Overdue: a plan to tackle pregnancy & maternity discrimination

In 2005, three years before the global financial crisis of late 2008 and subsequent economic recession, a landmark study by the Equal Opportunities Commission found that half of all pregnant women suffered a related disadvantage at work, and that each year 30,000 were forced out of their job.  Eight years on, all the available evidence suggests that such pregnancy and maternity discrimination is now more common than ever before, and that as many as 60,000 women are pushed out of work each year.

Faced with mounting evidence of this proliferation of pregnancy and maternity discrimination, key government ministers have, until very recently, simply denied that there is a problem.  But in November, announcing £1 million of funding to enable the Equalities & Human Rights Commission (EHRC) to undertake a new study of the issue, ministers finally accepted that such unlawful discrimination “remains prevalent and more needs to be done to tackle it”.

Unfortunately, since 2010 the Coalition Government has made it even harder than it was in 2005 for women to tackle such discrimination.  Access to already overstretched sources of free employment advice, such as law centres and CABx, has been shrunk by the abolition of almost all civil legal aid – since April, three law centres have closed their doors for good.  The ‘questionnaire procedure’ in employment tribunal discrimination claims – which facilitates the revealing of crucial information held by the employer but otherwise not available to the claimant – is set to be abolished in April 2014.  And, perhaps most damagingly of all, since July 2013 those wishing to pursue a tribunal claim for pregnancy, maternity or other discrimination must pay up to £1,200 in upfront tribunal fees.

Bringing a tribunal claim is a daunting challenge at the best of times, and especially so for pregnant women and new mothers: the odds are stacked against them at a time when they need to protect their own and their baby’s health, and their income.  The great majority do not have access to the support and advice of a trade union, and simply cannot afford to pay for legal advice.  The introduction of tribunal fees of up to £1,200 only serves to further deter women with well-founded claims from taking legal action.

With pregnant women and new mothers facing the biggest living standards crisis in a generation, and the Government asserting that “we cannot deal with the economic challenges we face without properly using the talents of women in the workplace”, a new report by Maternity Action – Overdue: a plan of action to tackle pregnancy & maternity discrimination now – suggests it is time for ministers to translate their grand words into action.  The scale of the problem – and the impact both on individual women and their families, and on gender equality more widely – demands a firm response from government to ensure job security for all women during their pregnancy and maternity leave.

The announcement of £1 million additional funding to enable the EHRC to undertake a new study of the incidence of pregnancy and maternity discrimination is very welcome, as is the belated recognition by ministers of the scale and systemic nature of the problem.  But the EHRC study is unlikely to report for some time, quite possibly not until late 2014, leaving little if any time for meaningful government action before the general election in May 2015.  In any case, the Government could very easily act now to better protect the rights of pregnant women and mothers at work.

Perhaps most importantly, Maternity Action says the Government should scrap – or at least reduce to a nominal level – the upfront fees for discrimination and other employment tribunal claims introduced in July 2013.  There is now a broad consensus – including both the TUC and the CBI – that the Ministry of Justice has got it badly wrong on fees, and that, at the very least, the fees regime should be “redesigned to incentivise early resolution of disputes rather than maximise revenue” for the Ministry.  In the words of the CBI, claimant “fees should never be a barrier to justice”.

Secondly, the Government should abandon its planned abolition of the ‘questionnaire procedure’ in discrimination claims.  The proposed abolition will benefit no one, and will save no public money.

Thirdly, the Government should establish a process for publicly ‘naming and shaming’ employers found by a tribunal to have broken the law on pregnancy, maternity or other discrimination.

Fourthly, the Government should take speedy and robust action to improve compliance with employment tribunal awards, to ensure that women awarded financial compensation for pregnancy or maternity discrimination by a tribunal actually receive the money due to them.

Fifthly, the Government should match its funding of the new EHRC investigation into the extent of pregnancy and maternity discrimination with funding for an information campaign aimed improving the awareness of both workers and employers of the law on such discrimination, and an injection of funding into the specialist information and advice services that pregnant women and new mothers need to help them protect their rights at work.

And, last but not least, the Government should send out a strong message to dinosaur employers that economic recession and ‘hard times’ are no excuse to flout the law.

One thought on “Overdue: a plan to tackle pregnancy & maternity discrimination

  1. Some very sensible suggestions Richard. My view:

    1. Fees should either be abolished or drastically. Perhaps an issue and response fee (i.e. both claimant and respondent to pay) and/or a shared hearing fee to incentivise settlement.
    2. I think the questionnaire procedure had some benefits, but had been brought into disrepute by lengthy requsts for irrelevant but time-consuing data, served post-issue of proceedings. Some reform but not abolition.
    3. Difficult because of the potential consequences to employers unless there is some categorisation of failure. Inadvertent / un intended indirect discrimination compared to direct discrimination or harassment for example.
    4. Yes (and why has this not been done already?)
    5. Yes (but it would also be 5th on my list of 5 in terms of priorities)

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