Written submission from Maternity Action (MPD0024)

 

 

Women and Equalities Select Committee inquiry into Pregnancy and Maternity Discrimination

Written Evidence 

  1. Maternity Action is grateful to the Women and Equalities Select Committee for the opportunity to provide oral evidence at the inquiry in March. We wanted to follow that up with a written submission to further capture our response to some of the findings in the Government’s report.

About Maternity Action

  1. Maternity Action is a national charity providing telephone advice and online information to pregnant women, new mothers and their families about maternity rights at work, maternity benefits and access to services.  Each year, parents view our information sheets over 600,000 times.  We answer 2,500 advice calls each year and receive more than 30 times more calls than we can answer due to resource constraints.

Publication of the EHRC/BIS research

  1. We welcome the publication of the final reports of research into pregnancy and maternity-related discrimination, jointly commissioned by the Department of Business Innovation and Skills and the Equality and Human Rights Commission.  We are, however, extremely disappointed that the Department for Business, Innovation and Skills delayed release of the report by several months.

 

  1. The research found that each year 54,000 women lose their jobs as a result of their pregnancy and that 77% of pregnant women and new mothers experience negative treatment. These numbers indicate the scale of the problem. And the situation is worsening. Over the course of the last year alone, the number of women who called our advice line increased by around 18%, and the numbers of women experiencing negative treatment as a result of their pregnancies has increased dramatically since the 2005 EOC research.

 

  1. The Government needs make a firm commitment to tackling pregnancy discrimination – and to commit to a robust plan of action.

 

  1. There are a number of issues on which we are calling for urgent action and these are taken in turn below.

Communications Campaign

  1. We are calling for the Government to undertake a communications campaign which brings employers, unions and voluntary organisations together to communicate the benefits to the wider community in addressing pregnancy and maternity-related discrimination and supporting women’s participation in the workforce during their childbearing years. It must be clear that through achieving compliance with the law and embedding workplace cultures which support women during their childbearing years, we will tackle gender inequality, reduce the gender pay gap and retain and engage more women in the labour market. The campaign must also highlight the business case for attracting and retaining women of childbearing age especially in relation to small and medium sized enterprises. Retaining staff reduces costs associated with training and recruitment and in turn cultivates loyalty and a good name. The campaign must also communicate the fact that the framework for protection of new and pregnant mothers is a legal one. It is not optional and there are penalties for failing to comply.

 

  1. In its response to the EHRC recommendations, the Government agreed to undertake an awareness raising campaign.  It is essential that the scope of the campaign is expanded to encompass the concerns we have outlined above.

Improving employer practice

  1. The Government’s research shows that 390,000 women each year face negative experiences and unlawful discrimination, including 54,000 women who lose their jobs.  While the majority of flexible working requests made by new mothers are being granted, two thirds of these women experience negative treatment as a result. It is important that employers are prompted to evaluate their own working practices and explore whether they can do more to support women to remain in the workplace during their childbearing years.

 

  1. To address this the Government must commit to working with employers to encourage them to evaluate the retention rates for women one year after returning to work following maternity leave as part of their gender pay gap analysis. Alongside this, it should also encourage employers to analyse the rates of women retained in the workplace one year after a successful application for flexible working requests. The Government must also work in tandem with third party organisations including recruiters and those advising recruiters, to encourage a ‘flexible by default’ approach to all work (the work is flexible unless there is a genuine business case against).

 

  1. The shocking number of women losing their jobs as a result of their pregnancy identifies the need for further protection from unfair redundancy. The legal protection conferred by The Maternity and Paternity Leave Regulations (Regulation 10) must be extended to include the period from notification of a pregnancy through to six months after return to work.

 

  1. Discrimination against women at the recruitment stage, for which there is little redress, must also urgently be addressed. The Government must invest in the EHRC to enable it to run cases on pregnancy and maternity discrimination in recruitment.  This will increase the deterrent effect of the law and raise employer awareness of the issue.

Improving access to information and advice for employers and for women

  1. Supporting women to challenge pregnancy discrimination means building women’s knowledge of their rights and providing specialist advice services to assist in resolving problems as they arise.  Employers are more likely to comply with the law if information on their legal obligations is readily accessible.  Government must commit to investing in advice services and equipping those dealing with pregnant and new mothers at the front-line with knowledge about employment rights.

 

  1. All women should be given a hard copy leaflet at their first antenatal appointment, which briefly outlines their maternity rights at work and signposts to key sources of information and advice.  The leaflet should include a tear-off sheet for women to give to their employers, which similarly lists key legal obligations and signposts to key sources of information and advice.

 

  1. Midwives, Maternity Support Worker and Health Visitors are on the front line in terms of their contact with pregnant women and new mothers and it is imperative to ensure they are in a position to provide basic information on rights at work as well as to signpost to further sources of advice and support. Government must invest in the training of these front-line workers to ensure they deliver this.

 

  1. The decision to withdraw the birth to five book resulted in the loss of an important and valued source of information and advice for new parents. The book should be introduced and must include essential information about entitlements at work for new and expectant parents.

 

  1. Women’s specialist charities offer important advice and information that pregnant women and new mothers need to help protect their rights and entitlements in the work place. The Government needs to recognise the value of these services and commit to investing in them to ensure women can continue to benefit from these resources.

 

  1. Government must also provide signposting from across its Departmental websites for women to high quality online information on maternity rights, ensuring that women can access accurate, up to date information and avoid incorrect and out of date material.

 

  1. In terms of advice for employers, the Government must provide a single website for employers to find information on maternity rights at work, bringing together the relevant Government agencies, including BIS, DWP, HMRC, HSE, ACAS, EHRC.  It must ensure that this website is kept rigorously up to date.  This should build on the EHRC toolkit for employers, released in 2015. 

Health and Safety and additional legal protection

  1. Government research found that 41% of all pregnant women and new mothers face risks to their health and safety, which are not properly managed by their employers. An astounding 4% of all pregnant women and new mothers in the workplace resign from their jobs because of concerns about health and safety and many others report taking sick leave or commencing maternity leave early as a result of health and safety concerns. 

 

  1. We regularly receive calls from women whose employer will not make the necessary adjustments to their jobs during their pregnancy – even when there are serious occupational hazards such as heavy lifting. That is why we are calling for the HSE to reintroduce the requirement for individualised risk assessments once a women notifies her employer of her pregnancy. The current obligation to carry out a generalised risk assessment which “considers female employees” is woefully inadequate in ensuring a safe working environment for pregnant women and new mothers. Because there is no requirement to consider each individual pregnant employee in the context of her specific work, many employers believe their current generic risk assessments are appropriate. As a result they are not prompted to make any alterations in respect of individual employees, even where the individual circumstances of the woman would warrant adjustments to be made.
  2. Requiring a specific and individualised risk assessment examining the suitability of the role within the context of pregnancy is not overly burdensome for employers. Individual assessments are commonplace – for example with employees returning from sick leave or who have a health condition, injury or disability. HSE needs to commit to reintroducing this requirement within its guidance to employers. It must also ensure that this protection is properly enforced. HSE must work together with local inspectors to ensure consistent examination of the suitability of general risk assessments in relation to pregnant women and new mothers, as well as ensuring inspectors request to see specific risk assessments where there is a regnant woman or new mother in the workplace.

 

  1. Where an employer refuses, or is unable, to make a pregnant woman or new mother’s working environment safe, that woman is entitled to be suspended on full pay. Yet we know from the women who call our advice line that many employers do not make adjustments to ensure safe working conditions or provide suspension on full pay.  We believe the Government should introduce a formalised “no safe work” leave for women whose midwife or doctor has certified that they cannot safely do their jobs and where no alternative safe job has been offered by the employer. This puts the onus on employers to take action on unsafe working conditions and will reduce the number of women leaving their jobs because of well-founded health and safety concerns. 

 

  1. Currently women are often forced into taking sick leave when their employer fails to properly manage health and safety risks.  Where a pregnant woman has been on unpaid sick leave or Statutory Sick Pay during that qualifying period for SMP (approximately week 19 to week 26 of her pregnancy), the rate of her SMP will be reduced as SMP is based on earning during this period. If her earnings are sufficiently low, she may not quality for SMP at all.  This is clearly extremely unfair. The Government must commit to revising the regulations so that sickness absence, unpaid leave or reduced earnings in the calculation period are ignored for the purposes of determining entitlement to SMP and the rate of SMP. 

 

  1. Many industries have unique health and safety risks which are common within their sector. The HSE must work on a sector basis, to explore the specific industry health and safety risks faced by pregnant women and new and breastfeeding mothers, and develop strategies for managing them.

 

  1. The development of model risk assessments would be very helpful for employers – especially for SMEs. HSE should work collaboratively with employers and women’s specialist services to produce sector specific model risk assessments, which would assist employers in evaluating the risks. This will also help ensure women are not discriminated against as a result of the employer’s approach to making the job safe.

 

  1. We also believe there is a need to ensure women’s health and safety, as well as that of their new babies, by introducing a new right to time off for breastfeeding and adequate facilities for doing so.

 

Access to Justice

  1. We gave evidence on tribunal fees to the Justice Committee last July. Following the introduction of the new fees system in 2013, the number of individual cases brought to the tribunal has dropped by 67%, even with the fee remission system in place.

 

  1. The overwhelming majority of women simply cannot afford the tribunal fees, especially with the financial pressures of a new family. The time limit of 3 months is a further barrier to justice. The mental and physical demands of pregnancy, birth and a new baby combined with the stress of a workplace dispute make it very difficult for women to commence action within this very short timeframe. The Government must abolish the upfront fees for employment tribunal claims for pregnant women and new mothers. It must also extend the timeline for making a claim from the existing 3 months to 6 months and develop statutory guidance for Employment Tribunal judges concerning the use of their discretion in relation to extending the time limit in claims brought by pregnant women and new mothers.

 

  1. In order to ensure justice is accessed and then delivered, the Government must also introduce further measures to improve compliance with employment tribunal awards so that women who are awarded financial compensation for pregnancy and maternity discrimination by a tribunal actually receive the money due to them.  This should be cost-free to claimants, as it is integral to the effective operation of the employment tribunal.

Monitoring progress

  1. Government research has shown a dramatic increase in pregnancy discrimination over the past decade, a change which was not identified through regular Government monitoring of trends in the labour market.  This points to the importance of a more active programme of data collection and research to keep track of what is happening to women in the workplace.

 

  1. The Government must commit to publishing on a quarterly basis the number of employment tribunal cases which are pregnancy-related and the number of such claims which have been paid in full. Alongside this, it must also publish the names of all employers who have lost employment tribunal claims relating to pregnancy and the names of all employers that have not paid claims in full.

 

  1. The Government must also commit to repeating the research into the incidence of pregnancy and maternity-related discrimination in four years’ time.

In conclusion

  1. The number of women facing pregnancy or maternity discrimination has increased dramatically in the past decade. The Government needs to show commitment and leadership in tackling the problem. We believe that there are a number of areas in need of urgent reform – to build a better understanding of the benefit to the wider community of protecting maternity rights, to protect the health and safety or pregnant women and new mothers, to improve the return to work experience for new mothers, to remove the barriers to accessing justice and to improve the availability of information both for women and employers.

 

May 2016