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Urgent action needed to quell rise in pregnancy and maternity discrimination

By Richard Dunstan, Workflex blog editor

Camilla, pregnant and until very recently working 30 hours per week as a hotel cleaner on a zero-hours contract, contacted the Working Families legal helpline earlier this year after being summarily dismissed for taking time off work due to a pregnancy-related illness. The helpline team considered Camilla to have a strong claim for unlawful pregnancy-related dismissal, but she was unwilling to risk up to £1,200 of her savings on issuing and pursuing a tribunal claim. Not without difficulty, Camilla had managed to save just over £3,000 to cover the extra expense she knew would come with having a baby – not least because she would receive only the statutory rate of maternity pay while on maternity leave. And those savings meant that Camilla was ineligible for any remission of the fees.

Year after year, the Working Families legal helpline team deals with dozens of such cases. And, in recent years, the team have sensed that such unlawful treatment of new and expectant mothers at work is becoming both more common, and more blatant. Now, the first findings of a £1 million, joint research study by the Department for Business, Innovation & Skills (BIS) and the Equality & Human Rights Commission (EHRC) – the largest ever study of its kind – suggests such discrimination is indeed more widespread than ever.

The 18-month research study – launched by the then minister for women and equalities, Maria Miller MP, in October 2013 – included interviews with 3,034 employers, and with 3,254 mothers of a child aged between nine and 24 months who had worked during pregnancy. This provides a robust evidence base on the scale and nature of the discrimination experienced by women, and on employer attitudes and approaches to managing pregnancy, maternity leave, and return to work.

The key BIS/EHRC research findings

Despite more than four in five of the more than 3,000 employers surveyed agreeing that it is in the interests of their business to support pregnant employees and those on maternity leave, and a similar proportion considering the statutory legal rights relating to pregnancy and maternity to be both reasonable and easy to implement, the BIS/EHRC research study found that:

  • Unlawful maternity and pregnancy discrimination is now more common in Britain’s workplaces than ever before, with as many as 54,000 pregnant women and new mothers – one in nine – forced out of their job each year. This is almost twice the figure of 30,000 suggested by similar (but less robust) research undertaken a decade ago by the then Equal Opportunities Commission.
  • Single mothers, and younger mothers (under 25), are at particular risk, especially during pregnancy and maternity leave.
  • Women working in adult social care, childcare, hairdressing and other service occupations are most likely to experience unfavourable treatment during pregnancy. In these sectors, hundreds of thousands of women are employed on zero-hours contracts and other forms of precarious employment that offer little in the way of guaranteed hours or job security.
  • One in 12 of the women who had attended a job interview while pregnant reported being asked during interview whether they were pregnant, and a shocking one in four of the employers surveyed (wrongly) believe that it is reasonable to ask women candidates about their plans to have children.
  • One in 10 of the women surveyed said they were discouraged from attending antenatal appointments, and one in nine reported being encouraged to start maternity leave earlier than they wanted to.
  • Two in five of women said they would have liked to work more flexibly upon return from maternity leave, but did not ask to do so as they were concerned it would not be approved or that it would result in negative consequences.
  • Only one in 12 of those women who raised a concern about their treatment at work obtained legal advice from an external advice provider such as a law centre or CAB.

A clear need for urgent government action

Final BIS/EHRC research reports will be published later this year, alongside EHRC recommendations for policy action by government, but it is already clear that ministers need to take prompt, robust and effective action to ensure job security for all working women during pregnancy and maternity leave. Working Families and our partners in the Alliance Against Pregnancy Discrimination – including the Fawcett Society, Maternity Action, the NCT, the TUC, and the Royal College of Midwives – believe this must include:

  • The BIS/EHRC research confirms what Working Families and others have been saying for many years: that pregnancy and maternity discrimination is both widespread and deeply entrenched, with a significant minority of employers holding outdated and wholly inappropriate attitudes. This is bad for women and their families, bad for gender equality, and bad for the economy.
  • Ministers sending a strong message to employers that there is simply no excuse to flout the law on pregnancy and maternity discrimination.
  • Developing a strong, high-profile information campaign aimed at improving both women’s awareness of their rights, and employers’ understanding of their legal obligations and the business benefits of ‘doing the right thing’.
  • Delivering a significant injection of funding into the specialist information and advice services that pregnant women and new mothers clearly need to help protect their rights at work.
  • Improving women’s access to justice, including by scrapping the employment tribunal fees of up to £1,200 introduced in July 2013. It is now abundantly clear that these fees amount to nothing less than a charter for dinosaur and rogue employers (see our recent submission to the Justice select committee’s ongoing inquiry into the impact of the fees).

Manifesto 2015: how does Labour measure up?

In the second of our series of Workflex posts assessing the likely manifesto pledges of the main political parties, Richard Dunstan looks at how Labour Party policy measures up against our own ‘Families & Work’ manifesto for May 2015.

On the eve of its conference in Manchester, Labour released the annual report of its National Policy Forum (NPF), which oversees the development of party policy. At 218 pages, the report is almost three times as long as the Liberal Democrats’ pre-manifesto. And, with most of those pages consisting entirely of densely typed text, it’s a tome that is unlikely to be read cover-to-cover by anyone other than hard-core party members. But having been agreed by delegates in Manchester, the document now forms Labour’s “official policy programme”. So how does this programme measure up?

Time and equality

While there is disappointingly little mention of fathers – and certainly nothing to match the Liberal Democrats’ headline promise of six weeks’ statutory paternity leave – the NPF report rightly notes that the right to request flexible working has been weakened by abolition of the statutory procedure.” It pledges “Labour will support flexible working for parents, and will consider how best to support grandparents who need to fit the care of their grandchildren around their working hours.”

Labour will also “examine ways to improve support for those who are bereaved, including how flexible working rules can be used to support them.” However, the report is silent on whether Labour will continue with, tweak, or ditch the right to shared parental leave (SPL), which will have come into force just one month before the next government takes office. In our ‘Families & Work’ manifesto, we call for reform of SPL so as to simplify the legal framework, open eligibility to all fathers from Day One of their employment, and enable SPL to be taken on a part-time basis.

There is welcome recognition of the proliferation of pregnancy and maternity discrimination in UK workplaces in recent years, and a pledge to “close legal loopholes which allow pregnancy discrimination.”  More broadly, there is a “commitment to ensuring that all workers are properly protected in the workplace” and to “acting to end unfair practices and abuses in the labour market.” However, the NPF report does not explain how “increased protection for agency workers” will be enforced by an employment agencies inspectorate that, since 2010, has been reduced to a rump of just three staff.

But it is one of the few more specific policy pledges that is also the most significant. Noting that the hefty, upfront employment tribunal fees introduced in July 2013 have “resulted in prohibitive costs locking people out of justice they are entitled to”, the NPF report commits Labour to abolishing the fees regime and replacing it with “a system where affordability will not be a barrier to justice”. This would be a very welcome move, as restoring access to the tribunal system is essential to tackling pregnancy and other discrimination in the workplace, and to underpinning the newly-extended right to request flexible working.

Money

One of the few policy announcements in Manchester to grab headlines was leader Ed Miliband’s pledge to raise the National Minimum Wage (NMW) rate to £8.00 per hour “by 2020”, which in practice means from 1 October 2019. This put flesh on the bone of the NPF report’s commitment to giving the Low Pay Commission a “new framework” with a “strengthened role in tackling in-work poverty,” and a “five year target” for increasing the NMW rate “so that it gets closer to average earnings.” The proposed hourly rate of £8.00 from October 2019 would raise the NMW from 54 to 58 per cent of the median wage, but still leave it some way short of 66 per cent, the standard definition of ‘low pay’.

Interestingly, the NPF report also states that HMRC’s role in enforcing the NMW “should be expanded to include non-payment of holiday pay” and that Labour “will also consider expanding enforcement to include non-payment of statutory sick pay and statutory maternity, paternity and adoption pay.” That would be very welcome.

Disappointingly, there is no commitment to addressing the ludicrously low rate at which statutory maternity, paternity and adoption leave are currently paid. In our ‘Families & Work’ manifesto, we call for restoration of the real value of such pay, lost as a result of the one per cent cap on annual uprating since April 2013, and a programme of annual, real-terms increases to bring parity with the NMW within ten years.

On Universal Credit, the NPF report promises “a full review” and, if it goes ahead, “major changes [to] ensure the system makes work pay for both first and second earners … and is easy to access.”  This would be welcome.  In our ‘Families & Work’ manifesto, we suggest the potential of Universal Credit to ensure that work really does pay could be enhanced by (a) introducing a work allowance for second earners, and (b) strengthening safeguards to prevent parents being pushed into family-unfriendly jobs by the threat of sanctions.

Childcare

The NPF report reiterates Labour’s previously announced policy of “extending free childcare for three and four year olds from 15 to 25 hours per week for working parents, paid for by an increase in the bank levy”, together with “access to ‘wraparound’ childcare from 8am to 6pm” for parents of primary school children, through their local school. The report states this will “benefit those families that most require childcare support and currently struggle to find good quality before-and-after school care.”

Clearly, any increase in the provision of free childcare is welcome. But, as with the Liberal Democrats’ pre-manifesto, Labour’s offer falls a long way short of the “national strategy on childcare, aimed at delivering universal access to good quality, affordable childcare within ten years” that we call for in our ‘Families & Work’ manifesto.  And again it is disappointing to find no specific pledge to address the harsh childcare crunch faced by parents of disabled children – the subject of a recent parliamentary inquiry.

[The next post in this series will look at how the Conservative Party’s policies measure up against our ‘Families & Work’ manifesto]