It is only February, but already 2018 has already seen a number of discrimination issues in the spotlight, from the #metoo campaign, to gender pay disparity. The Equality and Human Rights Commission recently published statistics indicating that British employers are “living in the dark ages” and have worrying attitudes to unlawful behaviour when it comes to recruiting women.
The survey of 1106 senior decision makers makes for depressing reading: 36% of private sector employers agreed that it was reasonable to ask women about their plans to have children during recruitment. 59% agreed that a women should have to disclose whether she is pregnant during the recruitment process and almost half (46%) of employers agreed that it was reasonable to ask women if they have young children. 44% of employers considered that women who had had more than one pregnancy in the same job can be a “burden” on the team. Around a third of those surveyed felt that women who become pregnant and those with young children are “generally less interested in career progression” when compared to others in their company. Perhaps unsurprisingly, ACAS reported a 10% increase in calls to the helpline last year for advice about pregnancy and discrimination issues.
Under the Equality Act 2010 it is unlawful to treat women unfavourably because of maternity or pregnancy, however the results of the survey show that employers’ attitudes are decades behind the law.
So, what can businesses do to proactively tackle this issue? In November 2017, ACAS issued some helpful guidance on pregnancy and maternity discrimination which identifies the following as key areas:
1. Develop a Pregnancy and Maternity Policy: This will ensure that employees can find out and understand their pregnancy and maternity rights and so that managers know what steps need to be taken when an employee tells her employer that she is pregnant.
2. Train staff on maternity and pregnancy awareness: It is important that employees understand what pregnancy and maternity discrimination is and how this can be avoided.
3. Train managers about dealing with pregnancy and maternity: This should include setting the right tone from the first conversation when the employee tells them they are pregnant. Managers who are confident about the process are going to be much better placed to help an employee prepare to leave work and have her baby and to return after maternity if that is what she intends to do. Managers should also plan how they will keep in touch with an employee during maternity leave to ensure that the employee is kept in the loop with the business and does not miss out on any pay rises, or promotion opportunities during maternity leave.
4. Avoid stereotyping women who are pregnant or on maternity leave by making assumptions about that their motivations: Stereotyping tends to foster prejudiced attitudes and, whether intended or not, can have negative repercussions. ACAS highlight some of the common assumptions made about employees who are pregnant including that they will have more time off, will be less interested in their career or unreliable because of pregnancy or maternity. These types of attitudes can lead to employers making discriminatory decisions about the pregnant women in their workforce, for example giving an employee returning from maternity leave a less challenging workload or side-lining them, singling out new mothers for redundancy, mishandling requests for flexible working, and making inappropriate comments about pregnancy which constitute harassment. These are all issues that could end up being played out in the Employment Tribunal, which is costly and damaging for businesses.
5. Ensure that redundancy situations are handled fairly: Redundancies can be difficult and it is important to ensure that non-discriminatory selection criteria is used so that employees who are pregnant or on maternity leave are not treated unfavourably. Also bear in mind that in certain situations employees on maternity leave will have an automatic right to be offered any suitable alternative vacant positions.
It is interesting to note that the ECHR survey found that despite holding some obviously discriminatory beliefs about pregnancy and maternity, 76% of employers agreed with the premise that “supporting pregnant women and those on maternity leave is in the best interests of the organisation.” Eliminating discrimination is not only about keeping within the law. It is ethically and commercially important for businesses to value and promote diversity. Doing so will improve team spirit, and help attract motivate and retain staff. The ECHR have launched a “Working Forward” campaign to tackle the issue and Margot James MP has promised a government consultation on the issue, promising a “zero tolerance” approach to discrimination against new and expectant mothers. Perhaps then there is some hope for a brighter future.
Chloe Ricciardi is a Senior Associate in the Employment Team at Ashfords LLP.