IWD: Access to justice for working mums: so near and yet so far

28 February 2017

It almost goes without saying that a woman's home and family life can directly, and indirectly, impact her career. As we wrote about last year, the Women’s Equality Committee (WEC) published a report on pregnancy and maternity discrimination (see here). The report included some shocking findings. The number of expectant and new mothers who felt they had been pushed out of their jobs following their pregnancy or maternity leave has almost doubled since 2005, and 77% of women reported negative experiences at work related to their pregnancy or maternity.

This isn't just a women's issue, but an issue for our whole workforce, society and economy at large. Aside from the personal impact on each individual and family affected, looking at the statistics, one can't help but also think about the waste of talent, experience and potential that those figures represent.

The law does provide protection for employees during their pregnancy and maternity. However, despite this, so many struggle to enforce their rights or are dismissed and then settle their claims because they are at a vulnerable time of their lives. Often, early settlement is the best decision for the individual and family concerned. Yet, it fails to hold discriminating businesses to account in our legal system. The WEC report, along with anecdotal experience, shows the law clearly isn't working as well as it should.

The government responded to the WEC report in January and, in particular, it pledged to consider the issue of redundancy during pregnancy and maternity leave further and "ensure that the protections in place for those who are pregnant or returning from maternity leave are sufficient". The response also talks of improving access to information for individuals and employers, to ensure that both parties are aware of their rights and responsibilities. Whilst there is information out there already, the government is going to look at ways to make this more "joined up".

However, the government’s response did not properly cover the issue of Employment Tribunal (ET) fees.  We had to wait until later in the month for the government to separately report on the impact of ET fees generally. 

By way of background, ET fees were introduced in 2013 and it now costs £1,200 to take a discrimination case to full hearing (excluding the costs of legal representation). The WEC report had noted that, with particular reference to new and expectant mothers, ET fees are a barrier to justice because they are “out of all proportion” to what is affordable on current rates of maternity pay. This means that those who are suffering pregnancy or maternity discrimination are struggling to assert their legal rights, because costs are “incredibly high and […] are not necessarily recoverable”.

The calls for change did not just come  from the WEC but also come from the House of Commons Justice Committee, which said last year, having gathered evidence, that “further special consideration should be given to the position of women alleging maternity or pregnancy discrimination..”.

The government acknowledged the concerns of the WEC, but then went on to hold that its "assessment of the evidence is that the fall in these types of complaint has been consistently much lower compared to other types of discrimination complaint, and compared to the overall fall in complaints. There is, therefore, no evidence that these types of cases should be treated more favourably in relation to the fees charged."

But when the research and statistics highlight such a big impact on working mothers and pregnant women, and the calls for change come from such a broad range of sources, how can such calls be rejected so readily?

Society's attitudes cannot change to the extent needed to have true equality between the sexes until this issue is addressed. In 2016, My Family Care found that only 1% of men took shared parental leave (SPL) (note: this is out of all men, not just those entitled, so the statistics are perhaps not as helpful as they could have been. It is clear though, that the take up of SPL is low). Affordability is a big issue, as is women being prepared to "give up" their maternity leave. Further, just over half of the respondents believed that taking SPL could negatively affect a man's career. The worry for some is that SPL for men may have the same effect for them as maternity leave has for women…namely stereotyping, impacting their careers, being looked over for promotion, not getting that bonus award etc…Men who want to take SPL are worried about the notion that they may suffer the same type of discrimination which working mothers and pregnant women suffer.

Both parents need their own, independent entitlements to family leave so that it is not the case of one "losing an entitlement" for the other to benefit. We also need to continue to break down some of the misconceptions that surround having a family—that you “go off the boil”, or no longer “care” quite as much about your career. Having some time out to have a child needs to become normalised, for both sexes, so that businesses lose the fear that surrounds it. Smaller businesses would perhaps also benefit from more practical and financial assistance. Ultimately though, society must no longer see this as a women's issue. It is, of course, to a certain extent, but it is also much wider than that.

Kingsley Napley are proud to support the #BeBoldForChange campaign and are publishing a series of blogs to promote discussion around gender and the continued relevance of International Women’s Day.

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