Has pregnancy discrimination really stopped, or is it well hidden?
Smith Partnership's Employment Lawyer, James Johnson, comments on a recent BBC news article that informs us that ‘around 1 in 9’ new mothers have lost their jobs, in a survey in which more than 3000 women were interviewed. The women who had left their employment stated they had either been dismissed, made redundant or been forced out of their employment by the behaviour of their employers. The report publishing these findings was made by the Equality and Human Rights Commission in 2015, and the statistics were remarked on last year by the government as being ‘shocking’ with a call for added protection, including extended time-limits for pregnant women or those on maternity leave to bring claims, but to date we still have no movement on added legal protections.
On the face of it, the law does protect women from pregnancy or maternity discrimination, with dismissals being automatically unfair where they are connected to pregnancy/ maternity. Further, women who are made redundant whilst on maternity leave, must be preferred for any alternative employment available with the employer, provided it is suitable and they have the competency for the role, even if they may not be the best candidate. However, where there is a weakness is that women who are dismissed during pregnancy or maternity are unlikely to want to commence and pursue litigation during a time that they will wish to be focussing on their family, leaving employees often in a position where they will settle claims “out of court” rather than face the hassle and stress of legal proceedings.
As stated in the article, employers will often use settlement agreements as a ‘cover up’ for any such detrimental treatment, but employers should be warned that “protected conversations” through which settlement agreements are normally offered will not cover discrimination, and the conversation and offer made could end up being relayed before an employment tribunal.
The article refers to settlement agreements containing ‘confidentiality clauses’ colloquially known as ‘gagging clauses’ which stop the women concerned from reporting what has happened to them or disclosing that they have been “paid off”. The call therefore is that similar to whistleblowing, where confidentiality agreements cannot prevent whistleblowing disclosures, employers should be prevented from silencing pregnant or women on maternity leave to stop them revealing the poor treatment meted out to them. Further, there is a call for absolute protection from women being made redundant whilst on maternity leave. Whatever happens, something needs to change as dismissals based on a person being pregnant or on maternity leave is frankly absurd in 2017!
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