Why is maternity discrimination on the rise?

Unscrupulous employers may be taking advantage of new parents that can’t afford to challenge them

Becoming a parent is one of many people’s most treasured moments, yet it can also be one of the most stressful. The huge additional caring and financial responsibilities that come with a new baby means working parents need the support and understanding of their workplace.

But official figures suggest this is simply not happening. According to the House of Commons Women and Equalities Committee’s recent Pregnancy and maternity discrimination report there has been a rise in maternity discrimination over the past decade.

According to data from the BIS and EHRC report Pregnancy and Maternity-Related Discrimination and Disadvantage: Experiences of Mothers more than three-quarters (77%) of mothers experienced at least one potentially discriminatory or negative experience in the workplace, and 61% reported two or more such experiences.

So why are businesses still failing to provide a discrimination-free environment? Paula Chan, senior associate in the London employment team of law firm Slater and Gordon, tells HR magazine that the wider legislative environment could be to blame for the rise.

“Tribunal fees have certainly had an impact,” she says. “If you have a new baby you need to prioritise things like nappies and food over such fees. If you’ve also lost your job it can be very hard to find the money for [tribunal fees].”

Statutory maternity leave pay is £139.58 or 90% of the parent’s average weekly earnings (whichever is lower) after their first six weeks of leave. Tribunal fees currently cost £1,200 – eight-and-a-half weeks of a new parent’s pay.

Chan adds that tribunals hold little power to improve organisations for anyone other than the claimant. “The Deregulation Act 2015 removed the ability for tribunals to make recommendations to the whole business,” she explains. So where a tribunal used to be able to suggest improvements to a firm’s procedures, for example, now recommendations can only be made in relation to the claimant.

“The message the government is sending is that businesses should be protected above individuals,” adds Chan. “Businesses must be protected but we need to see a better balance.”

The fact some people will be financially unable to bring a claim against an employer could mean more unscrupulous organisations are taking advantage of pregnant workers, says Mubeen Bhutta, head of campaigns and policy at charity Working Families.

“We have seen a rising category of rogue employers who are well aware that the [tribunal] fees create a major barrier to people bringing claims against them,” she says.

Working Families has files full of case studies of mothers who have experienced maternity discrimination. It assisted in one case where a mother, during her second maternity leave, was told her job had permanently been given to someone else because she would have too many responsibilities outside of work. Her employer claimed it was within its right

to not keep the woman’s job open because it deemed it not reasonably practicable for her to do her job anymore. To tackle these “rogue employers” Bhutta calls on the government to committ to abolishing tribunal fees, as the Scottish government has done.

However, on a more positive note, one of the reasons there has been such a marked increase in maternity discrimination could come down to better reporting, according to Elizabeth Cowper,

HR director at a luxury retailer. “There is more in the press and more organisations to support women, and in turn I think this gives women more confidence to stand up for themselves,” she says.

Cowper warns of the negative impact of losing female talent once they become parents. “The company could be affected by the loss of knowledge, the time it takes to recruit and train someone new, and the emotional impact on not only the person who has been discriminated against but other employees who have been affected by the situation,” she says.

Bhutta agrees that the stress and emotional impact of discrimination often “spills over” into other areas. “It can lead to women leaving their jobs, which has an immediate impact on family income and can damage women’s chances of returning to employment in the longer term. And, worryingly, it sends the message that it is difficult for women to combine having a family with working.”

Fathers must also be considered, she adds, in tackling cultural issues that can lead to discrimination against women. “One of the ways to tackle the ‘motherhood penalty’ is to increase rights and leave for fathers so that this doesn’t remain simply an issue for women,” she says. “We’d like to see a longer period of paid leave just for fathers, and allowing men to take paternity leave from day one in a new job would be a welcome first step.”

The Women and Equalities Committee has also called on the government to take action, with chair Maria Miller criticising its approach for lacking “urgency and bite”.

“[The government] has stated that it is important to focus on enforcement and yet its main policy focuses are awareness-raising and persuasion,” Miller has said. “It needs to set out a detailed plan outlining the specific actions it will take to tackle this unacceptable level of discrimination. This work must be underpinned by concrete targets and changes to laws and protections.”

The Committee has recommended extending maternity-related rights to casual, agency and zero-hours workers, and increasing the three-month time limit on pregnancy and maternity discrimination tribunals to six months.

However, businesses also need to step up. Barclays is one of a number of organisations who have joined the EHRC’s Working Forward campaign, which aims to reduce pregnancy and maternity discrimination at work.

The bank’s global head of diversity and inclusion Mark McLane says focusing on line managers is critical: “We’ve set up a line manager to line manager system where they can go to others for help, and provide case studies to reduce uncertainty in team leaders. You already have one of the best resources. You can ask staff who became parents to share their experiences, and use that to understand what new parents need.”

Barclays also uses an app to stay in touch with parents when they are away from work, to ensure they still feel included. “It helps people to stay connected without feeling tethered,” McLane says.

As Cowper concludes: “Companies need to play fair too. Employees are absent from work for varying reasons, such as illness, a sabbatical or maternity leave, and, regardless of the reason, each and every employee deserves to be treated fairly.”