Employers are increasingly utilising ‘gagging orders’ when settling pregnancy- and maternity-related discrimination claims, according to research from Direct Line Group.
More than four in five (84%) employment law experts said they have seen an increase in the number of non-disclosure agreements (NDAs) used by employers following pregnancy- and maternity-related disputes in the past 12 months.
Employment lawyer Yunus Lunat told BBC News that pregnancy discrimination is happening "on an industrial scale" and that 99% of cases are covered by NDAs. "Employers feel they can get away with it, because the employee is offered a sum of money, nowhere near what should be adequate to compensate, but offered a sum as an inducement to leave," he said.
The Direct Line Group research, which surveyed 104 employment law practitioners between 13 and 18 March 2019, also found that more than two-thirds (71%) reported an increase in disputes where employees’ working hours were reduced when they returned from maternity leave.
It also found that unfair dismissal cases had risen, with 70% saying they had witnessed an increase in women claiming they were fired while on maternity leave. Additionally, 63% had seen a rise in claims from those made redundant while on maternity leave and 64% where women were demoted on returning to work.
The law states those returning to work after ordinary maternity leave (the first 26 weeks of maternity leave) have the right to return to their old job on their old terms and conditions. If a parent takes additional maternity leave (a second six months of leave) they have the right to return to their old job on their existing terms and conditions unless it is 'not reasonably practicable', in which case they must be offered a suitable alternative job with similar terms and conditions.
This research coincides with Conservative MP Maria Miller introducing a bill for greater job protection for mothers and pregnant women on Tuesday, with its second reading taking place today (Wednesday 22 May). The Department for Business, Energy and Industrial Strategy (BEIS) launched a consultation in March on extending protection from redundancy for working mothers to six months after they return to work. But the move was criticised by campaigners for not going far enough.
Miller, who is also chair of the Women and Equalities Committee, said the government should adopt a German-style system where pregnant women cannot be made redundant without the approval of a public authority. She said that, under the bill, this rule would apply unless the company was about to close down.
Rebecca Hilsenrath, chief executive at the Equality and Human Rights Commission, commented that it was clear women need greater legal protection. “Far too many employers are still living in the Dark Ages when it comes to pregnancy and maternity rights. We have come across some truly shocking instances of pregnant women and new mothers being blatantly discriminated against at work, in spite of legislation having been in place for decades to prevent it,” she said.
Joeli Brearly, founder of Pregnant Then Screwed, said that the research reveals the extent of maternity discrimination at work: ''This results of this research do not surprise us. The Government’s own research shows that the number of women experiencing pregnancy or maternity discrimination has almost doubled in the last 10 years."
She called for a number of reforms from employers and policy makers:
"We want to see properly funded ring-fenced paternity leave, a body established to monitor the use of NDAs which has the jurisdiction to act and investigate, properly subsidised childcare from 9 months old, the time limit to raise a tribunal claim raised from 3 months to at least 6 months, and legislation which ensures companies are encouraged to adopt a flexible working culture for all employees. This is how we create change and ensure the labour market works for everyone.’'
Hilsenrath conceded that employers must be made aware of the changes for progress to be made: “We believe women need better legal protection to ensure they are not unfairly made redundant when they are pregnant, on maternity leave or have recently returned. This would be a positive step towards ensuring workplaces are the best they can be for pregnant women and new parents. These legal changes must be matched with action to ensure employers are aware of and are meeting their legal obligations.”
The Direct Line Group research found that fathers are also facing ill treatment. Sixty-one per cent of employment law professionals said they have seen an increase in disputes related to promotions while the claimant was on paternity leave. Legal experts have also seen an increase in men claiming unfair dismissal (59%) and pay disputes (58%) while on paternity leave.