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The Missing Workforce: why we need additional legal rights for mothers

Mandy Bhattal and Leila Moran, of Leigh Day's employment and discrimination team, discuss the issue of discrimination faced by pregnant women and new mothers in the workplace.

Pregnant woman at work
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Mandy is a solicitor and Leila is a trainee solictor, both working with Kiran Daurka and Chris Benson in the employment and discrimination department. 
Each year there are over 0.5 million pregnant women in the workplace. Approximately 1 in 20 of these women will be made redundant during pregnancy, maternity leave or on their return to work, which means businesses are losing the talent of around 25,000 women each year because of motherhood. 

In the past year, ACAS (the conciliatory body that assists with employment claims) has noted a significant rise in queries relating to maternity or pregnancy related discrimination. This has prompted ACAS to produce new guidance regarding this area of discrimination, which was released earlier this week.

Current laws provide some protection from redundancy for mothers who are on maternity leave but fall short in providing the same protections for pregnant women or new mothers at work (although all women would have recourse to equality legislation if they are dismissed for maternity or gender related reasons).

A recent report by Maternity Action has called the current legal protections insufficient and highlights the inadequate framework in place to ensure women have access to information and advice about their maternity rights. 

A 2016 study by the Equality and Human Rights Commission (EHRC) showed that in the last decade there has been a dramatic increase in reported discrimination during pregnancy, maternity leave and by new mothers at work. An example of such a situation is when women are selected for redundancy because of their pregnancy or maternity leave. 

Where a genuine redundancy situation has arisen (such as a change in business need or closing of an office) in most cases there may be a potentially fair dismissal where there has been consultation with the affected workforce, and the selection process has been conducted in a fair and consistent manner.

Employers should also consider suitable alternative roles for staff selected for redundancy. It is not a fair dismissal if a woman is selected for redundancy because of her pregnancy, anything linked to her pregnancy, for example an illness relating to pregnancy, or maternity leave; in those circumstances, a woman would have a claim for automatic unfair dismissal and discrimination.

Often, the dismissal is not so obviously because of maternity, and may arise because there has been a restructure in the workplace whilst a woman was on maternity leave and she is not selected for redundancy until shortly after her maternity leave ends.

Under current laws, women on maternity leave are entitled to additional protections from a redundancy situation: if there is a suitable alternative role, they are entitled to be offered the role automatically without having to interview or be assessed along with other candidates. No such additional protection is offered to women during pregnancy or new mothers back at work after maternity leave. 

A further difficulty is that, like most employment claims, women have to bring a claim within three months from the date of dismissal or act of discrimination. This is an extra burden on expectant or new mothers who are often short on time, sleep and money. 

In 2016, a Select Committee reviewing pregnancy and maternity discrimination concluded that additional protection for new and expectant mothers was needed. The Government’s response to this was, essentially, that the legal protections currently in place are sufficient. The Government has since confirmed that no legislative changes are planned in this area. Given the trend revealed by the EHRC study, we think this is concerning. If the purpose of the law is to ensure that women are not disadvantaged in the labour market by virtue of having children it seems nonsensical that pregnant women or new mothers back at work should not be entitled to at least the same protections as those on maternity leave. 

Maternity Action has proposed different recommendations to help lessen the problem, such as: 
  • Extending legal protections during a redundancy situation to women during pregnancy and for six months following their return to work;
  • Extending the time limit women have in which to bring a claim to the Tribunal to six months (in recognition of the low proportion of women who pursue these claims);
  • Signposting to high quality online information on maternity rights and funding charities or organisations providing advice services to enable women to protect their rights. 

If you have been affected by any of the issues discussed, it is important that you seek advice as soon as possible due to the strict time limits imposed on bringing these types of claims. 

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