrimination claims should not be introduced.

6.5 The discrimination questionnaire procedure should be retained.

6.6 The Government should make clear and unambiguous public statements about the value of maternity and parental rights to families and the economy as a whole, and publicly challenge any criticism of maternity rights.

24 December 2012