Pregnancy and maternity discrimination Contents

Background

Laws and protections for new and expectant mothers in the workplace

14.Employment law and guidance relating to pregnancy and maternity is set out in a number of different Acts, regulations, codes and other guidance. Employers are responsible for keeping up to date with their obligations towards new and expectant mothers who work for them.

15. The law in this area is made more complex by the fact that different rights and protections are available to different women depending on their employment status and length of service.2 Women who are classed as employees have different rights to those classed as workers, and some of those rights are not available until the woman has worked in that role for a certain number of weeks. The main rights and entitlements of employees and workers are outlined below.

Rights for all employees and workers

Protection from discrimination

16.All women are entitled to protection from discrimination by their employer because of their pregnancy or maternity. Under the Equality Act 2010, it is unlawful for an employer to discriminate against a woman because of her pregnancy, pregnancy-related sickness or maternity leave.3 Discriminatory treatment can include dismissal, redundancy, removal of responsibilities, denial of a bonus and being overlooked for promotion. Some forms of harassment may also be classed as sex discrimination.4

A safe working environment

17.Employers have responsibilities under health and safety law to assess the health and safety risks to those working for them. This general risk assessment should include consideration of any specific risks to females of childbearing age who could become pregnant, and any risks to new and expectant mothers.5 These risks could be from any process, working conditions, or physical, biological or chemical agents. Where risks are identified, the employer must put in place appropriate health and safety measures to control those risks.

18.If specific pregnancy or maternity-related risks are identified in the general risk assessment, the employer must take action to address those risks when they are notified in writing that a woman who works for them is a new or expectant mother, or that she is breastfeeding. However, employers are not legally required to conduct a specific, separate risk assessment at this point. If the risk cannot be avoided using preventive and protective measures, then the employer must take action to remove, reduce or control the risk. If it cannot be removed, employers must take one of the following actions in the order specified:

Action 1 - Temporarily adjust (the employee’s) working conditions and/or hours of work; or if that is not possible

Action 2 - Offer her suitable alternative work (at the same rate of pay) if available, or if that is not feasible;

Action 3 - Suspend her from work on paid leave for as long as necessary, to protect her health and safety, and that of her child.6

Rest facilities

19.Employers are required to provide suitable rest facilities for all pregnant and breastfeeding workers, but there is no legal duty to provide a place to breastfeed or store milk.7

Employees

Pregnancy and maternity-related rights

20.Under the Employment Rights Act 1996, an employee is defined as ‘an individual who has entered into or works under … a contract of employment’.8 Employees are entitled to further pregnancy and maternity-related rights in addition to the rights outlined above.9 These include:

Right to request flexible working

21.Another right that is available to employees not only during pregnancy and early maternity, but at any time (after 26 weeks’ continuous employment) is the right to request flexible working.16 Employers must consider such requests in a reasonable manner and within a reasonable period of time.17 If the request is refused, the relevant notification must set out clear business reasons for the denial and the employee is unable to re-apply within the next 12 months.18

22.We recently looked at flexible working in our Gender Pay Gap Report.19 A key recommendation of that Report was that that all jobs should be available to work flexibly unless an employer has an immediate and continuing business case against doing so.20

Workers

23.The Gov.uk web pages on employment status do not provide an overarching definition for a worker, but advise that a person is generally classed as a worker if:

24.Workers do not have access to the same rights as employees and there are also differences between the rights available to different types of worker, such as casual, agency and zero-hours workers.22 As outlined above, all workers are entitled to protection from discrimination and to a safe working environment. However, they are not usually entitled to: paid time off for antenatal appointments; maternity or shared parental leave; the right to request flexible working; or protection against unfair dismissal. One exception is that agency workers who have been in continuous employment for 12 weeks are entitled to paid time off for antenatal appointments.23 This right was implemented as a result of an EU regulation and so may be subject to change when the UK leaves the EU.

BIS/EHRC research and follow-up

Key research findings

25.The BIS/EHRC research revealed some worrying findings about the experiences of new and expectant mothers in the workplace. More than three quarters (77%) of the women surveyed reported at least one potentially discriminatory or negative experience, and 61% reported two or more such experiences.24 In contrast, 89% of the employers surveyed said that it was easy to protect employees from being treated unfavourably because they were pregnant or on maternity leave.25 This suggests a mismatch between employees’ experience and employers’ understanding of discrimination and the extent to which it is happening.

26.Examples of unfavourable or discriminatory experiences reported in the research are given below:

27.Overall, women reported that negative and possibly discriminatory experiences were more likely to happen during pregnancy than on maternity leave or afterwards. However, women were more likely to report feeling forced to leave their job once they had returned to work.27 Length of service and occupation were identified as key drivers of negative or discriminatory treatment. Women with five years or more of service were less likely to say they had experienced poor treatment and those with two to five years’ service were most likely to do so. The occupations in which women were most affected were the caring, leisure and other service occupations.28

EHRC recommendations and Government response

28.The EHRC made a number of recommendations to the Government about how the discrimination uncovered by the BIS/EHRC research should be tackled. These focused strongly on raising awareness about employees’ rights and employers’ obligations, increasing access to information and encouraging behaviour change. The recommendations were grouped into six broad areas, which were set out by the EHRC as follows:

Leadership for change so that employers attract the best talent, create the conditions for their staff to perform well, and avoid the loss of skills and experience which can result from misconceptions and poor practice in relation to pregnant workers and new mothers.

Improving employer practice to promote family-friendly workplaces, effective management and open communication.

Improving access to information and advice so that women and employers understand their rights and obligations.

Improving health and safety management in the workplace so that employers manage risks effectively and women are not forced to choose between their job and their health or the health of their unborn child.

Improving access to justice by removing barriers to women raising complaints.

Monitoring progress to track the pace of change towards creating fairer workplaces.29

29.The Government’s response accepted or accepted in principle most of the recommendations, but did not set out any specific targets, timelines or detailed plans about the actions that the Government would take.30

30.There have been mixed reactions to the EHRC’s recommendations and the Government’s response. Some witnesses felt that the approach set out was well-rooted in the findings, whereas others were more critical. In the following chapters we look in more detail at the approach being taken forward and ways in which it might be improved.


2 For more information on employment status, go to: www.gov.uk, Employment status, accessed on 01 July 2016.

3 Protection is also provided under EU law: the Recast Directive 2006/54/EC (which replaces the Equal Treatment Directive 76/207/EEC) prohibits less favourable treatment of women related to pregnancy or maternity leave. Subsequent case law in the Court of Justice of the European Union provides further guidance on this issue (see Recitals 23 and 25 of the Recast Directive).

5 Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)

6 Under the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242). Health and Safety Executive, Guidance: new and expectant mothers - the law, accessed on 1 July 2016.

7 Under the Workplace (Health and Safety and Welfare) Regulations 1992 (SI 1992/3004). Health and Safety Executive, Guidance: new and expectant mothers - the law, accessed on 1 July 2016.

8 Employment Rights Act 1996, section 230(1). For an explanation of the criteria for qualifying as an employee, go to: www.gov.uk, Employment status, accessed on 01 July 2016.However, the conduct of the parties prevails over definitions within the contract of employment, and employment status can be challenged in certain cases: see for example, Ferguson v John Dawson & Partners (Contractors) Ltd) [1976] 1 WLR 1213, Megaw LJ; Troutbeck SA v White and Todd [2013] CA EWCA Civ 1171; and Autoclenz Limited v Belcher and others [2011] UKSC 41.

9 For an explanation of employees’ rights, go to: www.gov.uk, Employment status, accessed on 01 July 2016.

10 Employment Rights Act 1996, section 99.

11 Employment Rights Act 1996, section 55

12 Employment Rights Act 1996, sections 71-73. For more information on statutory maternity leave, go to: www.gov.uk, Maternity pay and leave, accessed on 01 July 2016.

13 Shared Parental Leave Regulations 2014 (SI 2014/3050).

14 For more information on eligibility for statutory maternity pay, go to: www.gov.uk, Maternity pay and leave, accessed on 01 July 2016.

15 For more information on eligibility for maternity allowance, go to: www.gov.uk Maternity allowance, accessed on 01 July 2016.

16 Employment Rights Act 1996, section 80F.

17 Employment Rights Act 1996, section 80G. See ACAS statutory code of practice on the meaning of ‘reasonable’: www.acas.org.uk, Code of Practice 5: Handling in a reasonable manner requests to work flexibly, accessed on 01 July 2016.

18 Employment Rights Act 1996, sections 80F and 80G.

19 Women and Equalities Committee, Second Report of Session 2015-16, Gender Pay Gap, HC 584

20 Recommendation 134

21 www.gov.uk, Employment status, accessed on 01 July 2016.

22 For further information about criteria and entitlements for different workers, go to: www.gov.uk, Employment status, accessed on 01 July 2016.

23 Under the Agency Workers Regulations 2010, which implemented Council Directive (EC) 2008/104 on Temporary Agency Work. For an outline of the rights of / responsibilities towards agency workers, see: www.gov.uk, Your rights as an agency worker, accessed on 01 July 2016.

25 Ibid, p. 41

28 Ibid, p. 54




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4 August 2016