Maternity and pregnancy protection at work: a worrying attitude

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story close to home hit the headlines a few days ago, when a Cardiff woman was made redundant during her maternity leave. Iestyn Morris, from our employment team, was on BBC Radio Cymru (min 24) explaining the case this week. Here’s the legal view.

Sarah Rees, who worked for a large charity, had wanted to return to work 12 weeks after the birth of her first child. But her attempts to contact her employer were met with frosty silence. She was subsequently made redundant – and couldn’t afford to bring an employment tribunal claim.

Alarmingly, and despite it being 2018, some employers continue to hold a seemingly archaic view when it comes to female employees who are pregnant or on maternity leave. Other employers, on the other hand, have been praised in the press for their family friendly approach.

According to the Equality and Human Rights Commission, a recent YouGov survey shows that employers are “living in the dark ages” and have “worrying attitudes towards unlawful behaviour when it comes to recruiting women”.

Statistics from the survey (of 1,106 senior decision makers in business) show that around:

  • 36% of private sector employers find it reasonable to ask a woman during recruitment about her plans to have children in future
  • 46% find it reasonable to ask a woman during recruitment if she has any young children
  • 59% agree that a woman should tell them during recruitment if she is pregnant
  • 44% agree that women should work for a year before deciding to have a child, and
  • 41% believe that pregnancy puts an “unnecessary cost burden” on the workplace.

The above attitudes pose serious legal risks to employers. Pregnancy and maternity are classed as protected characteristics for the purposes of the Equality Act 2010, and discrimination on these grounds is prohibited by law – except in very limited circumstances.

From a recruitment perspective, employers should avoid irrelevant questions that relate to pregnancy or maternity at all costs, as a decision not to recruit the employee may amount to discrimination. Interviewers shouldn’t be swayed by an employee’s plans to have children, or current childcare arrangements, in deciding whether or not to employ them, even if this information is given voluntarily.

In situations of redundancy like Ms Rees’, where the position of an employee on maternity leave is potentially redundant, she is automatically entitled to be offered any suitable available vacancy within the organisation. Equally, if a woman is dismissed by reason of redundancy in breach of the maternity regulations, her dismissal will be automatically unfair.