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Consultation on Extension of 'Protected Period'

In the News

The Government has launched a consultation under which it proposes to enhance legal protection for pregnant women and those on maternity leave by extending what is called the ‘protected period’ to up to six months.

This protected period explicitly protects pregnant women and those who have recently given birth from discrimination as a result of taking maternity leave or their status as a new mother.

Under the current law, the protected period runs from the beginning of pregnancy to the end of maternity leave (or two weeks after the end of pregnancy, if maternity leave does not apply).

Why Consult?

IFF Research Ltd conducted research into pregnancy and maternity-related discrimination on behalf of the Department for Business, Innovation and Skills (BEIS) and the Equality and Human Rights Commission (EHRC).  They found that:

  • 1 in 4 mothers reported a negative or possibly discriminatory experience during pregnancy, maternity leave and / or on return from maternity leave;
  • 1 in 9 reported feeling forced out of their job, including: being dismissed; being made redundant where others in the workplace were not; and experiencing such poor treatment, they had no choice but to leave (constructive dismissal); and
  • 1 in 5 said they experienced harassment or negative comments in relation to their pregnancy.

The research also found a culture of discrimination in relation to pregnant women and new mothers. Around a quarter of employers felt it was reasonable to ask women about their future plans to have children and 40% of employers said they would avoid hiring a woman of childbearing age.

Bias exists, whether conscious or unconscious, in relation to working mothers and mothers-to-be, particularly when businesses are making decisions surrounding recruitment, retention and promotion.

Small businesses in particular may argue there are objective business reasons why they need to ask these questions, given the practical difficulties many of them face when managing an employee’s maternity leave and return to work.  Notwithstanding this, where a woman is treated less favourably because she is pregnant or is/has been on maternity leave, this will amount to unlawful discrimination.

Accordingly, the Government cites ‘tackling discrimination and changing the culture which can exist around mothers and the workplace’ as key reasons for this consultation.

The true picture may be even worse than the above suggests, as some women have been prohibited from disclosing details of their experience with maternity and / or pregnancy discrimination as a result of signing non-disclosure agreements (where they receive a payment in exchange for their silence). Given the physical, emotional and mental effect of having given birth and then having to fight for a position they should, by law, be entitled to return to, it comes as no surprise that many women reported feeling as though they had little choice but to sign the non-disclosure.

What pregnancy and maternity discrimination may look like

Here are some examples of treatment which may amount to discrimination (depending on the facts):

  • Making an employee who has just returned from maternity leave redundant;
  • Dismissing an employee whilst she is on maternity leave;
  • Promoting one employee over another where one has just returned from maternity leave;
  • Failing to reinstate an employee who has been on maternity leave to her original role;
  • Telling a pregnant employee she cannot carry out a particular task due to health and safety reasons; and
  • Allowing inappropriate and offensive comments about a pregnant employee to be made in the office.

What this means for your business

If this enhanced protection is implemented for pregnant women and women on maternity leave, your policies and handbook may need updating.

We can help with that, should the need arise, but for now, we’d recommend that you await the outcome of this consultation.

Consultation-aside, even if the new proposals aren’t implemented, you may need to work at challenging the assumptions in your workplace, and the attitudes which your managers/staff have towards women of childbearing age and returning mothers; if you don’t, you are exposing your business to the risk of a claim.

Non-disclosure agreements should not be looked upon as a ‘quick-fix’ or cure. So-called “gagging clauses” in such agreements to try to “hush up” inappropriate conduct have been the subject of much criticism lately as part of the #metoo movement.  Whilst not currently illegal, the use of these clauses is being reviewed by the Women and Equalities Select Committee to determine whether they remain appropriate.

In any event, these clauses are arguably “too little too late” given that the (allegation of) discrimination has already occurred; instead, prevention is key, and so we have outlined some best practice tips you can adopt for managing maternity leave:

  • Where an employee exercises her right to go on maternity leave, keep communication open throughout the maternity leave as to when she would like to return etc;
  • Invite employees on maternity leave to events e.g. work seminars, office parties, social events;
  • Encourage KIT (Keep In Touch) days;
  • Have a meeting before the employee’s return to let her have a platform to raise any concerns about returning and form action plans as to how these can be addressed;
  • Do not unreasonably deny flexible working requests. If you do want to refuse a request, make sure you have gone through the proper process, have dealt with the request reasonably and have a legitimate business reason for doing so;
  • Whilst you can make changes to an employee’s role or dismiss her during her maternity leave/immediately on her return, you should be cautious when doing so, making sure that there are clear and objective business reasons behind your decisions (which don’t relate to her pregnancy/status as a new mother) and that you carry out a robust procedure, which you can defend if challenged; and
  • Given the potential pitfalls, we’d strongly recommend taking specific legal advice when managing pregnant or newly returned employees.

This bulletin was written by Jessica Lee, Trainee Solicitor, and Laura Darnley, Associate.

Should you require support in regard to any discrimination claim,  or any of the other issues covered in this bulletin, please get in touch with Laura Darnley, Associate.

This bulletin contains general overview information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.