Pregnancy discrimination: Government action is long overdue and misses the point
Today the government published its long overdue response to the Women and Equalities Select Committee report on pregnancy and maternity discrimination. Given that the EHRC estimate that some 54,000 women are forced out of their jobs per year due to pregnancy discrimination, and the Women and Equalities Select Committee published their report in August 2016, by my (rough) calculation, 22,500 women have lost their jobs in the time it’s taken ministers and civil servants to mull over the report.
So, what has the government come up with in response to the Women and Equalities Select Committee report?
The big headline is that the government will give further consideration to the Women and Equalities Select Committee’s proposal that greater protections from redundancy should be given to pregnant women and mothers, along the lines of the German system where women can only be made redundant in specific circumstances.
Sounds good, right?
But we already have protections from discrimination and a right to be offered any available suitable alternative work if made redundant during maternity leave. Yet in spite of these protections, the EHRC found that around one in nine mothers (11%) reported that they were either dismissed; made compulsorily redundant, where others in their workplace were not; or treated so poorly they felt they had to leave their job.
Intrigued by the German Kündigungsverbot system (please don’t ask me how you pronounce it), I contacted German trade union policy officers to find out a bit more about how it worked. The short answer was that there is indeed a high level of protection from dismissal for pregnant women and new mothers in Germany, but that there are pitfalls and it’s far from perfect.
The EHRC’s comprehensive and authoritative research into pregnancy discrimination did not suggest that the cause of widespread pregnancy discrimination was a lack of robust law to protect pregnant women at work. What it found was that employers are often unaware of their legal obligations and that many employers are routinely flouting the law, presumably feeling safe in the knowledge that less than 1% of women will take a tribunal claim against their employer for pregnancy discrimination.
The TUC, trade unions, Maternity Action, the EHRC, the Women and Equalities Select Committee and others have also pointed to the obvious gaps in maternity protection for women who are workers rather than employees, such as lack of paid time off for antenatal appointments for agency workers. Rather than commit to take action to close this gaping loophole, the government’s rather lukewarm response simply refers to the fact that the government will be reviewing employment practices as part of the Taylor review. I am not filled with confidence.
The government’s response is equally lacklustre when it comes to the question of how existing protections employment and health and safety protections are enforced. The EHRC found that one in five employers who identified risks took no action and one in five mothers ended up leaving employment because of the risks involved. As my colleague Hugh Robertson has pointed out today, there is clearly a need for the Health and Safety Executive to be given a greater role in researching, checking, and enforcing workplace protections for pregnant and breastfeeding women.
But the real glaring omission, in both the Women and Equalities Select Committee report and the Government’s response is the failure to address the impact that employment tribunal fees have had on access to justice.
The EHRC found that over three quarters of women (approximately 390,000 women per year) said they had a negative or possibly discriminatory experience during pregnancy, maternity leave, and/or on return from maternity leave. Yet of these women, less than one per cent took a claim to an employment tribunal.
Since the introduction of employment tribunal fees in 2013, the number of sex discrimination claims going to employment tribunal has fallen by over 70 per cent. Hardly surprising given that the fee for a discrimination claim comes in at a hefty £1,200.
The government’s response to criticisms that the fee system is pricing workers out of justice is usually to point to the remissions scheme – a system whereby some low paid claimants pay a lower fee. But only one in ten people who are earning the national minimum wage and are in a couple without children would be eligible for full remission.
The £3000 disposable capital test (basically if you’ve got more than £3,000 in savings you’re automatically ineligible for the remissions scheme) further disadvantages pregnant women who may be saving for maternity leave/the costs associated with starting a family.
Yet the Women and Equalities Select Committee could not quite bring itself to suggest scrapping these fees which are effectively a carte blanche to bad bosses. Instead they called on the government to increase the time limit and for bringing pregnancy discrimination claims and to reduce the fees in such cases. But the government’s response makes it clear that they won’t even concede these minor improvements to what is fundamentally a discriminatory system.
Finally, it would be remiss of me not to get a plug in for the role of unions in enforcing maternity protections and bargaining for enhanced parental leave and pay. The EHRC research clearly found that unionised employers had a higher awareness of pregnancy rights compared to non-unionised employers and women who are union members are less likely to be forced out of their jobs.
So rather than looking to Germany for new legislative approaches, the government could start by thinking about how to give our existing legislation some teeth.
What we need are employment rights that cover all workers – including agency workers and the many women on zero hours contracts and other forms of casualised work – not rights which only apply to an ever diminishing category of “employees”. We need better enforcement of existing protections. And we need employment tribunal fees to be scrapped so that pregnant women and new mothers aren’t forced out of the workplace and priced out of justice.