Pregnancy and maternity discrimination Contents

1Are greater protections required?

Rising discrimination and key concerns

31.Many witnesses expressed shock and concern at the level of discrimination revealed by the BIS/EHRC research.31 Rosalind Bragg of Maternity Action told us that it showed a “significant increase in rates of pregnancy discrimination” in the past decade.32 Catherine Rayner of the Discrimination Law Association highlighted that there was evidence of not just discriminatory treatment but “a large spread of probably unlawful treatment.”33 Some witnesses suggested that greater protection from discrimination was needed, including through legislative change.34 Three areas flagged up by witnesses as being of particular concern were:

In this chapter we look at the level of discrimination against, and poor treatment of, women in these particular areas and examine whether additional protections, such as changes in the law, are needed to tackle this discrimination.

Health and safety

Concerning findings

32.The BIS/EHRC research revealed some concerning findings about the extent to which health and safety obligations were being met, showing that:

Rosalind Bragg told us that these findings were consistent with what Maternity Action had found through its advice line and that it “would like to look at more active ways to address this problem.”36

33.We also heard some troubling stories about women’s experiences in the workplace when their employer did not do a health and safety assessment and/or adjust work practices to accommodate their needs. Sarah Barton, Chair of Portsmouth and South East Hampshire Maternity Services Liaison Committee, held two focus group discussions with women from Portsmouth on these issues. Her summary of the discussions stated that in one group of eight women, only two said their employer had conducted a health and safety assessment during their pregnancy. She also detailed a distressing example of a supermarket worker who had been left to wet herself while working at a checkout because there had been no risk assessment and no adjustment to how her breaks were managed.37

Worst-affected groups

34.Detailed analysis of the research results showed that a greater share of mothers in caring, leisure and other services (54%) and those on agency, casual or zero hours contracts (50%) reported a risk or impact to their health and welfare.38 Mothers who left their employer as a result of risks not being resolved were more likely than average to:

Improving health and safety outcomes

EHRC recommendations and Government response

35.The EHRC responded to the findings by recommending that the Health and Safety Executive (HSE) should “address the issues raised in the research findings about health and safety in particular industry sectors and occupational groups by working with stakeholders in these areas to improve practice.” It also recommended that the HSE should:

36.The Government responded by stating that the HSE accepted the recommendation and wanted to make sure that good practice was shared across all sectors. The HSE has agreed to “take forward these recommendations, review current guidance and work through existing partnership channels, particularly in sectors highlighted in the research report”.41

Risk assessments

37.As outlined in the Background section, employers are not required to conduct a risk assessment when they are informed that a woman who works for them is pregnant, has given birth in the past six months or is breastfeeding. However, if they have identified any risks to new and expectant mothers in their general risk assessment, they are obliged to take action to remove, reduce or control those risks.42 For example, fire services know from their general risk assessments that attending operational incidents creates risks for pregnant and breastfeeding firefighters from toxin inhalation, which could be passed on to their babies. Once they are informed that a firefighter is pregnant they must take action to ensure that she does not attend operational incidents until this risk has passed.

38.There was fairly wide agreement among witnesses that if risks were to be identified and managed, employers needed to discuss the risks with the worker or employee when they were informed that she was pregnant, had given birth in the past six months or was breastfeeding. Views differed on how best to ensure that this happened and whether an individual risk assessment needed to be conducted at this point. Sue Coe of the EHRC said:

We saw that 38% of women said that, when they told their employer they were pregnant, no discussion happened at all about health and safety. That is a real concern to us because, even if your conversation is, “We do not feel that there is any risk to you,” then at least it allows the woman to engage in that conversation, and put forward information that she might have about her health or particular conditions that she may be experiencing, so that those risks could be tackled. As I said, we do not think there needs to be a new duty; we just think that employers need to get better at talking to women about health and safety, throughout their pregnancy.43

39.Siobhan Endean of Unite suggested that if the generic risk assessment “understands and reflects that there might be pregnant workers in the workplace…it does not necessarily matter whether or not women have declared that they are pregnant.”44 Conversely, Maternity Action argued that the general risk assessment is “woefully inadequate in ensuring a safe working environment for pregnant women and new mothers”, adding:

Because there is no requirement to consider each individual pregnant employee in the context of her specific work, many employers believe their current generic risk assessments are appropriate. As a result they are not prompted to make any alterations in respect of individual employees, even where the individual circumstances of the woman would warrant adjustments to be made. 45

40.Maternity Action concluded that it would not be “overly burdensome” for employers to be required to conduct an individual assessment for new and expectant mothers, as individual assessments were “commonplace”. It recommended that the HSE should commit to including this requirement in its guidance to employers and should ensure that it is properly enforced.46 We discuss enforcement in more detail in the final chapter. Maternity Action also suggested that model risk assessments for employers, including specific risk assessments for particular sectors, would be “very helpful for employers – especially for SMEs”.47

41.When we questioned why the EHRC had not recommended obliging employers to conduct a risk assessment at this time, Sue Coe told us that employers had previously been obliged to do this and that even fewer risk assessments had been conducted then. She argued that the idea of conducting an assessment might in itself be a barrier and that it was better to encourage conversations between employers and women. She said:

Quite often, the adjustments that employers have to make are very simple, in terms of getting a chair and moving start times. It is not technical rocket science. Too often, employers are seeing it as a confusing area and taking a very technical tick-box approach. What we want to drive here is conversations between women and employers ongoing throughout their pregnancy.48

42.The Minister said that “it would be a retrograde step to introduce a specific separate risk assessment” because that would somehow imply that “the general risk assessment should not include looking at the situation of pregnant women”. He added that the obligation should remain within the general risk assessment, and highlighted the importance of sector-specific and occupation-specific guidance, particularly for higher-risk roles.49

43.We are disappointed that the EHRC and the Government do not think it necessary to place a duty on employers to conduct an individual risk assessment for new and expectant mothers. Such a requirement would help employers to provide a safe working environment and would not be a great burden. We do not accept the Minister’s assertion that this requirement would imply that employers no longer had to consider the risks to new and expectant mothers in their general risk assessment. We are not convinced that the EHRC’s recommended approach of encouraging employers to have conversations with women about risks is robust enough. While it may improve compliance among well-meaning employers, it is unlikely to persuade less scrupulous employers to meet their responsibilities.

44.Employers should be required to undertake an individual risk assessment when they are informed that a woman who works for them is pregnant, has given birth in the past six months or is breastfeeding. The Health and Safety Executive should include this requirement in its guidance to employers by the end of 2016 and should ensure that it is properly enforced. It should also support employers in meeting this requirement by ensuring that model risk assessments for particular sectors and occupations are available to employers by the end of 2016.

Ensuring that risks are dealt with

45.An employer must place a new or expectant mother on paid leave if they identify a risk that cannot be managed. As we have noted, however, tens of thousands of women a year leave their job because pregnancy and maternity-related health and safety risks are not tackled. In addition, many women identify risks that their employer does not, some of which are not then dealt with.50 Maternity Action has suggested strengthening the onus on employers to find women a suitable alternative job, or place them on paid leave, if they are unable to remove identified risks.51 Rosalind Bragg told us:

[G]iven the extraordinary scale of the number of women who left their jobs as a result of an unsafe working environment, we think it would be useful to explore the Australian model of no-safe-job leave, in which a doctor or another clinician can certify that a job is unsafe for pregnant women and a woman is placed on paid leave unless the employer offers her a suitable alternative post. This would provide a very clear financial incentive for employers to swiftly find a suitable alternative job.52

46.Samantha Rye of the Fire Brigades Union emphasised the need to deal with risks promptly, but also highlighted the FBU’s concerns about employers unnecessarily removing pregnant women from their normal shift pattern and placing them in another role away from their team. A key concern was that some women were reluctant to disclose their pregnancy straight away, despite the risks of continuing their usual role, because of fears that this would happen to them. Another concern was the financial impact on those who had to make new childcare arrangements to fit the new shift pattern.53

47.We are particularly concerned by the BIS/EHRC research finding that up to 21,000 women a year left their job because pregnancy and maternity-related health and safety risks were not tackled. We are also mindful that it is important that employers are sensitive to the employee’s wishes when offering alternative work or paid leave.

48.It is imperative that new and expectant mothers who are concerned that their health and/or the health of their baby is being put at risk by their work have an easily accessible, formal mechanism to compel their employer to deal with such risks appropriately. There should also be a formal mechanism by which an employee can ask a doctor or midwife to confirm that specific risks at work need to be dealt with. The Government should consider how best to provide those mechanisms and commit to implementing them by the end of 2017.

Casual, agency and zero-hours workers

49.As set out in the Background, casual, agency and zero-hours workers do not have the same pregnancy and maternity entitlements as women who are classed as employees. Both Citizens Advice and Catherine Rayner of the Discrimination Law Association suggested that the number of women now in this kind of work may be one reason for the increase in pregnancy and maternity discrimination in the past 10 years.54 Citizens Advice stated that there had been “a 58% increase in the past decade in the number of people in temporary jobs because they are unable to find permanent work.”55 It suggested that “changes in working patterns and the use of agency staff … could mask discriminatory practices”.56

Different treatment

50.Catherine Rayner told us that many women faced “real difficulties because of their employment status.” She went on:

A lot of the rights that you will be looking at are focused on employees. There are huge swathes of women, particularly in some of the caring industries, who are treated not as employees but as workers and therefore do not necessarily access the rights.57

51.Even where such workers do have the same rights as employees, there is evidence that they are more likely to receive unfavourable treatment than other types of worker. As we have seen, although employers have the same health and safety obligations to all workers and employees, the BIS/EHRC research found that casual, agency and zero-hours workers were more likely to report a risk or impact to their health and welfare and to leave their employer as a result of health and safety risks not being resolved.58 Scarlet Harris of the TUC told us that some larger employers treated agency staff less favourably than employees. She said:

In some larger employers you will see good practices happening among professional women at the top, but they might be large organisations with women agency workers working lower down who are not afforded the same rights at all and are treated very differently.59

52.Working Families related some of the discrimination and poor practice affecting such workers that it had heard about through calls to its helpline, stating:

We have seen a number of instances of shift patterns or the number of hours of work offered being changed without agreement for women who are pregnant or returning from maternity leave. These women find it very difficult to protect their income and position, and may not be able to afford to return to work or find childcare to suit the new arrangement. Some of these women have zero hours contracts or even no written terms and conditions of employment, and others have been told that it is their employer’s right to change their terms and conditions.60

53.Citizens Advice suggested that the “increased job insecurity” experienced by such workers “impacted on [their] confidence in challenging discrimination and other workplace problems.”61

Are additional rights and protections needed for particular workers?

54.Siobhan Endean told us that Unite was “very concerned at the treatment of women who do not have permanent employment contracts, so temporary and agency workers, and the experience of women within those sectors. She went on to suggest that “remedial action” was needed and told us that there “absolutely needs to be some more legislation around the issue of agency and temporary workers.62 Catherine Rayner said that there was “an argument that the 26-week period for qualifying for some of the rights, such as the right to request flexible working, and some of the benefits ought to be looked at again.”63

55.When we asked the EHRC whether such workers needed more protection, Caroline Waters replied that the work it had done in relation to the cleaning sector suggested that many of those workers were more disadvantaged, often because they did not know their rights and/or because they were concerned they would be badly thought of if they raised an issue. She went on:

There are some perception things there and there are some actual, real gaps. Yes, I do think that that is an area that needs more work. We are working on that and there are things that can be done. Lots of agencies are great employers. We need to work with the ones that are not to get them to that standard.64

The EHRC did not make any specific recommendations to the Government about providing additional protection for such workers. No specific actions to improve outcomes for this group are set out in the approach being taken forward by the Government and the EHRC.

56.We are concerned by the evidence that new and expectant mothers who are casual, agency and zero-hours workers are: more likely to report a risk or impact to their health and welfare than other types of worker; more likely to leave their employer as a result of health and safety risks not being resolved; and less likely to feel confident about challenging discriminatory behaviour. We note that the EHRC has committed to work with employers to improve outcomes for this group, but we believe that additional rights and protections are also required.

57.We understand that there are reasons why new and expectant mothers who are casual, agency and zero-hours workers do not have the same day-one rights as employees. However, we see no reason why they should not be entitled to paid time off for antenatal appointments. The right to paid time off for antenatal appointments should be extended to workers within the next year. This right should be available after a short qualifying period.

58.Employers should not be able to avoid affording regular, long-term workers the same rights as employees because they have a different contract type. More pregnancy and maternity-related rights should be available to casual, agency and zero-hours workers after a suitable qualifying period of continuous employment. The Government should review the pregnancy and maternity-related rights available to workers and legislate to give greater parity between workers and employees in this regard. It should do this within the next two years.

Redundancy and job loss

Rising redundancies and job losses during pregnancy and maternity

59.As outlined in the previous chapter, 11% of the women surveyed reported being either dismissed, made compulsorily redundant, where others in their workplace were not, or treated so poorly that they felt they had to leave their job. Rosalind Bragg of Maternity Action highlighted that this was a significant increase on the 2005 figure. She said:

In 2005, 30,000 women lost their jobs as a result of pregnancy discrimination. The first findings in 2015 showed that 54,000 women lost their jobs as a result of pregnancy discrimination. 65

60.Key drivers of whether mothers felt forced to leave their job were length of service prior to maternity leave, and occupation. Mothers who had been in post for less than a year were twice as likely as average to say that they felt forced out of their job, whereas those with more than five years’ experience were half as likely to feel forced out. Mothers working in the skilled trades sector, such as chefs, gardeners, car mechanics and carpet fitters, were five times more likely than average to say that they had felt forced out.66

61.Siobhan Endean of Unite noted that if an employee suspected that they had lost their job because of their pregnancy or maternity, it might be difficult for them to obtain evidence that this was the case. She went on to suggest that legislative changes might make it easier to prevent discriminatory redundancies, stating:

We find it is very rare that people say, “I am sacking you because you are pregnant”, because obviously people know that is unlawful. What will happen is that you will be made redundant while you are pregnant or on maternity leave. If you strengthened the framework of legislation around redundancies, fewer women would fall through that net.67

Your Employment Settlement Service (YESS) Law said that employers who understood the law made women redundant after their return to work so that the protection provided under regulation 10 of the Maternity and Parental Leave Regulations 1999 did not apply.68 Regulation 10 provides that an employee who is made redundant during maternity leave is entitled to any existing suitable alternative work in preference to other employees, including those at risk of redundancy.69

Are changes in the law needed?

62.Several witnesses told us there was a need to increase protection against redundancy during pregnancy and early maternity.70 Maternity Action said that the “shocking number of women losing their jobs as a result of their pregnancy” identified the need for “further protection from unfair redundancy.”71 Your Employment Settlement Service (YESS) Law said that focusing on measures that would prevent women from being dismissed or treated so unfavourably that they felt forced out was a better solution than relying on enforcement action at tribunal.72

63.YESS Law described the system used in Germany to protect new and expectant mothers from redundancy, stating:

In Germany women are well protected from loss of employment due to dismissal - from the beginning of pregnancy until 4 months following childbirth (Schutzfrist) through a Kündigungsverbot, Dismissal Ban. Only in extremely rare exceptions are employers permitted to dismiss a pregnant employee during this time.73

64.YESS Law proposed that a similar model be adopted in the UK, with defined exceptions such as “severe financial difficulty for the employer, leading to multiple redundancies, and gross misconduct by the individual”. It added that the protection should be extended beyond the maternity leave period “as employers now commonly put an employee at risk of redundancy on her first day back from maternity leave (or within the first few weeks).”74 Academic Alexandra Heron also recommended that the German model be implemented, with an extension to six months after the woman’s return to work.75

65.An alternative approach of extending the protection currently provided under regulation 10 of the Maternity and Parental Leave Regulations 1999 was suggested by both Maternity Action and YESS Law. Maternity Action proposed extending it beyond maternity leave to include the period from notification of pregnancy through to six months after return to work.76 YESS Law suggested it could be extended even further, so that it would continue to apply for up to a year after return to work.77

66.The EHRC did not make any recommendations specifically on tackling the rising numbers of new and expectant mothers being made redundant or otherwise losing their job at this time. However, it did recommend that the Government work with it “to identify effective interventions” to “ensure that employers are aware of and comply with their legal obligations”, which the Government agreed to do in its response.78 Similarly, there were no wider recommendations to strengthen or extend the protection from discrimination and poor treatment provided in law. Instead, the recommendations were broad and few, focusing strongly on raising awareness about employees’ rights and employers’ obligations, increasing access to information and encouraging behaviour change. Caroline Waters, Deputy Chair of the EHRC, told us that this was because “the problem is mostly about lack of information, attitudes and behaviours … not about big-picture stuff”.79

67.The approach to tackling pregnancy and maternity discrimination set out in the EHRC’s recommendations and Government response has been criticised as being too weak.80 We consider the merits of this approach in the next chapter. Siobhan Endean of Unite suggested that “much clearer and stronger action by Government, employers and agencies” was needed to tackle pregnancy discrimination at work.81 She made two suggestions for strengthening the law in this area:

68.When we challenged the EHRC on the robustness of the approach it had set out in its recommendations, and asked whether the law needed to be changed, Caroline Waters replied:

What we absolutely believe is that the legislation is clear in all of these areas, but we are seeing those misinterpreted. Mostly, the evidence we have is that that is about people not understanding what their obligations are and women not being able to hold employers to account, because they do not understand their rights. We believe that, if you close that gap, you change the reality of how women experience these things.83

69.Sue Coe rejected the suggestion that the lack of recommendations for legislative change weakened the EHRC recommendations, adding that shifting behaviours and attitudes was “a really tough thing to do” and was desperately needed.84 The Minister also told us that the law was clear and stated that the focus should be on enforcement.85 We examine these issues in more detail in the following chapters.

70.We find it shocking that the number of new and expectant mothers feeling forced out of their job has nearly doubled in the past decade. It is difficult to accept the EHRC’s characterisation of this as solely an issue of misinterpretation of the law. We are persuaded that additional protection from redundancy for new and expectant mothers is required. The Government should implement a system similar to that used in Germany under which such women can be made redundant only in specified circumstances. This protection should apply throughout pregnancy and maternity leave and for six months afterwards. The Government should implement this change within the next two years.

The EU context

71.The rights and protections available to new and expectant mothers under UK employment law go beyond what is required by EU law. We hope that the Government is committed to not only retaining but enhancing the current level of protections available to new and expectant mothers when the UK leaves the EU. Given the uncertainty about what a UK exit will mean, a statement of the Government’s intention to ensure that those rights and protections are not eroded would provide welcome reassurance during this period of transition.

31 Q1 [Elizabeth Duff]; Q2 [Rosalind Bragg]; Q4 [Catherine Rayner]; Q36 [Scarlet Harris, Siobhan Endean]; Working Families (MPD0005); National Childbirth Trust (MPD0015); Chwarae Teg (MPD0016); Pregnant Then Screwed (MPD0017); Maternity Action (MPD0024)

32 Q2

33 Q4

34 Qq36-38, 56 [Siobhan Endean]; Qq12, 14 [Catherine Rayner]; Alexandra Heron (MPD0010); Pregnant Then Screwed (MPD0017); Your Employment Settlement Service (YESS) Law (MPD0019); Maternity Action (MPD0024)

36 Q6

37 Sarah Barton (MPD0029)

42 See Background for a more detailed explanation of employers’ health and safety obligations.

43 Q128

44 Q47

45 Maternity Action (MPD0024), para. 21

46 Ibid, para. 22

47 Maternity Action (MPD0024), paras. 22 and 26

48 Q125

49 Q166

51 Q16; see also Maternity Action (MPD0024), para. 23

52 Q16

53 Q43

54 Citizens Advice (MPD0027), paras. 5.2 and 6.3; Q12 [Catherine Rayner]

55 Citizens Advice (MPD0027), para. 6.2

56 Ibid, para. 5.2

57 Q12

59 Q56

60 Working Families (MPD0005), para. 3.3

61 Citizens Advice (MPD0027), para. 6.3

62 Qq36-38

63 Q12

64 Q136

65 Q2

67 Q56

68 Your Employment Settlement Service (YESS) Law (MPD0019);

69 Maternity and Parental Leave Regulations, etc. 1999, regulation 10

70 Alexandra Heron (MPD0010); Your Employment Settlement Service (YESS) Law (MPD0019); Maternity Action (MPD0024); Siobhan Endean, Q56

71 Maternity Action (MPD0024), para. 11

72 Your Employment Settlement Service (YESS) Law (MPD0019)

73 Your Employment Settlement Service (YESS) Law (MPD0019)

74 Ibid.

75 Alexandra Heron (MPD0010), para. 6

76 Maternity Action (MPD0024), para. 11

77 Your Employment Settlement Service (YESS) Law (MPD0019)

79 Q118

80 Q28 [Rosalind Bragg, Elizabeth Duff]; Q36 [Siobhan Endean]; Pregnant Then Screwed (MPD0017)

81 Q36

82 Q56

83 Q133

84 Q133

85 Q171

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4 August 2016