Working mums’ rights

Results from a recent Equality and Human Rights Commission (EHRC) survey has revealed that archaic views and attitudes towards working mothers, pregnant women and those who take maternity leave, still exist in the workplace.

Hannah King, senior associate in the employment law team explores.

What’s the law?

Sex and pregnancy and maternity are two of nine “protected characteristics” covered by the Equality Act 2010.The key points to note are, it is unlawful for an employer:

• To treat a woman unfavourably because of her pregnancy or because of an illness she has suffered as a result of her pregnancy or;
• To treat a woman unfavourably because she is on or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to maternity leave or;
• To treat a job applicant or employee less favourably than others because of their sex.

However, some employers seem to be flouting the law, as the research identified that some believed it was appropriate to ask female applicants during a recruitment process about their future plans to have children or if they have young children already.

If these questions are asked, and the applicant is then not offered the job, they could bring a discrimination claim under the Equality Act to an employment tribunal.  The compensation for a successful claim would be an award for injury to feelings, and, if the individual can successfully demonstrate that they could have got the job if it was not for the discriminatory attitudes, they could also be compensated for any loss of earnings as a result of not securing that role. 

Unfortunately, it is estimated that only around 2% of parents have utilised the Shared Parental Leave provisions which came into force in 2015.  The treatment of pregnant women or those using or returning from maternity leave, may be visible to male employees and act as a deterrent to them wanting to take on or share the leave available after the birth of their child.  This is turn maintains the status quo of placing the main share of childcare responsibilities on women, which undermines the purposes and intention of the Shared Parental Leave regulations. 

Employers are encouraged to challenge these views if they believe that there are attitudes and beliefs such as those identified in the EHRC research.  This is of particular importance to ensure that there is true equality in the workplace, and they do not miss out on attracting and retaining key female talent.  

Furthermore, for the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval. The offending employee may also be liable.

An employer can avoid liability if it can show that it took all reasonable steps to prevent its employee committing a particular discriminatory act or committing that type of discriminatory act.  This means at the very least, providing comprehensive training on the benefits of diversity and equality in the workplace to all members of staff, which is underpinned by appropriate policies dealing with equality, anti-bullying and harassment.  It is also of particular importance that this is done as a matter of course and not as a response to a particular incident or event. 

It is clear that to succeed with a “reasonable steps” defence, the employer must have taken such steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not sufficient.

If you would like to make an enquiry, contact Hannah on 01753 278659 or email employmentlaw@bpcollins.co.uk.